Sharon Bennett and Charlene Thomas v Vivian Donaldson

• Jurisdiction: Jamaica
• Judge: Mangatal J
• Judgment Date: 15 March 2012
• Neutral Citation: [2012] JMSC Civ 30
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. HCV 01719 OF 2008
• Date: 15 March 2012

[2012] JMSC Civ 30

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. HCV 01719 OF 2008

Between

Sharon Bennett

1st Claimant

and

Charlene Thomas

2nd Claimant

and

Vivian Donaldson

1st Defendant

and

Vivian Donaldson

2nd Defendant

(Representative of the Estate of Ena Donaldson,) Now deceased

Ms. Danielle Archer , Ms. Shanna Stephens and Mrs. Ingrid Clarke-Bennett for the Claimant instructed by Pollard Lee Clarke And Associates .

Mr. Gavin Goffe instructed by Mrs. Elise Wright-Goffe and Co. for the Defendants .

AGREEMENT FOR SALE OF LAND—PURCHASER ENTERING INTO POSSESSION FOR A PERIOD OF TIME—WHETHER LIABLE FOR INTEREST ON UNPAID BALANCE OF PURCHASE PRICE OR MESNE PROFITS—CONSEQUENCES OF VENDORS REMAINING IN POSSESSION THEREAFTER—SPECIFIC PERFORMANCE—WHETHER VENDORS GUILTY OF WILFUL DEFAULT.

WHERE VENDOR IN POSSESSION IN DEFAULT, BUT NOT WILFUL, ENTITLEMENT TO RENTS AND PROFITS, AND NOT INTEREST— PURCHASER ENTITLED TO REMEDY OF SPECIFIC PERFORMANCE-DEDUCTION OF COSTS FROM BALANCE PURCHASE PRICE AND INTEREST

PROCEDURE—WHETHER LATE FILING OF WITNESS STATEMENT SHOULD STAND—WHETHER PARTY'S WITNESS STATEMENT SHOULD BE ADMITTED AS HEARSAY EVIDENCE

IN OPEN COURT

Mangatal J (Delivered by Sykes J) :

1 This claim involves an Agreement for Sale dated March 9, 2007, entered into between the Claimants as Purchasers, and the Defendants as Vendors. The 1 ^st Defendant and his wife Ena Donaldson, now deceased, agreed to sell and the Claimants agreed to buy a parcel of land part of Congreve Park Pen, called Braeton New Town in the Parish of Saint Catherine. The lot is numbered 491 on the plan of part of Trenham Park and is the land comprised in the Certificate of Title registered at Volume 1129 Folio 533 of the Register Book of Titles ‘the property’. The purchase price was Two Million Six Hundred Thousand Dollars ($2,600,000.00).

2 Express terms of the Agreement for Sale required that the purchase price would be payable in three portions, i.e. Two hundred and Sixty Thousand Dollars ($260,000.00) a further payment of One Hundred and Thirty Thousand Dollars ($130,000.00), all payable to the Defendants' Attorneys-at-law E. Wright Goffe and Company, and the balance of Two Million Two Hundred and Ten Thousand Dollars ($2,210,000.00), payable on completion of the Contract.

The background to the proceedings

3 As required by the Agreement, the Claimants paid the required deposits, amounting to a total of $390,000.00 and applied for a mortgage loan for the balance of the purchase price ($2,210,000.00) from the National Housing Trust ‘the NHT’. Completion was set to take place within 120 days of signing and the time was stated to be of the essence of the Agreement in respect of all payments due from the Claimants. Possession was required to be vacant on completion. It was stated in Clause 8 of the Agreement that ‘ TIME SHALL BE OF THE ESSENCE of the contract as it relates to payment of the Purchase Price or any instalment thereof or other sums payable by the Purchaser hereunder and on the failure of the Purchaser on the due date to pay any sum payable hereunder interest shall accrue on the unpaid balance of Purchase Money at the rate of 15% per annum from the due date of payment until payment is received. …..’

4 By letter dated 5th June 2007, the Defendants' attorneys-at-law, at the request of the NHT, extended the Agreement for a period of 30 days to 31st August 2007. By letter dated 19th June 2007, the NHT issued a letter of undertaking to the Defendants' Attorneys-at-Law in the sum of $2,294,985.00 being the mortgage amount, plus $84,985.00, towards the Claimants' half costs of the transaction. This letter of undertaking was sent to the Defendants' Attorneys-at-law, in exchange for documents to secure completion, i.e. the Duplicate Certificate of Title, a registrable Instrument of Transfer (along with the registration fee), Discharge of Mortgage and Withdrawal of Caveat (if any), the original transfer tax certificate and an up to date certificate of payment of taxes. An executed transfer was duly delivered by the Claimants to the Defendants' attorneys-at-law on 30 August 2007. This would have completed all that was required of the Claimants under the Agreement.

5 However, according to the Defendants' case, in or about the third week of May 2007, the Claimants moved onto and took possession of the property. The Claimants say that they were put in possession orally by Mr. Robert Gordon, the servant and/or agent of the Defendants, to secure the property. They further say that while they had not been living on the property, they had engaged in doing necessary repairs as the premises were uninhabitable. The Defendants, on the other hand, insist in their Statements of Case, that the Claimants entered the premises without their permission, authority or consent and that the Claimants illegally connected electricity and water supply and began to carry out construction work.

6 By letter dated 5 June 2007, the Defendants' attorneys-at-law wrote to the Claimants' then attorney-at-law, claiming that the Claimants had taken possession without permission, and demanding rent or interest on the unpaid balance of the purchase money payable under the Agreement. I note that in the Ancillary Particulars of Claim, paragraph 3, filed on behalf of the Defendants, it is pleaded that that the Claimants took possession of the property without permission, ‘sometime during October 2007’.

7 The Claimants' case is that as time passed they were then waiting on the Defendants to complete the Agreement. The Defendants, on the other hand, maintained that they would not be going any further with the Agreement until the matter of interest or rent was settled. The Defendants on 7 February 2008 served a notice on the Claimants making time of the essence of the Agreement and demanding completion within 14 days. By a subsequent letter dated 28 February 2008, the Claimants not having completed in accordance with the notice, the Defendants' attorneys-at-law wrote to the Claimants' attorneys-at-law cancelling the contract. In cancelling, the Defendants maintained ‘that at all material times they were ready, willing and able to complete the said contract’. They claim that they would have completed the Agreement if the Claimants had remedied the breach of the Agreement for Sale represented by the taking of possession without permission and without settling on compensation.

8 However it also appears that the Defendants' Certificate of Title to the property had been lost sometime in 2007. The Defendants aver that instructions had had to be given by them to the Registrar of Titles to prepare and issue a new title directly in the names of the Claimants. The new title was not issued until 14 April 2008 and the Claimants claim that that is an indication that the Defendants were not in a position to complete the agreement during the period specified in the notice to complete issued on behalf of the Defendants.

THE CLAIMS

9 The Claimants seek specific performance of the Agreement for Sale, damages for breach of contract, and interest. The Claimants indicate that they are ready, willing and able to complete, as financing still stands available upon the Defendants duly performing their end of the bargain. The Defendants on the other hand, claim to have cancelled the Agreement on the basis of the Claimants' breach of contract. In an Ancillary Claim, they counterclaim damages for breach of contract and trespass.

THE EVIDENCE-Claimants' Case

10 The 1 ^st Claimant Sharon Bennett gave evidence. It was her evidence in examination-in-chief that Mr. Robert Gordon was the person who had initially shown her the premises and that she was in constant contact with him throughout the transaction. She states that she received a phone call from Mr. Gordon in or about June 2007, indicating that he had heard that she had evicted the tenants who resided at the property and had taken possession of the property. Mrs. Bennett states that she told him that she did not know what he was talking about and indicated that this was not true. She also states that in October 2007, she informed Mr. Gordon that the matter was taking too long. She reminded him that the place was in a state of disrepair and that she was eager to start work on the property. Mrs. Bennett states that Mr. Gordon, in his capacity of servant and/or agent of the Defendants then gave his express permission for the Claimants to enter the premises and commence necessary construction and general repairs in advance of the completion of the sale. On the faith of those representations, she gave her mason/contractor permission to carry out repairs. As regards the Defendants' allegation of her having taken possession, she states that this was erroneous because she has never resided, slept or occupied the premises during the period alleged by the Defendants, or at all, save for instructing her mason/contractor and electrician to enter the premises to effect repairs. She maintains that possession at all material times remained with the Defendants. In cross-examination, Mrs. Bennett stated that although she knew that the Agreement stated the completion date as the 31 ^st August 2007, she only returned the Transfer in late August even though it was received in June. This was because her daughter, the Second Claimant, Charlene Thomas ‘Ms. Thomas’ had to sign. Ms. Thomas was residing in the United States and had to get the document notarized and to obtain the county clerk's certificate regarding the notary public's commission, as required by law. Mrs. Bennett states that this took some time. In response to Mr. Goffe, Attorney-at-Law for the Defendants' question whether, if she had received a copy of the letter dated June 5, 2007 sent by Mrs. Wright-Goffe to her then Attorney-at-Law Mr. Adamaraja, she would have responded...