Vacciana v Oxford Prudential Holdings
| Jurisdiction | Jamaica |
| Judge | Orr, J. |
| Judgment Date | 21 March 1997 |
| Court | Supreme Court (Jamaica) |
| Docket Number | C.L. V001 of 1990 |
| Date | 21 March 1997 |
Supreme Court
Orr, J.
C.L. V001 of 1990
Patrick Bailey for the plaintiff.
Norman Davis for the defendant.
Contract - Specific performance — Written agreement was entered into by the defendant as owner and vendor and the plaintiff as purchaser for the sale of land — Whether the contract was lacking in precision — Whether the plaintiff was in default when the defendant served notice making time of the essence — Whether the defendant in its notice to complete gave the plaintiff a reasonable time within which to do so — Whether the defendant was ready, willing and able to complete — Whether the defendant properly and effectively cancelled the agreement by letter to the plaintiff — Whether time was made the essence of the new contract — Whether the plaintiff was guilty of inordinate and unreasonable delay — Whether the deposit should be forfeited — Court ordered that the defendant pay to the plaintiff the sum of $55,000.00 with interest at a rate per annum to be agreed by the parties failing which either party may apply to the court for its determination — Payment of the sum was suspended until an enquiry as to any damage suffered by the defendant was completed.
Orr, J. Throughout 1994, I struggled against exhaustion. A brief period of leave did not help much; and so my work suffered considerably. Then in March 1995, shortly before I wad due to go on an extended period of leave I suddenly fell seriously ill. After two periods of hospitalization, I began the slow road to recovery.
I resumed duties on a limited basis in mid September 14905, but even this proved to be premature and so I again went on leave in November 1995 until March 1996. I am not yet completely recovered: hence the delay in delivering this judgment.
I hope that the parties and all affected by these proceedings have not suffered too much inconvenience because of the delay.
This is an action for specific performance of a written agreement dated 4th April 1989, and entered into by the defendant (as owner and vendor) and the plaintiff, as purchaser, for the sale of land situated at 14 Crieffe Road, in the parish of St. Andrew.
There is much common ground between the parties as the bulk of the evidence is contained in the agreed bundle of documents, in particular letters between the attorneys of the parties.
The outcome of this case therefore is determined largely by the effect given by the court to these papers.
Throughout the events which gave rise to this case the plaintiff was represented by Mr. Patrick Bailey attorney-at-law, and the defendant by Mr. Dereck Jones, attorney-at-law. The firm of attorneys having carriage of sale were Messrs. Myers Fletcher & Gordon Manton & Hart of which Mr. Jones was at all material times a partner.
The following facts were not in dispute:
The plaintiff was a tenant (in possession) of the defendant under a lease the effective date of which was 1st January, 1988, and which provided that the plaintiff should be a monthly tenant after the expiration of a year. The rent was $750.00 per month.
The parties entered into the sales agreement which provided for a purchase price of $315,000.00 payable by a deposit of $55,000.00 on signing, $100,000.00 within three months of evaluation and balance on completion which was fixed as on or before 30th June, 1989. A special condition of the agreement was that the Plaintiff obtain and deliver a written commitment from Victoria Mutual Building Society or such other lending institution as may be approved by the defendant for a loan of $160,000.00 on the security of the said property by 31st May 1989, failing which either party could rescind. At the outset time was not of the essence of the contract.
By letter dated 14th March, 1989 Mr. Bailey forwarded a cheque for the amount of the deposit of $55,000.00 to Mr. Jones. The latter in acknowledging receipt in a letter dated 4th April, 1989. wrote:
“We think it only fair to let you know that our instructions are that no extensions of time are going to be granted and therefore it is important that your client does whatever is necessary to ensure that the terms of this contract are complied with.”
With that letter was transmitted a copy of the agreement duly executed y the defendant vendor.
Mr. Jones by letter dated 10th April, 1989, sent a photocopy of the title to Mr. Bailey. Mr. Jones wrote Mr. Bailey again on 25th April. 1989 enquiring what progress had been made in obtaining a commitment for the financing of the loan. He pointed out that “Our concern is that there be no delay in relation to the completion of this matter…..”
Mr. Bailey in turn wrote the plaintiff the following day enclosing a copy of that letter and expressed himself thus:
“Enclosed is a copy of a letter from Messrs. Myers Fletcher & Gordon Manton & Hart which taken with their earlier letter of 4th April, 1989 displays an unremitting agenda of urgency herein. Please let us have the letter of commitment within the time stipulated in, the agreement.”
Mr. Jones wrote again on 15th May asking about the financial commitment. On 29th May 1989. Mr. Bailey wrote Mr. Jones stating that the plaintiff's efforts to obtain financing had been hampered by the untimely death of Mr. Warren, a director and shareholder of the defendant company, who had been assisting in obtaining financing. Mr. 8axley asked for an extension of 30 days within which to supply the letter of commitment.
By a letter dated 12th June 1989. Mr. Jones wrote to Mr. Bailey saying that he had received instructions from the defendant granting the extension of 30 days as requested and added that “This is on the strict understanding that all money due in respect of this sale, including unpaid rental will have to be paid no later than the 31st July. Further, if the letter of commitment is not delivered by the 30th June, our instructions are to rescind the contract.”
In a letter dated 3rd July 1989, Mr. Bailey wrote to Mr. Jones intimating that formal approval of a mortgage loan from Victoria Mutual Building Society was anticipated and that he expected to be in a position to forward a letter of commitment shortly. Mr. Bailey also stated that it had been necessary to obtain the last tax receipt for the premises and that the plaintiff had informed him that it was furnished to him on 30th June, 1989.
By Registered Mail dated 12th July 1989. Mr. Jones sent to Mr. Bailey a notice to complete making time the essence of the contract and requiring completion within 28 days.
In a letter dated 1st August 1989, Mr. Bailey enclosed a copy of a letter from Victoria Mutual Building Society approving a loan of $157,000.00 from the plaintiff. Mr. Bailey also asked for a statement of Account to close.
On 4th August 1989, Mr. Jones wrote to Mr. Bailey enclosing a statement to close which showed a balance of $114.057.07 due, after the expected proceeds of the mortgage ($157.000.00) was credited to the account due from the plaintiff.
Mr. Jones also wrote,:
“…..$100.000.00 should have been paid by the 4th of July and this; has to be paid immediately failing which the Notice of the 6th July remains in force. The balance should either be paid now or secured by a undertaking from a financial institution.”
The next communication in this matter was a registered letter from Mr. Jones addressed to the plaintiff and dated 15th August. 1989 in which Mr. Jones purported to cancel the agreement and to forfeit the plaintiff's deposit.
In a letter dated 18th August, 1989, the National Commercial Bank wrote to Mr. Jones thereby giving an undertaking to pay $100,000.00. The letter stated that the undertaking would expire on 30th August, 1989, but was subject to extension with prior notice [It must be noted that under the agreement for sale $100,000.00 was payable by the plaintiff within-three months of evaluation]. The letter also requested the duplicate certificate of title in exchange for the undertaking and asked that a tax certificate signifying that tax had been paid up to date should be sent with the title.
By letter dated 21st August, 1989, Mr. Jones replied to the National Commercial Bank. He wrote as follows:
“We have already given an undertaking to the Victoria Mutual Building Society that we will send them the title to enable them to register a mortgage in the sum of One Hundred and Fifty-Seven Thousand Dollars ($157,000.00. Accordingly we are not able to give you any undertaking to send you the title on registration of the Transfer.”
“In addition, it is unlikely that the registration of the Transfer would be complete before the end of September.”
In a letter of the same date to Mr. Bailey. Mr. Jones enclosed a copy of the letter from the National Commercial Bank dated 18th August 1989, and his reply of the 21st August 1989. The letter to Mr. Bailey was marked “WITHOUT PREJUDICE” and was couched in the following terms:
“The vendor is not going to be prepared to continue any dialogue with your client unless:
1. All outstanding rent is paid up.
2. Satisfactory arrangements are made for the payment of the balance of the purchase money.
3. Satisfactory arrangements are made to compensate them for the loss they are suffering …..
You need to speak with your client and get back in touch with me as quickly as possible.”
In another letter dated 6th September 1989 and marked “WITHOUT PREJUDICE” Mr. Jones wrote to Mr. Bailey thus:
“Your client is being given one final opportunity provided:
a. Rental due to date plus interest at twenty-five percent (25%) for the period for which each payment has been outstanding is paid
and
b. The balance of the purchase price plus interest at twenty-five percent (25%> from when it became due to when it is paid, must either be paid or secured by an undertaking...
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