W G Northover & Associates Ltd v Astoria Development (Jamaica) Ltd
| Jurisdiction | Jamaica |
| Judge | Lindo, J |
| Judgment Date | 28 October 2020 |
| Court | Supreme Court (Jamaica) |
| Date | 28 October 2020 |
| Docket Number | CLAIM NO. 2018HCCV04901 |
[2020] JMSC Civ 184
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
CLAIM NO. 2018HCCV04901
and
(Executor of estate Winston Northover)
Mr Glenroy Mellish for the Claimants
Mr Keith Brooks for the Defendant
Sale of land — No formal written agreement — Whether contract concluded — Purchaser serving notice making time of the essence — Specific Performance — Claim for Adverse Possession
The First Claimant, W. G. Northover & Associates Limited (WGN Ltd.) is a limited liability company incorporated under the laws of Jamaica and a building contractor registered with the National Contracts Commission. Winston G. Northover, (WGN) now deceased, was the majority shareholder and Chief Executive Officer. Mr Eric Northover is the current Managing Director. The Second Claimant, Benkley Northover, is suing in his capacity as the executor of the estate of Winston G. Northover, deceased.
The Defendant, Astoria Development (Jamaica) Limited, (Astoria) is also a limited liability company and it has offices at 19 Red Hills Road, in the parish of Saint Andrew. Mr Leslie Mae, a Commissioned Land Surveyor is the Managing Director.
The genesis of the dispute between the parties was discussions between WGN Ltd. and Astoria in relation to the sale of Lots 9 and 10 Stanmore Heights, and the construction of roadways and for water supply. This was reduced in writing in Astoria's letter of January 22, 1998, to WGN Ltd., to the attention of WGN, which was signed by Leslie Mae on behalf of Astoria and Winston Northover on behalf of WGN Ltd. The letter states, among other things, that payment of the purchase price for the lots was to be made by WGN Ltd., by way of set off against certificates for payment for work completed. These were to be approved by B.G. W. Cawston and Partners or such other Quantity Surveyors as agreed by the parties. Possession of Lot 10 was to be given on the signing of sale agreements and commencement of road works and possession of Lot 9 upon the completion of roadways and water supply as certified by the Quantity Surveyor.
By a letter dated March 22, 2000, an amendment of the original agreement which was requested by WGN Ltd. was noted by Astoria, so that Lot 9 was to be given on the commencement of works and Lot 10 to be given on the completion of the works. In a further letter dated January 15, 2001, (noted to be from Leslie Mae & Associates) Astoria's managing director indicated, among other things, that the purchase price of the lots is $3,200,000.00 and a balance of $224,218.83 was outstanding. The letter commences as follows: “Further to our meeting of January 11, I now set out the final accounts. Kindly peruse the figures and submit any related claim you may have that is not accounted for…”
No formal written agreements for the sale or the transfer of the lots appear to have been prepared and or executed by the parties. The two lots were registered at Volume 1339 Folio 281 and Volume 1339 Folio 282, respectively, of the Register Book of Titles, to Astoria on February 22, 2002. Lot 9 was transferred to WGN on January 27, 2003 but there has been no transfer of Lot 10, although WGN Ltd was put in possession of that lot.
Mr Winston G Northover died on April 28, 2012 and on May 16, 2013, a grant of probate in his estate was made to Benkley William Northover.
By letter dated September 4, 2013, attorneys-at-law expressed the desire of the Claimants to complete the transaction relating to the sale and transfer of Lot 10. Eric Northover then had discussions with Mr Mae about the completion of the sale and by letter dated October 17, 2013, from Astoria, (in which Eric Northover is referred to as Richard) and which is stated as “the final accounts” the item titled “Add agreed adjustment (50%) for Owner's input”, which was contained in the letter of January 15, 2001, was stated. It showed an amount of $342,500.00 for which WGN had been credited in the letter dated January 15, 2001, now listed as being due, and “the balance outstanding as at January 15, 2001” as “$909,218.83”
On May 28, 2014, the Claimants' then attorneys wrote to Astoria's attorney with reference to the said sale and transfer of Lot 10 and the statement of account. In response, Astoria's attorney, on August 29, 2014, stated, among other things, that, “… the said statement cannot, therefore be re-addressed to the Executors of the estate of WG Northover as Astoria … had no dealings with the estate of WG Northover, and cannot therefore, properly look to that estate for payment, or other compensation relating to this matter…”
In June 2016, Eric Northover, as beneficiary of the estate of WGN, lodged Caveat No 2009129 against the certificate of title for Lot 10, and on July 25, 2016, the Claimants' attorneys wrote to Astoria's attorneys expressing that they were anxious to complete the transaction and querying what the sum of $342,500.00 was to compensate for.
There appears to be no further written correspondence between the parties until a letter dated March 21, 2018, from the Claimants' attorneys, was sent to Astoria, with a Notice making time of the essence and indicating that the Claimants were ready, willing and able to complete the agreement, including ‘payment of the outstanding balance of $224,218.83’. There was no response from Astoria in relation to the notice and the Claimants have remained in possession and occupation of Lot 10.
By Fixed Date Claim Form (FDCF) filed on December 12, 2018, WGN Ltd., and Benkley Northover, the executor of the estate of WGN, deceased, are seeking the following reliefs:
“ An order for (a) specific performance of the contract for sale of Lot 10 being all that parcel of land shown on the approved subdivision plan of Stanmore Heights prepared by Leslie Mae, Commissioned Land Surveyor, being registered at Volume 1339 Folio 282 of the Register Book of Titles (b) declaration that mortgage no. 2106206 was unlawfully lodged and an order to the Registrar of Titles to discharge same.
A declaration that the interest of WG Northover was held on trust for W.G. Northover & Associates Limited which paid the purchase price.
In the alternative, a declaration that the Claimants have for a period in excess of twelve years been in open and undisturbed possession of all that parcel of land described as Lot 10 on the approved subdivision plan of Stanmore Heights prepared by Leslie Mae, Commissioned Land Surveyor, Lot 10 being registered at Volume 1339 Folio 282 of the Register Book of Titles AND that the title to the said land has been extinguished pursuant to Section 30 of the Limitation of Actions Act.
An order directing the Registrar of Titles to cancel Certificate of Title registered at Volume 1339 Folio 282 of the Register Book of Titles and issue a new certificate of title in the name W.G. Northover & Associates Limited for all the lands now contained in the cancelled certificate.
Interest
Cost
Such other orders as the court deems fit and just”.
The FDCF is supported by the Affidavit of Eric Northover, to which is exhibited the grant of probate in the estate of WGN, copy of the title to lot 10 and copies of correspondence between WGN Ltd and Astoria, as well as the correspondence between attorneys at law representing the parties.
The evidence contained in the affidavit of Eric Northover, together with the attached exhibits, form part of the background to the claim and some of the matters that are not in dispute and will therefore not be restated.
Eric Northover's evidence also, is that the essential terms of an agreement for the purchase of Lots 9 and 10 from Astoria were set out in the letter dated January 22, 1998, and ‘an agreement to that effect was signed’. He adds that the Claimants have remained in possession of Lot 10 and that he had discussions with Mr Mae and despite efforts to have Astoria complete the contract for the sale of Lot 10, it has failed to do so.
On December 28, 1018, Astoria filed an Acknowledgement of Service and on January 28, 2019, filed an Affidavit in Response by Leslie Mae. Exhibited to the affidavit are copies of the letter dated January 22, 1998, the undated letter from WGN Ltd., letter dated March 22, 2000, letter dated September 4, 2013, letter dated July 25, 2016, copy of the Affidavit of Eric Northover which was lodged at the Office of Titles and copy of the Notice of Registration of Titles sent to Eric Northover.
Mr Mae denies that Astoria signed any agreement with WGN Ltd., and indicates that he signed the letter dated January 22, 1998, confirming discussions he had in relation to the purchase of the two lots. He says that possession of Lot 10 was to be given on the signing of the sale agreement, WGN Ltd requested an amendment so that WGN would get immediate possession of Lot 9 instead, and the amendment was done. He adds that WGN never took possession of Lot 10 “ except with the permission and authority of the Defendant company.”
He states that neither possession nor transfer of Lot 10 was made to WGN, ‘in his own right’, because the conditions agreed for such possession or transfer were never satisfied by WGN Ltd. as WGN Ltd. never completed the construction of the roadways and water supply. He indicates that acting on behalf of Astoria, he had to make other arrangements with a different crew of workers for the completion of the works.
Mr Mae also states that in the letter dated January 15, 2001, he had claimed, in error, $224,218.83 as a result of crediting to WGN Ltd. $342,500.00, which should have been credited to Astoria for its input of works and materials. He says on October 17, 2013, he sent a letter to WGN Ltd.,...
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