Wakefield, Barbara v Winston Wakefield and another

• Jurisdiction: Jamaica
• Judge: Anderson, J.
• Judgment Date: 27 April 2002
• Judgment citation (vLex): [2002] 4 JJC 0902
• Court: Supreme Court (Jamaica)
• Docket Number: SUIT NO E 510 OF 2000
• Date: 27 April 2002

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

SUIT NO E 510 OF 2000

BETWEEN

BARBARA WAKEFIELD

1 ^st PLAINTIFF

AND

WINSTON WAKEFIELD

2 ^nd PLAINTIFF

AND

OLIVE DOSTEY

DEFENDANT

REAL PROPERTY - Caveat - Removal - Whether caveat obtained through material non-disclosure - Whether Registar of Titles ought to be directed to remove caveat

Anderson, J

1 This matter arises by way of an Originating Summons filed by the Plaintiffs herein on the 12 ^th December 2000. The summons seeks the following relief namely:-

• 1) The Registrar of Titles be directed to remove the caveat numbered 1128529 lodged by the defendant as the plaintiff (sic) has no legal or equitable interest in the property situated at Townhouse No 5, 1 Waterworks Road in the Parish of St. Andrew registered at Volume 1172 Folio 56 of the Register Book of Titles.

• 2) That an Order be made directing the Registrar of Titles to remove Caveat No 1128529 lodges against the said certificate of title registered at Volume 1172 Folio 56 of the Register Book of Titles lodged by the Defendant Olive Dostey.

• 3) That the caveat be removed in that the defendant Olive Dostey has been guilty of material non-disclosure.

• 4) That the costs of this application be the plaintiffs to be agreed or taxed.

• 5) Such fixrther or other relief as may be just;

• 6) That there be liberty to apply.

2 I shall recount as briefly as I can the circumstances leading up to this application by the plaintiffs herein. The genesis of the action is a contract entered into on the 11 ^th February 2000, between the plaintiffs, Winston Gordon Wakefield and Barbara Anita Wakefield of a New York address in the United States of America, electrical engineer and housewife respectively, on the one hand, as vendors, and the defendant, Olive Dostey of a Kingston 8 address in the Parish of St. Andrew, as purchaser, on the other. The contract was duly executed with the parties thereto having their respective signatures duly witnessed.

3 The contract provided for a purchase of property known as Townhouse No 5, 1 Waterworks Road in the Parish of St. Andrew, and registered at Volume 1172 Folio 56 of the Register Book of Titles, at a price of Seven Million Five Hundred Thousand Jamaica dollars (J$7,500,000.00). There was to be a deposit of seven hundred and fifty thousand dollars ($750,000.00), and a further payment of three hundred and seventy five thousand dollars ($375,000.00), with the balance to be paid on completion. "Completion" was scheduled to take place "within ninety (90) days of the date hereof and on payment of all monies payable by the purchaser hereunder in exchange for the duplicate certificate of Title duly endorsed in favor of the purchaser and her mortgagee's interest thereon". Possession was to be handed over "vacant on completion"

4 As with contracts of this nature, the agreement had a number of special conditions. In this case there were nine in all. Some of these conditions are of particular relevance in relation to the issues raised in this matter. In particular, I set out below verbatim, special conditions 4, 5, 6, 7, 8 and 9. I shall in term refer to these special conditions below as their relevance appears.

• "4. The sale is subject to the Purchaser obtaining a mortgage loan of not less than $5,000,000.00 on the security of the premises from the Victoria Mutual Building Society or any other reputable financial institution and delivering to the attorneys-at-law having carriage of sale a written commitment from that financial institution for such loan no later than Sixty (60) days from the date hereof. In the event of the purchaser failing to do so either party shall be entitled to rescind this agreement within fourteen (14) days thereof failing which this agreement shall remain absolute and binding on the parties hereto. In the event of this agreement being rescinded, all monies paid hereunder shall be refunded without interest and free from deductions save and accept that the purchaser hereby agrees to pay the attorneys-at-law having carriage of sale fee in the sum of ten thousand dollars ($10,000.00) for professional services rendered in respect of work incidental hereto and the purchaser hereby irrevocably authorizes the said attorneys-at-law having carriage of sale to deduct the amount of such fee from the deposit paid on the termination of the agreement.

• 5. Any notice or demand to be served or made on either part hereto shall be deemed to be sufficiently served or made as the case may be if sent by pre-paid registered post addressed to them at their address above stated and copied to their attorneys-at-law and shall be deemed to have been received fourteen (14) days after the date of posting in any post office in Jamaica. This method is not exclusive and shall be in addition to any other available procedure.

• 6. It is understood and agreed that if the Stamp Commissioner shall assess the transfer tax and stamp duty payable on this Agreement for Sale on a value which is greater than the agreed sale price of JA$7,500,000.00, the vendors shall have the option to rescind this Agreement for Sale by notice in writing to the Purchaser within seven (7) days of being notified of this assessment in which event all monies paid by the Purchaser, save and except monies paid under special condition 3 shall be refunded without interest and free from deductions, PROVIDED THAT if the Purchaser within seven (7) days of being so informed by the vendors shall pay to the vendor such sum by which Transfer Tax and Stamp Duty exceeds the amount payable on a consideration of JA$7,500,000.00 this agreement shall remain binding on the parties hereto.

• 7. In the event that the Purchaser shall fail to pay the balance of the purchase price within the time stipulated, which failure is not due to any default of the vendors, and the vendors shall agree to extend the time limited for completion and interest on the unpaid balance of purchase money shall accrue at the rate of 20% per annum for the period of any extension.

• 8. In the event that the purchaser shall fail to pay the balance of the purchase price within the time stipulated for completion the vendors shall be entitled to forfeit the deposit.

• 9. It is hereby agreed that the purchaser shall pay to the vendor the sum of US$25,000.00 as part of the balance of the purchase price. For the purposes of this Agreement the rate of exchange between the United States Dollar and the Jamaican Dollar shall be US$1.00 to JA$40.00.

5 It is common ground that the purchaser did in fact make the payment of the relevant deposit and further sum and then proceeded to seek mortgage financing in order to fulfill special condition 4 which required that the purchaser secure, within a sixty (60) day time frame, the relevant commitment to finance the mortgage. The special condition, as noted above, continued as follows:

In the event of the purchaser failing to do so either party shall be entitled to rescind this agreement within fourteen (14) days thereof failing which this agreement shall remain absolute and binding on the parties hereto . In the event of this agreement being rescinded, all monies paid hereunder shall be refunded without interest and free from deductions save and accept that the purchaser hereby agrees to pay the attorneys-at-law having carriage of sale fee in the sum of ten thousand dollars ($10,000.00) for professional services rendered in respect of work incidental hereto and the purchaser hereby irrevocably authorizes the said attorneys-at-law having carriage of sale to deduct the amount of such fee from the deposit paid on the termination of the agreement.

6 The effect of this part of special condition 4 is purportedly summed up in the affidavit of the purchaser/defendant Olive Dostey at paragraph 5 of her affidavit dated and filed in the Supreme Court the 5 ^th February 2001. That affidavit states in relevant paragraph that:-

"This condition provides for the procedure to be adopted upon rescission of the contract by the vendor/plaintiffs wherein if the purchaser fails to obtain the mortgage loan it states that all monies paid hereunder shall be refunded without interest and free from deductions save and accept the sum of ten thousand dollars for professional services to be paid to the vendor/plaintiff s attorneys-at-law".

7 While this does give some indication of the effect of paragraph 4, it is suggested that it is not a complete reading of that relevant special condition. It seems that a close reading of the condition gives a right to rescind to either party, and then, only within a set fourteen day period after the expiration of the sixty (60) days . Further, in the absence of rescission within that set fourteen (14) days, the contract remains in full force and effect in relation to all its other terms.

8 In the outturn, the purchaser had great difficulty in securing the commitment for mortgage financing to purchase the property. This difficulty was communicated to the attorneys-at-law for the vendors/plaintiffs. Accordingly, the attorneys-at-law representing the purchaser, on the 15 ^th June wrote to the plaintiffs attorneys requesting an extension of time within which to supply the letter of commitment in accordance in special condition 4 of the agreement for sale. This was apparently agreed to, although there is nothing on the Bundle with which I have been supplied to state whether such a concession was on terms or not. Subsequent correspondence is however, only explainable on the basis that the extension was agreed to by the vendors' attorneys.

9 In any event, as a consequence of the difficulty in obtaining mortgage financing herself the defendant/purchaser then sought the assistance of a couple, Mr. Patrick Shim and Mrs. Dawn Shim to become nominee purchasers under the terms of the agreement for sale, in order to complete the transaction. The attorneys-at-law for the vendors...