Walker (Kenneth) and Kenneth Walker Development Company Ltd v Harold Anderson and Inez Theresa Anderson

• Jurisdiction: Jamaica
• Judge: FORTE, P.: , HARRISON, J.A.: , LANGRIN, J.A.:
• Judgment Date: 23 October 2000
• Neutral Citation: JM 2000 CA 35
• Judgment citation (vLex): [2000] 10 JJC 2302
• Date: 23 October 2000
• Court: Court of Appeal (Jamaica)

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE FORTE, P THE HON. MR. JUSTICE HARRISON, J.A THE HON. MR. JUSTICE LANGRIN, J.A

SUPREME COURT CIVIL APPEAL NO. 42 OF 1999

BETWEEN

KENNETH WALKER

1ST APPELLANT

AND

KENNETH WALKER DEVELOPMENT CO. LTD.

2ND APPELLANT

AND

HAROLD ANDERSON

1ST RESPONDENT

AND

INEZ THERESA ANDERSON

2ND RESPONDENT

Garth Lvttle for the appellants

Rudolph Francis and Norman Harrison for the respondents

CONVEYANCING - Breach of contract - Whether entitlement to refund of deposit - Whether non-performance amounted to valid discharging of contract

FORTE, P.:

1 Having read in draft of the judgment of Harrison, J.A., I agree entirely and have nothing further to add.

HARRISON, J.A.:

2 This is an appeal from the judgment of Miss Gloria Smith, J., on February 12, 1999, that the appellants pay to the respondents for breach of contract the sum of $1,836,938 with interest at 25% from January 8, 1996 to February 12, 1999 and costs to be agreed or taxed.

3 The relevant facts are that Mr. and Mrs. Harold Anderson, the respondents, residents of the United Kingdom, came to Jamaica in May 1994 in order to buy a house, intending to return to Jamaica in retirement. The respondent Harold Anderson was taken to a housing development named Abyssinia Court, Bull Bay, in the parish of St. Andrew, where he saw several houses under various stages of construction. Both responderts there met the first appellant, Kenneth Walker, the "owner of the property". The respondents subsequently selected a house, a part of a duplex, intending to purchase it. This house was partially constructed. It consisted of concrete with two floors, to comprise, when completed, three bedrooms and three bathrooms. The ground floor was already tiled, and consisted of a kitchenette, a sitting room, one bedroom and a bathroom. The window frames to the front facing the sea, to the back and to the side towards the garage were all constructed, but had no glass yet installed. The door-frames were complete, without doors. The upper floor was reached by way of a staircase; no rooms were then in existence, but were merely marked out on the floor - made of plywood board. Marked out also were two bedrooms and two bathrooms and walk-in closets. Asked about the said plywood flooring, appellant Walker stated that he would take it up and "put pine flooring as it would match the ceiling." The ceiling was of varnished pine with open rafters. The joists, the foundation on which the flooring boards were laid, were too wide apart, being at intervals of 30 inches. On being so advised, the appellant Walker promised to pull them up and adjust them. A canopy, being the roof of the building over the verandah upstairs, was held up by a wooden beam four inches by four inches, from the said roof to a railing resting on a concrete column from the ground floor. The first respondent Anderson, pointed out that that "little thing" could not hold up the canopy; the first appellant agreed to "fix it." Asked the price of the house when completed, the said appellant stated "three million Jamaican dollars." The following day, either October 12 or 13, the first appellant took the respondents from their home to the office of his attorney-at-law, Mr. Garth Lyttle. The said appellant, in the presence of the attorney-at-law, told the first respondent that he should give him $1,800,000, then a further $500,000 by the end of December 1994, when the house should be finished and he the appellant would give the first respondent "a free vendor's loan for $500,000." The first respondent was instructed by Garth Lyttle to make the cheque for $1,800,000 payable to "Kenneth Walker Development Company", the second appellant, and he Lyttle would obtain a copy of the title as "you want to see what you are buying." The ollowing day, either October 14 or 15, the appellant took the first respondent to Victoria Mutual Building Society, Half Way Tree Road, where he obtained a banker's draft for the said $1.8M. The respondent was then taken to the office of the said attorney-at-law. The appellant gave the cheque to Mr. Lyttle who photocopied it, wrote on the photocopy a receipt for it which document he gave to the respondent. Mr. Lyttle, prepared the agreement for sale of the said premises, and it was signed by the respondents and the appellant. The agreement, exhibit 3, is dated October 14, 1994. The first respondent paid on October 15, 1994, $4,000 to Mr. Lyttle his portion of the cost of preparing the agreement. Between October 15, 1994, and November 9, 1994, the respondent made frequent requests for a copy of the title as promised by Mr. Lyttle "...everyday except Saturdays and Sundays...", but did not receive it. No work was done on the house during this latter period, except that painting was commenced to the ceiling of the ground floor. The first respondent stopped the painter and complained to the appellant that this was the area of plywood flooring to be replaced. The appellant stated that he had omitted to tell the painter that those boards were to be replaced. During the last week in October 1994 when the respondent visited the premises some of the plywood board flooring, "the ballast boards", had been removed. The appellant then told the respondent that he was going to Miami, USA, to buy building materials. One week later, the appellant misleadingly told the respondent that "the lumber is at the wharf to be cleared", and a few days later that "the lumber...is still in Miami..."

4 Despairingly, the respondent complained to Mr. Lyttle who reassured him that "everything is above board", and that he "would never do anything to damage his professional career." On November 9, 1994, the first respondent left Jamaica and returned to England. Before leaving on that day, Mr. Lyttle told him he would get the copy title in England. The appellant told the first respondent that he should pay the amount of the money of $500,000 into an account in a bank in Miami in United States currency and he gave him a blank cheque leaf with the account number. The appellant was thereby introducing a new term of the contract that was not reflected in the written agreement.

5 On either November 12 or 13, 1994, the first respondent telephoned the appellant from England enquiring whether or not he could purchase instead one of the cheaper houses for $1,500,000 because of the fact that a son of his had spent from his current account his and his wife's pension monies. The appellant replied in the negative, for the reason that he had "taken up the flooring." The respondent accepted that. On January 30, 1995, the respondent transferred the sum of £11,000 ($500,000 Jamaican) from his account at North Westminister Bank, Luton, England, to his account at Victoria Mutual Building Society, Half Way Tree Road, to cover the further payment to the appellant.

6 The appellant contacted the first respondent on about January 30, 1995. Consequently, the respondent came to Jamaica on about February 10, 1995, and visited the said premises on the following morning. He observed that:

• (1) Both floors of the house were "flooded with water"

• (2) The joists of the upper flooring were still thirty inches apart, unadjusted.

• (3) The joints in the partition wall of the main bathroom on the upper floor were separated, in that one could see. into the said bathroom from outside.

• (4) Watermarks were on the walls downstairs, indicating dampness from the floor coming up on the walls, inside and outside.

• (5) The garage roof was on, but there was no flashing nor gutter where the roof adjoins the wall of the house, therefore the water was not led off from the roof but ran down onto the wall creating damage and watermarks.

• (6) The kitchenette downstairs had no...