Attorney General v Design Properties (montserrat) Ltd

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Hewlett, J.
• Judgment Date: 16 December 1977
• Neutral Citation: MS 1977 HC 4
• Docket Number: No. 52 of 1976
• Date: 16 December 1977

Attorney General

and

Design Properties (montserrat) Limited

Hewlett, J.

No. 52 of 1976

West Indies Associated States Supreme Court. High Court

Contract - Performance

Contract - Sale of land

Held: There was no evidence of any of the above-mentioned things. Judgment given for the defendant company in the sum of $12,548.50, the value of the property or alternatively, the plaintiff was entitled to follow the property and recover it since it was in the physical possession of the defendant.

Held: There was no evidence of any of the above mentioned things. Judgment given for the defendant company in the sum of $12,548.50, the value of the property or alternatively the plaintiff was entitled to follow the property and recover it since it was in the physical possession of the defendant.

Facts: This was an action brought by Government of Montserrat in the name of Attorney General claiming specific performance of a contract sale with the defendant company in respect of a parcel of land. The company was formed for registering and developing land. The issue was whether there was some act of part performance as required at common law or “an agreement or some memorandum note” in writing signed by the company or some person lawfully authorised to do so by the company.

Facts: The action was brought by the Government of Montserrat in the name of the Attorney General claiming specific performance of a contract of sale with the defendant company in respect of a parcel of land. The company was formed for registering and developing land. The question was whether there was some act of part performance as required at common law or “an agreement or some memorandum note” in writing signed by the company or some person lawfully authorized to do so by the company.

Hewlett, J.

1 This case is brought by the government of Montserrat in the name of the Attorney General claiming the specific performance of a contract of sale in respect of a parcel of land at Gingoes in Montserrat containing 50,194 square feet and in the alternative for a declaration of forfeiture of the said land to the Crown for breach of the Land Holding Control Ordinance 1970.

2 The parcel in question was in August 1966 vested in William Hopwood of Montserrat and Brie Smith of Antigua and it was their declared intention at that time (known by Government) to utilise the site for a hotel. In 1969 the said Smith joined a firm of architects in Antigua known as Deans and Fraser and threw in the parcel of land by arrangement with Hopwood as his contribution towards the assets and goodwill of the partnership. The partnership then became known as Deans Fraser & Smith. But quite apart from the partnership business, the partners formed themselves into a company called Design Properties Ltd. for the purpose of holding and developing this land. This company was registered in Antigua where the three shareholders resided. The company then got in touch with one John Kelsick, a solicitor practising in Montserrat, and instructed him by letter dated 1/7/69 as follows:

“We would be happy if you would undertake the following business on behalf of Design Properties Limited, Antigua, of which Walter Deans is a Director.

We wish to transfer or sell title of a property at Gingoes, Montserrat at present held by Conveyance in the names of Eric G.T. Smith, Antigua and Wm. Roy Hopwood, Montserrat.

Agreement has been made with Mr. Hopwood to obtain his interest in the property as per the attached letter from Mr. Hopwood to Design Properties.

The conveyance is at present in the hands of Mr. Kenneth Allen, Solicitor, who was preparing application for certificate of Title, but this has not been done.

The property should be transferred or sold for ‘consideration received’ or for nominal sums since no exchange of money is being asked of any of the parties involved.

Should you be willing to undertake this business for us, please ascertain firstly if licence to hold this property will be probably granted to us.

We look forward to your early advice.”

3 Kelsick replied to the company by letter dated the 7/7/69 agreeing to act on its behalf in effecting transfer of title from Hopwood and Smith and promising to proceed with the licence application but he enquired the reasonable market value of the property for purposes of stamp duty. This information was then supplied by letter dated the 9/7/69 in the following terms:

“The Gingoes property is being transferred to Design Properties at a face value of $7,000 EC, based on the original purchase cost of $5,272 plus allowance for devaluation and a small annual appreciation. We would think this sum of $7,000 a fair value for stamp duty.”

4 By September, 1969, no licence having been yet obtained, the company no doubt with a view to ameliorating its chances of procuring the said licence, expressed the wish to become registered in Montserrat, but this idea soon gave way in December, 1969 to the further idea of being incorporated in Montserrat as Design Properties (Montserrat) Limited and instructions to carry out this assignment were given to Kelsick in the company's letter of the 21/5/70.

5 This letter also advised as follows:

“After incorporation and registration of the new company, will you please arrange for completion of transfer of title of the land at Gingoes to the new company.”

6 The defendants company was then duly incorporated and the transfer deed in its favour was drawn and executed by the vendors Hopwood and Smith on the 5/12/70, but the registration of the deed could not be effected as the licence to hold had not yet been approved.

7 It would appear, and I accept, that Kelsick continued to make enquires from the Ministry concerned about the licence application but as the months passed without a favourable reply it may well be that he despaired of ever getting the licence and may have accordingly advised his clients in telephone conversation that they should sell. But the company would not be so quickly thwarted in its plans, as its letter of the 18/1/72 to Kelsick shows:

“This is to note our phone conversation last week and advise you further upon it.

It is our understanding from you that: you have made a further application for a land holding licence for us and that we now await the outcome from Government: you hold for us both the original purchase deed of Smith/Hopwood and proper conveyance from them to Design Properties (Montserrat) Limited and that no further documentation is required: you will check on whether we should pay any land tax and act as necessary in our interest.

Further to our conversation we advise you that we are not anxious at this moment to make a quick sale of the property but would do so at a price of $21,000 EC, on which 5% commission would be available on completion of the transaction.

We have also decided that when we do get a licence we would like you to obtain a certificate of title for the property in our name.”

8 And the Company's undated letter, accepted as being of January, 1973, (that is, about a year later) indicates that they had just had a telephone conversation with Kelsick wherein they instructed him to renew his application for the licence. They also admitted having been advised that no interest in purchasing the property had been shown.

9 More than a year then passed and there was apparently no further communication between the company and Kelsick until sometime in 1974 when Deans, while in Montserrat on other business, had occasion to visit Kelsick at his home and the matter was then brought up. Kelsick sums up the conversation thus:

“We discussed the position with the land. I told him I was pretty certain that they would never get a licence and that they should sell. He agreed that I should sell at the best price...