D.M. Mahogany Carousel Ltd v Hopwood et Al

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Redhead, J.
• Judgment Date: 07 December 1990
• Neutral Citation: MS 1990 HC 3
• Docket Number: 68 of 1988
• Date: 07 December 1990

High Court

Redhead, J.

68 of 1988

D.M. Mahogany Carousel Limited

and

Hopwood et al

Real property - Rectification of Land Register — Land purchased in the name of plaintiff to build hotel — Financing unavailable — Project abandoned for a while — Land to be sold — Plaintiffs then discovered that land already sold and sought an order rectifying the Land Register, damages — Land conveyed to second named plaintiff and therefore they could bring an action — Companies Act s. 203 — Company's name struck off register — Land sold to 1st named defendant with knowledge of 2nd named defendant — Rectification of Land Register ordered.

Redhead, J.

1 The first named plaintiff, Delyss and her husband Anthony Mahony are English. In 1968 they came to Montserrat in search of lands with a view to setting up a small hotel. The plaintiff and her husband were introduced to the Governor. They were shown several pieces of land. They met the first named defendant, Roy Hopwood, who is also an Englishman. Hopwood represented to the plaintiff and her husband that he owned lands at Germans which is on the South-western part of the island.

2 Hopwood took the first named plaintiff and her husband to Germans Bay and showed them the land. To the plaintiff and her husband, this was an ideal lot for their project. They agreed to buy the land from Hopwood. The Mahonys set up a company, Carousel Ltd., the plaintiff and her husband being the only shareholders in the company. The land was purchased for the sum of (4,500 in the name of the company. The area of the land is described in the deed in favour of the company as 142,358 sq. ft. The company was incorporated by Mr. Kenneth Alien who acted as solicitor for the Mahonys. The first named plaintiff and her husband left Montserrat and returned to England. They again returned to Montserrat in 1971. The Mahonys obtained planning permission from the Montserrat Authorities for their hotel project. The plans drawn by one John Day. Hopwood suggested that Brian Construction should undertake the work for the construction of the hotel. The site was cleared.

3 The Mahonys returned to England and began looking after finances to finance the building of the hotel. Unfortunately for the Mahonys, just about that time the pound sterling was devalued and the United Kingdom Government put into place exchange control restrictions, in that the plaintiff and her husband were not permitted to take out more than (25,000 from the United Kingdom. As a result they were forced to postpone the building of the hotel.

4 Nothing further was done by the Mahonys towards the building of the hotel. However, they continued to pay land tax up to 1988. Meanwhile, the company Carousel, which was registered in Montserrat was struck off in 1979 because of non-payment of statutory fees and costs. They had done nothing further for the maintenance of the company.

5 The first named plaintiff however, said in evidence that they wrote many letters to Mr. Allen but got no reply. A copy of one of those letters was submitted in evidence. The address on the copy of the letter was incomplete. It simply stated (Kenneth Allen, Chambers, Plymouth.” If the letters were so addressed it is hardly surprising that they got no reply because a letter so addressed in England in my view cannot be delivered in Montserrat.

6 What is amazing in my view, is that the Mahonys were writing to Mr. Allen on important matters and not having had a reply, one would have expected that they would have telephoned him the first named plaintiff having admitted that she had Mr. Allen's telephone number in order to find out what was the problem. I conclude therefore that the Mahonys could not have thought very seriously about keeping Carousel Ltd. alive.

7 In 1982 the Malonys attention was drawn to a clipping of an advertisement in the “Suffolk Mercury, a local newspaper. The advertisement had apparently been placed in the newspaper the first named defendant. As a result of the advertisement the first named plaintiff rang and spoke to Hopwood in 1982. to Mrs. Mahony, in that telephone conversation, Hopwood asked her if they had done anything about the hotel in Montserrat because someone in Montserrat had written asking about selling the land for a builders yard. According to the first named plaintiff, Hopwood said that his mind was a blank as to what had happened in Montserrat and that he understood that the land was still registered in his name. Mr. Hopwood wrote a letter to Mr. Mahony. The letter is in the following terms:–

Dear Mr. Mahony

I was pleased to receive a call from Mrs. Mahony in respect to my advertisement in the Suffolk Mercury.

This was prompted by an enquiry I received from a prospective purchaser of the land at Germans Bay for use as a concrete block making yard along with building material storage.

I must admit that I am sure of the status of this land as I am informed that it is registered in my name and my mind is blank on much of the dealings which took place between us.

So much has happened during the past eleven years. If you have my transfer of title I would. be most grateful if you would send me a photocopy. This would obviously be honoured by me.

Sorry to learn that you have not been in the best of health and trust that you are now feeling better.

Your sincerely

W.R. Hopwood.”

8 On the 31st May, 1982, the Mahonys replied to Hopwood's letter which is as follows:–

Dear Mr. Hopwood

We are completely baffled by your letter. On the telephone you asked if we had plans for the hotel for if we would be willing to sell as someone had asked about it, and now you say you are unsure of the status of the land.

We have all the correspondence relating to the purchase including yours, in which you say that now the sale is completed we can get on with the plans for building.

The plans were drawn by John Day and submitted to the planning department and duly passed. The decision not to continue the project at that time was mainly brought about by the Bank of England imposing exchange control regulations, and the subsequent oil crisis confirmed the decision. We had hoped that a more opportune time would but unfortunately, a hotel is now out of the question. On showing my wife the land you indicated your original intention was to build four houses there, and we have for sometime been talking about the possibility of building a home there.

The purchase of the land and registration was dealt with by Mr. Kenneth Allen, whose correspondence we also have.

Yours sincerely,

A.V. Mahony”

9 There was no reply to that letter. The plaintiff said and her husband were not seriously concerned about the contents of Hopwood's letter because so far as they were concerned, they had the deed for the land and, they were paying the taxes.

10 By 1988 the first named plaintiff and her husband had abandoned all idea of building the hotel at Germans Bay. As a result they contracted an Estate Agent in Montserrat with a view to selling the land.

11 The Mahonys then discovered that the land was sold. A portion of the land was in fact sold by Hopwood to the second named defendant in or about the year 1982 for the sum of $20,000. Hopwood has retained the other portion.

12 The first named plaintiff wrote to Hopwood on 8th May, 1988 after she had learnt of the sale. It is to be assumed that Hopwood passed that letter on to his solicitor who wrote to the first named plaintiff on 12th May, 1988.

13 The plaintiffs commenced proceedings against the defendants in June, 1988. By their Writ the plaintiffs claim the following:–

• (i) Rectification of...