Design Properties (Montserrat) Ltd Defendant/Appellant v Attorney General of Montserrat Plaintiff/Respondent Attorney General, Montserrat for the Government of Montserrat Plaintiff/Appellant v Design Properties (Montserrat) Ltd Defendant /Respondent [ECSC]

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: DAVIS, C.J.,CHIEF JUSTICE
• Judgment Date: 11 October 1978
• Judgment citation (vLex): [1978] ECSC J1011-1
• Docket Number: CIVIL APPEAL NO. 1 OF 1978
• Date: 11 October 1978

Between:

Design Properties (Montserrat) Ltd.

Defendant/Appellant

and

The Attorney General of Montserrat

Plaintiff/Respondent

Between:

The Attorney General, Montserrat for the Government of Montserrat

Plaintiff/Appellant

and

Design Properties (Montserrat) Ltd.

Defendant /Respondent

[1978] ECSC J1011-1

Before:

The Hon. Sir Maurice Davis, Q.C.—Chief Justice

The Honourable Mr. Justice Peterkin

The Honourable Mr. Justice Berridge (Acting)

CIVIL APPEAL NO. 1 OF 1978

CIVIL APPEAL NO. 2 OF 1978

IN THE COURT OF APPEAL

Appearances:

C. Phillips for Appellant Company

K. Allen with him.

Attorney-General for Respondent

D. Brandt with him.

DAVIS, C.J.

1 These two appeals were heard together by consent, The first appeal in point of time, No. 1 of 1978, is against that part of the decision of Hewlett, J, dated 16th December, 1977, which gives judgment for the Appellant Company in the sum of $12,548.50, and the only ground of appeal is that a Court was not competent to give such a judgment.

2 The second appeal, No. 2 of 1978, is against that part of the judgment which (a) dismissed the Appellant's claim for specific performance, (b) dismissed the Appellant's claim for a declaration of forfeiture, and (c) entered judgment for the Company, Design Properties (Montserrat) Limited, in the sum of $12,548.50. The grounds of appeal are stated at pages one to four of the record.

3 The two appeals arose from a case brought by the Government of Montserrat in the name of the Attorney-General claiming specific performance of a contract of sale against Design Properties (Montserrat) Limited in respect of a parcel of land at Gingoes, Montserrat, containing 50,194 sq. ft., 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. The parcel in question was originally vested in William Hopwood of Montserrat and Eric Smith of Antigua whose intention it was to utilise the site for an hotel. In 1969 Smith joined a firm of architects in Antigua known as oeans and Fraser and threw in this parcel of land by arrangement with Hopwood as his contribution towards the assets and good-will of the partnership which then became known as Deans, Fraser and Smith. The partners subsequently formed themselves into a company called Design Properties Limited for the purpose of holding and developing this land. The company was registered in Antigua where they resided. The company then instructed Mr. John Kelsick, a solicitor of Montserrat, 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 advise"

4 Mr Kelsick replied to the company agreeing to effect transfer of title and undertaking to Proceed with the licence application.

5 In addition he inquired of them the reasonable market value of the property for purposes of stamp duty to which the company replied,

"The Gingoes property is being transferred to Design Properties at a face value of $7,000 ECC, 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."

6 Up to September, 1969. no licence was obtained, and the company instructed Mr. Kelsick by letter of 21st Day, 1970, to incorporate and register the company in Montserrat as Design Properties (Montserrat) Limited They also instructed him that after incorporation and registration of the new company he should arrange for completion of transfer of title of the land at Gingoes to the new company. The new company was then duly incorporated as Design Properties (Montserrat) Limited. It is hereinafter referred to as the company. A transfer deed in favour of the company was drawn and executed by the vendors on 5/12/70, No registration of the deed had, however been effected. Up to 18/1/72 the necessary license to hold land in Montserrat had not yet been obtained, and by letter of that date the company advised Mr. Kelsick inter alia as follows:—

"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 ECC, on which 5% commission would be available on completion of the transaction."

7 There was apparently no further communication of any significance between the company and Mr. Kelsick until sometime in 1974 when Deans, while in Montserrat on other business, had occasion to visit his home, Mr. Kelsick's evidence of their conversation runs.

"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 obtainable."

8 Deans evidence of this meeting is almost identical except that he added that he thought that he had told him that the price could not be less than $7,000 because it was the original book value, He went on to say, however,

"I did not intend anything by this conversation. I had no authority from the company to tell Kelsick to sell the land."

9 He had earlier in his evidence said,

"In ray opinion I would think a valuation would be between $21,000 and $24,000. This is a conservative estimate,"

10 It is this conversation with Deans upon which Mr. Kelsick relies as his authority to sell at $7,000.

11 On 18/1/76, after a lapse of nearly two years, Mr. Kelsick wrote to Deans advising him that he had sold the...