John E Ryan v Yvette Fenton-ryan v Providence Estate Ltd Warren Cassell

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judgment Date: 05 March 2012
• Judgment citation (vLex): [2012] ECSC J0305-1
• Docket Number: CLAIM NO. MNIHCV2009/0010
• Date: 05 March 2012

Between:

John E Ryan

V. Yvette Fenton-ryan

Claimants

and

Providence Estate Ltd

Warren Cassell

Defendant

[2012] ECSC J0305-1

CLAIM NO. MNIHCV2009/0010

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Appearances:

Mr. Jean Kelsick for the Claimants

Mr. Hogarth Sergeant for the First Defendant

The Second Defendant in person

JUDGMENT 1

Introduction

1 The First Claimant, ["Mr. Ryan"] and the Second Claimant, his wife ["Mrs. Ryan"] are real estate developers, who agreed to purchase four lots of land owned by the First Defendant ["PEL"] at Providence in Montserrat. The purchase was never completed but the Ryans paid a deposit and incurred costs for clearing and surveying the lots. All transactions relating to the purchase were between the Ryans and the Second Defendant ["Mr. Cassell"].

2 The Ryans instituted this claim alleging that they were entitled to rescind the purchase agreement on the basis that Mr. Cassell had falsely represented to them that there was

no difficulty with access to the land and where in fact there was no vehicular access other than by a right of way over a third party's land and no such right of way existed. In addition, when they met with Mr. Cassell and agreed the balance of the purchase price would be reduced by them bearing the cost of constructing a road, Mr. Cassell had concealed the fact that one of the lots had been sold to a third party. Their case is not only were they were entitled to rescind the agreement but that in a letter dated 23 ^rd May 2008, Mr. Cassell had repudiated the agreement. They claimed that they were therefore entitled to damages for breach of contract.

3 PEL has denied any liability in the matter alleging that the company had no knowledge of the Ryans and Mr. Cassell had never been a Director or its legal representative. Any such claims by Mr. Cassell to that effect were therefore fraudulent.

4 Mr. Cassell's defence is that at the material times he was acting as an agent, servant or representative of PEL. He has denied any misrepresentation on his part, claiming that he had told the Ryans that there were issues with access to the lots and they had agreed to pave the road in exchange for paying less. They were not entitled to their deposit because it was non-refundable and they had not paid the balance on the purchase price within the stipulated period. He denied concealing that one lot was sold to a third party claiming that the Ryans were aware that other persons were interested in purchasing the land. He had not repudiated the agreement and was not liable for any loss that the Ryans had suffered.

5 The negotiations between the Ryans and Mr. Cassell regarding the purchase of land at Providence began on 9 ^th September 2007, when Mr. Ryan contacted Mr. Cassell. Mr. Cassell confirmed that the land was owned by PEL and that he was duly authorized to sell them.

6 The next day the Ryans and Mr. Cassell met on site and the available lots were identified. The Ryans indicated that they were interested in purchasing Lots 35 and 36. At that stage, Mr. Ryan raised the issue of access to the lots and he recalled that Mr. Cassell had emphatically assured him that there was no problem with access, reminding him that he was " the lawyer here". Mr. Cassell's recollected in his witness statement that he had explained to the Ryans that while there was no access road shown on the government's map, there was an access road, which had been used for several years by others living in the area. When cross-examined by Mr. Kelsick, Mr. Cassell attributed this observation and the fact that the road might not have been a road to Mr. Ryan and when challenged by Mr. Kelsick he explained it by stating that he had not recorded the conversation. Mr. Ryan was clear in an answer to Mr. Cassell however that there was a trace solely on Lot13/5/25, which belonged to a third party, leading up Lot 35.

7 The Ryans agreed to purchase Lots 35 and 36, asked Mr. Cassell to prepare an agreement for sale and on 10 ^th September 2007 made a 10% down payment of $22,000.00, paid by cheque to Cassell & Lewis, on Mr. Cassell's instructions. The Ryans subsequently agreed to purchase Lots 37 and 38 and made a 10% deposit of $20,000.00 on 15 ^th September 2007 by cheque also payable to Cassell and Lewis and Mr. Cassell gave them a copy of the site plan showing the four lots.

8 After the cheques were paid, Mr. Ryan obtained Mr. Cassell's permission to enter onto the lands to have a topography done on Lot 35 and to survey and clear them. He indicated to Mr. Cassell that without Lot 35, he would not be prepared to go along with the purchase, as without it, they could not configure the development of the land as they would have liked to. The surveying and clearing were completed at a cost of $4,500.00 and $7,270.00. Invoices and the cheques evidencing payment for the work were exhibited as part of the Ryans' case.

9 Agreements for the sale of Lots 35, 36, 37 and 38 were never executed. Mr. Cassell had presented a draft agreement for sale in relation to Lots 35 and 36 which had to be amended to include Lots 37 and 38. The draft agreement did not include a clause in relation to access to Lot 35 and Lot 36 and so began the back and forth between the parties on that issue. Proposals were made and meetings were held but they yielded no results.

10 The situation crescendoed with a letter from Mr. Cassell to the Ryans dated 23 ^rd June 2008, which referenced the impasse and stated " I met with Mr. Ryan several months later and he said that he was not investing in property unless the road issue was resolved. I also told him that I am prepared to refund his money and sell the lots". He went on to inform them that he was returning the deposit of $11,000.00 and survey fees of $950.00 as Lot 35 was no longer available. The Ryans had discovered that it had actually been sold on 2 ^nd May 2008. In relation to Lots 36 and 37, he made no mention of Lot 38, he advised the Ryans as follows "[s] hould you fail to pay the balance for these properties by or before noon May 30, 2008, your deposit will be returned to you and the properties would be sold to another".

11 The Ryans informed Mr. Cassell that once Lot 35 had been sold they were no longer interested in purchasing the remaining lots. Their solicitor wrote to him on 21 ^st July 2008, challenging the legal basis for dividing the agreement and for returning $11,950.00, when the deposit had been paid on two lots. He also indicated that his clients had...