Taylor et Al v Dublin

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judgment Date: 06 April 2001
• Neutral Citation: MS 2001 HC 3
• Docket Number: 53 of 1992
• Date: 06 April 2001

High Court

53 of 1992

Taylor et al

and

Dublin

Appearances:

Mr. John Kelsick for the plaintiffs.

Mr. K Allen Q.C. for the defendant.

Contract for sale of property - Rescission — Plaintiffs claimed order for rescission of an agreement for the purchase of property made between the parties, repayment of the sum paid on account of the purchase price and a declaration that the plaintiffs had a lien on the said property for the said down-payment, damages, interest and costs — Whether claims supported by evidence — Agreement of sale provided that if plaintiffs were unable to obtain the requisite landholding licence and an acceptable mortgage the agreement would become void and the deposit would be returned to them — Unable to secure acceptable mortgage to complete purchase — Order that property of defendant was to stand charged with the sum paid towards the purchase price in favour of the plaintiffs — Such charge should not act as a bar to the sale of the property by the defendant but the proceeds of sale should be used to discharge the debt to the plaintiffs — Judgment for plaintiffs on said claim — Other claim by plaintiffs for damages dismissed — Costs to plaintiffs.

1 JUDGMENT OF THE COURT: The plaintiffs are an American building contractor and his wife. They visited Montserrat in early 1989 shortly before the passage of hurricane Hugo which was regarded as the most significant natural disaster to happen in Montserrat up to that time. They entered negotiations with the defendant, a local businessman, with a view to purchasing from him a dwelling house at Foxes Bay which was thought by the plaintiffs' at the time to be owned by the defendant and a Mrs. Nancy Erb. Indeed, the bulk of the early negotiations seemed to have been done between the plaintiff Mr. Taylor and Mrs. Erb.

2 An agreement, was entered into by the plaintiffs and the defendant whereby the plaintiffs were to purchase an incomplete structure for a dwelling house from the defendant for a sum of US$230,000.00; and the defendant who was also described as a building contractor would complete the structure and make improvements to the property for a further sum of $100,000.00.

3 This made an overall transaction amount of US$330,000.00 which the parties agreed would have given to the plaintiffs in the end the dwelling house with certain improvements thereto as added by the defendant. The improvements envisaged and agreed between the parties included the satisfactory completion of the dwelling house with an apartment added and a swimming pool.

4 Furnishing the dwelling house and the apartment was also included in the overall transaction. The two matters though were the subject of separate documents. agreements made between the plaintiffs and the defendant on or about the month of July 1989 for the sale by the defendant on or about the month of July 1989 for the sale by the defendant to the plaintiffs of the freehold property consisting of a partly furnished dwelling house and a lot of land situate in the Foxes Bay Housing Estate in the island known as Turtle vue and recorded in the Register of Titles of Montserrat as parcel 23 block 7/5 Elberton Registration Section for the sum of U.S.$325,000.00.

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Repayment of the amounts paid by the plaintiffs on account of the purchase price totaling U.S.$127,500.00. 3. Damages for breach of the said agreement. 4. Damages for trespass to various items of furniture, household equipment and personal belongings being the property of the plaintiffs kept by the plaintiffs in and about the said dwelling house. 5. Interest on the said down payment and damages for such period and at such rate as this Honourable Court should consider just. 6. A declaration that the plaintiffs are entitled to a lien on the said freehold property for the said down payment, damages, interest and costs recovered by the plaintiffs in this action.”

5 A statement of claim was filed sometime later and in that the plaintiffs made the following averments;

• “2. On or about the month of March, 1989 the plaintiff entered into negotiations with the defendant and the defendant's agent, one Nancy Erb of Woodlands, Montserrat, for the purchase of the defendant's property at Foxes Bay, Montserrat. Said property consisted of a partly finished unfurnished dwelling house on a lot of land recorded as parcel 23 block 7/5 Elberton Registration Section.

• 3. It was orally agreed between the plaintiffs and the defendant that the plaintiffs would pay the sum of US$325,000.00 for the said property on condition that the defendant would complete the construction of the existing dwelling house and add thereto a downstairs apartment and a swimming pool and would furnish the dwelling house and apartment according to the specifications of the plaintiffs.

• 4. In the pursuance of the said oral agreement on the 18th March, 1989, the plaintiffs paid the defendant the sum of US$5,000.00 and the first plaintiff wrote to the defendant on the 23rd March, 1989, seeking information pertinent to the purchase and ownership of property in Montserrat and itemising the equipment and furniture which the plaintiffs required to be… $230,000.00 and not $225,000.00 as agreed between the plaintiffs and the defendant and provided for the payment of the same in full by the 15th July, 1989. Said agreement failed to state that the agreement for sale was conditional upon the defendant completing the construction of the dwelling house and the services thereto and equipping and furnishing same at the cost to the plaintiffs of US$100,000.00. The plaintiffs nevertheless signed and returned said agreement to the defendant.

• 10. The defendant's said agent Nancy Erb also delivered to the plaintiffs a draft-building contract purporting to provide for the completion of the building and the additional work as agreed. Said draft building contract was incomplete and unacceptable to the plaintiffs as written and the plaintiffs returned same to said Nancy Erb and requested that it be corrected to reflect the terms of their oral agreement with the defendant.

• 11. On about the 26th July, 1989, the said Kenneth Allen Esq., remitted by facsimile to the plaintiffs a copy of their landholding licence and a bill for legal services in connection with the transfer of title to the plaintiffs. The plaintiffs duly remitted the sum of US$15,633.00 to settle the same.

• 13. In further pursuance of the said agreement the plaintiffs paid to the defendant the sum of US$100,000.00 on or about the 17th August, 1989 and signed a demand promissory note in the defendant's favour providing for the payment to him of a further US$100,000.00.

• 15. On or about the last week of September, 1989, the first plaintiff visited Montserrat to inspect the damage caused to the property by Hurricane Hugo, which struck on the 17th September, 1989, and on his return to the U.S.A., dispatched a letter by facsimile to said Nancy Erb expressing concern at the defendant's lack of progress in carrying out the said work as agreed and to commence repairs of the damage to the property caused by the hurricane.

• 17. On or about the 16th November 1989, the defendant telephoned the plaintiffs and assured them that the building work was almost completed. [On or about the for defendant 1989,] the defendant again telephoned the plaintiffs and told them that due to unavailability of building materials on Montserrat he would not be able to complete the work until the end of January, 1990. The plaintiffs by letter dated the 8th December, 1989, confirmed the said telephone conversation and, inter alia advised the defendant that they would be coming to Montserrat in February, 1990, to take possession of the property.

• 21. On the 30th March 1990, the defendant abandoned the work before same was completed and has never completed same.

• 22. Subsequent thereto on a date unknown to the plaintiffs, the defendant forcibly entered the said dwelling house and took possession thereof together with the sundry personal belongings and furnishings belonging to the plaintiffs and kept by them in and about the said premises. The…

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The defendant contends that, referring to the agreement mentioned in paragraph 1 of the plaintiffs' statement of claim or any agreement made between the plaintiffs and the defendant, the defendant performed his contract save in so far as he was unable so to do by the plaintiffs' failure or inability to provide funds for the said purpose and that the plaintiffs are not entitled to rescind the agreement. 2. Referring to paragraph 2 of the plaintiffs statement of claim, the defendant accepts that he received US$127,500 being part payment of the purchase price of real property at Foxes Bay, Montserrat, the said purchase price being US$230,000.00. 4. The defendant contends that the plaintiffs are indebted to him inter alia in the sum of US$102,500 being the balance of the said purchase price.

COUNTERCLAIM

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On or about the 7th day of April 1989, the defendant entered into an agreement for sale with the plaintiffs for the sale to them of lands and a dwelling house at Foxes Bay, Montserrat together with furniture and furnishings for $230,000.00 United States Currency. For the purpose of this agreement the said lands and dwelling house were valued at US$216,000.00 and the furniture and furnishings at $14,000 United States Currency. 8. In addition, by way of an independent agreement, the defendant agreed to carry out certain improvements on the said premises for which the plaintiffs would pay $110,000.00 United States Currency and the plaintiffs agreed to pay all unpaid balances by agreed installments and the plaintiffs executed a promissory note for the said sums. 9. On account of a reversal of fortune or for some other reason personal to them, the plaintiffs were unable to meet their obligations to the defendant and sought to repudiate the contract. 10. Without prejudice to his right to...