Bain et Al v Last Island Corporation and Small
| Jurisdiction | Trinidad & Tobago |
| Judge | Rajnauth-Lee, J. |
| Judgment Date | 29 May 2008 |
| Neutral Citation | TT 2008 HC 119 |
| Docket Number | CV 1505 of 2007 |
| Court | High Court (Trinidad and Tobago) |
| Date | 29 May 2008 |
High Court
Rajnauth-Lee, J.
CV 1505 of 2007
Mr. Karl T. Hudson-Phillips Q.C. leading Mr. Garvin Simonette instructed by Ms. Faikah Carrmuddeen for the claimants.
Mr. Seenath Jairam S.C. leading Mr. Rishi Dass instructed by Ms. Helen Alves for the defendants.
Real property - Agreement for sale of land — Sale incomplete — Claimants attempted to sell to someone else — Caveat lodged against land — Caveat not bad because agent had no caveatable interest — Defendants had sufficient equitable interest in land to allow caveat to remain.
By an application made by Fixed Date Claim Form filed on the 10th May, 2007, pursuant to section 126 of the Real Property Ordinance Chapter 27 Number 11, the claimants, who are the registered proprietors of the lands described in the Claim Form and known as Friendship Estate in the Island Ward of Tobago, claimed that the defendants should show cause why the caveat lodged in their favour on the 8th July 2002 with the Registrar General against Friendship Estate should not be removed. The application also sought an order that the Registrar General be directed to remove the said caveat and that the costs of the application be paid by the defendants to the claimants.
After reviewing the Written Submissions and authorities submitted by attorneys acting on behalf of the parties, and after hearing the oral arguments presented, the Court ordered that the claimants' Fixed Date Claim Form be dismissed and the caveat lodged by the defendants remain in force with no conditions attached. I now give the written reasons for so ordering.
The facts of this matter were for the most part undisputed and were contained in the affidavits of the second claimant, Janice Bain-Mottley and the second defendant, Michael Small. The claimants applied for permission to use two further affidavits: the first was the affidavit of Rachel Cyrus sworn to and filed on the 21st September 2007, and the second, the affidavit of Faikah Carrmuddeen sworn to and filed on the 8th October 2007. Permission was granted for the use of the first affidavit but refused with respect to the second affidavit. Both applications are dealt with later in this judgment.
On the 8th October 1990 the second defendant entered into an agreement with one Percival Bain, now deceased, for the purchase of 6.2 acres of Friendship Estate for the price or sum of $930,000.00. The 6.2 acres are hereinafter referred to as “the said parcel of land”. The 1990 agreement (“the Principal Agreement”) was signed only by Percival Bain, the father of the second and third claimants and husband of the first claimant, although the claimants were joint owners of Friendship Estate along with Percival Bain. Pursuant to the Principal Agreement, the second defendant paid to the deceased the sum of $93,000.00 as a deposit on account of the agreed purchase price. The Survey Plan of the said parcel of land, prepared by Paul Williams, Land Surveyor, was annexed to the Principal Agreement.
On the 9th September 1994, a second agreement (“the Supplemental Agreement”) was entered into by the defendants for the purchase of the said parcel of land. The Supplemental Agreement was made between the deceased, Percival Bain, and the claimants as vendors, the first defendant as purchaser and the second defendant as agent of the first defendant and was made supplemental to the Principal Agreement. The Supplemental Agreement replaced and superseded the Principal Agreement and the Principal Agreement was thereby revoked and thenceforth became of no further effect.
[Clause 15 of the Supplemental Agreement].
Pursuant to the Supplemental Agreement, the defendants paid to the claimants a further sum of $700,000.00 towards the new purchase price of $920,000.00. Together with the sum of $93,000.00 paid by the defendants in 1990, a total sum of $793,000.00 (a substantial sum of money at that time) had then been paid to the claimants on account of the new purchase price pursuant to the Supplemental Agreement. There remained a balance of $127,000.00 due and owing on the purchase price. This said sum was to be paid to the claimants on the Completion Date, which was agreed to be fourteen (14) days after the obtaining of the Final Approval for the sub-division of the said parcel of land. By virtue of clause 2(c) of the Supplemental Agreement, the first defendant agreed that it would be responsible for obtaining the approval from the Director of Surveys with respect to the sub-division of the said parcel of land. By clause 6, the first defendant agreed that it would be solely responsible for obtaining final approvals for the subdivision of the said parcel of land from the relevant authorities and undertook to use its best endeavours to do so within the shortest possible time frame. Five applications have been made for planning approval from the relevant authorities, one of which is still pending. The sale has not been completed.
By the principal affidavit of the second defendant, he deposed that sometime in 2002, it came to his attention that the claimants intended to sell the entirety of Friendship Estate, including the said parcel of land. On the 14th March 2002, the defendants attempted to lodge a caveat over the said parcel of land. This caveat was not accepted by the Registrar General's Office. On the 8th July 2002, the defendants lodged a caveat with the Registrar General over the entirety of Friendship Estate claiming to hold an equitable interest as Purchasers under and by virtue of the Principal Agreement and the Supplemental Agreement. It is this caveat that is the subject matter of the Claim before the Court.
By her principal affidavit, the second claimant deposes that as a result of differences between her mother, the first claimant, and herself on the one hand, and her sister, the third claimant on the other, concerning the price at which Friendship Estate should be sold, the first and second claimants instituted partition proceedings by way of High Court Action No. 2974 of 2004, seeking an order that Friendship Estate be sold at the best price obtainable. On 29th June, 2005, the Honourable Mr. Justice Ian Benjamin ordered that Friendship Estate save and except the 45.9 acres sold to Seereeram Brothers and that portion subject to the Principal and Supplemental Agreements be sold by way of sealed bid/tender for the best price that could be obtained with a minimum reserve price of US$20,000,000.00.
By her principal affidavit, the second claimant recounts the efforts made by the claimants to sell Friendship Estate. Eventually, on the 18th June, 2007, the claimants entered into an agreement with the Tobago House of Assembly (“the THA”) for the sale of the entirety of Friendship Estate. The caveat prevents the claimants from completing the sale with the THA.
Mr. Hudson-Phillips argued before me that the Registrar General should not have accepted a caveat over the entirety of Friendship Estate since the defendants could not have shown an estate or interest in the land as required by section 125 of the Real Property Ordinance. It was also argued on behalf of the claimants that since the second defendant was a mere agent, he could not galvanize any interest capable of supporting maintenance of the caveat in this case. Accordingly, it was argued, his inclusion in the caveat lodged jointly was fatal to him as well as the entire caveat as the caveat was not a bona fide caveat and must be removed.
It was also contended on behalf of the claimants that where purchaser and vendor in freedom of contract provide in their agreement for sale for conditions in the nature of that created by clause 6 of the Supplemental Agreement, then the purchaser acquires no equitable interest until the condition is either fulfilled or waived by the vendor.
Therefore, it was submitted, since the obtaining of planning permission was a condition precedent to the agreement for sale, without the planning permission, there was no enforceable contract between the parties but merely an inchoate agreement which prevented the defendants from acquiring any interest in the said parcel of land. Without such an interest, an action for specific performance could not be maintained. It was further argued that the 1995 refusal by the planning authorities and the failure of the purchaser to launch an appeal to the Minister pursuant to the Town and Country Planning Act, Chap.35:01, meant that on the completion date with an un-appealed refusal, the agreement for sale came to an end.
On the 4th March 1996, the first defendant was struck off the Register of Companies of the Cayman Islands. The first defendant was not restored to the Register until the 3rd June 2003. It was therefore argued on behalf of the claimants' that at the time of the lodging of the caveat on the 8th July 2002, the first defendant was not an entity known to law and therefore was not competent to lodge the caveat.
In the claimants' written submissions, it was argued that the first defendant being a foreign investor as defined by the Foreign Investment Act No. 16 of 1990 was required to obtain the permission of the Minister of Finance given by licence to acquire land in excess of 5 acres before it could claim any estate or interest in the said parcel of land. This argument was abandoned at trial as Mr. Hudson-Phillips conceded that the case of Young and Another v. Bess (1995) 46 W.I.R. 165, cited on behalf of the defendants, applied to this case. In Young, the Judicial Committee of the Privy Council held that failure to obtain a ministerial licence did not preclude the vesting of the subject lands in the purchaser. The purchaser would, therefore, hold a voidable title until the Attorney General, if he so elects, applies for a declaration...
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