H.E.R Ltd v Maharaj
| Jurisdiction | Trinidad & Tobago |
| Judge | Sealey, J. |
| Judgment Date | 02 July 1996 |
| Neutral Citation | TT 1996 HC 140 |
| Docket Number | No. 2722 of 1991 |
| Court | High Court (Trinidad and Tobago) |
| Date | 02 July 1996 |
High Court
Sealey, J.
No. 2722 of 1991
Mr. T.A. Lee S.C. for the plaintiff, Mr. D. Alexander with him.
M. K. Harrikissoon for the defendant.
Contract - Breach — Action filed by plaintiff which sought a declaration that it was entitled and did rescind two agreements in writing made between the plaintiff company and the deceased and a refund of the aggregate deposit of $3,775,000.00 and a declaration that it was entitled to a lien on certain parcels of land for the said deposit until repaid — Court held that the plaintiff did rescind the contract and that the defendant was to refund the plaintiff the said amounts.
An action was filed by the plaintiff on 7th August, 1991 seeking the following relief:
A declaration that it was entitled to and did rescind two agreements in writing dated the 3rd. December, 1982 (the first agreement and the 7th December, 1982, (the second agreement) respectively, made between H.E. Robinson and Company Limited (the company) and Krishna Maharaj deceased.
- A refund of an aggregate deposit of $3,775,000.00. A declaration that it is emitted to a lion on certain parcels of land for the said deposit until repaid. 4. Damages for breach of contract.
The facts. briefly are as follows:
By the first agreement one Krishna Maharaj, now deceased, agreed to sell to the company and the company agreed to purchase all and singular those two contiguous parcels of land situate in the Ward of Arima, in the county of St. George, comprising four acres and ten acres respectively, the exact area and delineation of which ware to be ascertained by survey at and for the price of $3,500,000.00 subject to the reservation of the Oil and Mining rights on the terms and conditions therein set out and in particular the provision for effecting and completing by the deceased of certain infra structural works, the provision of two access roads to the two said parcel of land and subject overall to the deceased obtaining outline approval for warehousing and industrial use of the said parcels of land from the Town and Country Planning Divisions of the Ministry of Finance and Planning.
By this first agreement in consideration of the sum of $137,500.00 paid by the company to the deceased, the deceased further agreed to give to the company an option to purchase another contiguous parcel of land comprising 10 acres at and for the sum of $2,750,000 but otherwise on the same terms and conditions therein set out and provided.
By the second agreement also in writing, the company exercised the said option and the deceased agreed to sell and the company agreed to purchase the said ten acre parcel referred to in the first agreement under the terms and conditions referred to therein.
On the 9th day of June, 1983, the plaintiff and the deceased executed a memorandum under seal or dead wherein the plaintiff herein was substituted far the company as being the purchaser. The document recited the agreements between the company and the deceased who covenanted to do the developmental works referred to in the agreement and to have same completed to the satisfaction of the plaintiff before the balance of the purchase price was paid. It was never registered. It provided for the payment of the balance of the purchase price when the developmental works ware completed, no mention was made of the outline approval.
Over the period of negotiations, the plaintiff paid to the deceased the aggregate sum of $3,675,000.00 on account of the said purchase price, a sum greater than the sums quoted in the agreements and the memorandum..
In both agreements, it was provided “that the conditions in clauses ……….. [the developmental works and the outline approval] hereinabove written the purchase shall be completed on or before the 30th day of April 1983 when the vendor will execute a proper conveyance of the property to the purchaser or to its order.”
The deceased failed and/or neglected to obtain the necessary outline approval before the date of the expiration of the said agreements to wit the 30th April, 1983. From the correspondence seen it is clear that at some point the plaintiff was not satisfied with the developmental works carried out by the deceased. There is also no dispute that the deceased had not up to the time of his death, obtained the planning approval for the development of the land.
The deceased died on the 19th March, 1988 and letters of administration to his estate was granted to the defendant herein on the 8th July, 1988.
The action was filed in 1991 some eight and more years after the contracts and the memorandum were signed.
I have no doubt in my mind that those ware condition precedents to the completion of the agreements. Outline approval was not received by the 30th April, 1883 the date for completion. By the 24th November, 1383, the deceased had not yet obtained outline approval from the Town and Country Planning Division, and the then attorney for the plaintiff undertook to pursue the said application, an option which was available to the plaintiff under the terms of the agreements. By letter dated the 4th May, 1984, attorney far the plaintiff was complaining about not receiving plans and other documents from the deceased to assist the plaintiff in making the application for outline approval. By letter dated the 12th February, 1986, the plaintiff was stilt complaining about not receiving documents to pursue the application, and demanded delivery of the documents or the outline approval which had not yet come to the solicitor. It was only by letter of the 8th July, 1991 from the Town and Country Planning Division that the plaintiff was informed that outline permission was refused. The plaintiff is saying that that is the time from which time should run against it. From these facts the questions which arise for determination are as follows:
Whether the action was barred by the Limitation of Personal Actions Chapter 5 No. 6, when it was flied on the 7th August, 1991.
Whether the memorandum in writing under seal executed by the plaintiff and the deceased, and dated the 9th June, 1983 replaced the said agreements.
Whether the purser in the 1982 agreements could bind the purchaser in the 1983 deed and vice versa.
I will start with the second of these first:
Whether the memorandum dated the 9th June, 1983 replaced the agreements:
Attorney for the plaintiff says that the memorandum is a conveyance in escrow. The document has all the indicia of a conveyance. It was stated to be a deed made between the deceased of the one part and the plaintiff of the other part; it was signed and delivered by the deceased and the common seal of the plaintiff was affixed thereto. What is an escrow? Harman L.J. in the case of Beesly v. Hallwood Estates, Ltd. [1961] 1 ALL E.R. 90, at page 93 said:
“An escrow, then, is a type of deed which, perhaps, is best described in Norton on Deeds; I read from the author's (the first) edition at p. 15: “If an instrument be delivered to take effect on the happening of a specified event or upon condition that it is not to be operative until some condition is performed, than pending the happening of the event or the performance of the condition the instrument is called an escrow. ‘The maker [of a deed] may so deliver it as to suspend or qualify its binding. He may declare it shall have no effect until a certain time has arrived or the condition has been performed, but when the time has arrived or area condition has been performed, the delivery becomes absolute, and the maker of the deed is absolutely bound by it whether he has parted with the possession or not. Until the specified time has arrived, or the condition has been performed, the instrument is not a deed. It is a mere escrow.”
Then in the case of Foundling Hospital (Governors and Guardians) v. Crane [1911] 2 K.B. 367 @ 377, Farwell LJ. said “There are two sorts of delivery, and two only, known to the law, one absolute, and the other conditional, that is as an escrow to be the deed of the party when, and if, certain conditions are performed. If the deed operated as a complete delivery, cadit quaestio; If it did not, then it must be either an escrow or nullity. The mode in which it in fact operated is a question of intention, primarily of the grantor, and secondarily of the grantee; nothing passes out of the grantor against his intention, and no one can be compelled to accept an assignment of any property, onerous or otherwise, without his consent. Now an escrow or script is not a deed at all; It is a document delivered upon condition on the performance of which it will become a deed, and will take as from the delivery, but until such performance it conveys no estate at all. …….. The rules relating to escrows are thus stated by the Preston in his book on Abstracts, 2nd. ed;, vol. 3, p. 65: A(1) The writing will not operate as a deed till the second delivery: (2) The party deputed to make the second delivery cannot glue to the writing by delivering the same before the conditions are performed: (3) On the second delivery of the writing it will have relation, for they purposes of the title, and not for the purpose of giving a right to intermediate rents, &c., from the delivery: (d) so as the conditions be performed, and the deed delivered a second time, the deed will be a good, notwithstanding the dash of both or...
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