Mccave v Simon
| Jurisdiction | Trinidad & Tobago |
| Judge | Davis, J.A.,Des Iles, J.A.,McMillan, J.A. |
| Judgment Date | 31 May 1990 |
| Neutral Citation | TT 1990 CA 18 |
| Docket Number | Civil Appeal No. 12 of 1984 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 31 May 1990 |
Court of Appeal
Des Iles, J.A.; McMillan, J.A.; Davis, J.A
Civil Appeal No. 12 of 1984
Mr. Stanley Marcus for appellant
Mr. Alvin Fitzpatrick for respondent.
Contract - Agreement for sale of land — Specific performance — Apparent defect in title — Parties by their conduct, deciding to kept the contract alive by applying to have the land brought under provisions of the Real Property Ordinance — This meant that agreement now to be concluded within a reasonable time — Appellant/vendor later returning deposit and informing respondent/purchaser that contract was null and void on account of failure by respondent/purchaser to complete within time agreed to in correspondence between the parties — Respondent waived right to insist on a good marketable title because of appellant's threats to end contract — Appellant purported to accept respondent's offer to complete by a certain date, thus making time of the essence of the contract — Appellant's attempt to make time of the essence premature and ineffective — Balance of equity leaned in favour of respondent — Appeal dismissed.
This appeal arose out of an action commenced by the respondent against the appellant and the appellant's sister, Iena Joseph, wherein the respondent sought and obtained a decree of specific performance against the appellant and his sister.
Hearing of the High Court Action was completed on the 18 th June, 1982, and a written judgment delivered by the learned trial judge on the 19 th December, 1983. On the 29 th October, 1983, the appellant's sister died, but it appears that no attempt has been made by the personal representative of the appellant's sister to take any part in these proceedings, as such representative would be entitled to do, having regard to the provisions of section 27 of the Supreme Court of Judicature Act, Chap. 4:01.
Indeed, it appears to me that the appeal in this matter can only be by the appellant Vernon Conrad Mc Cave. I made this observation because the notice of appeal filed in this matter on the 27 th January, 1984, is rather strongly intituled. It is intituled “Vernon Conrad Mc Cave (Iena Joseph died 29 th October, 1983) – defendant-appellant.” I regard the words in brackets as surplusage and I propose to disregard them completely.
The facts of the matter are that on the 20th May, 1975, the appellant and his sister entered into an agreement in writing too sell to the respondent a parcel of land situate at Unity Road, Richplain, Diego Martin, comprising 3 acres 1 rood and 29 perches for the sum of $50,000.00 free from all encumbrances (hereinafter called “the said land”).
The agreement was made subject to the following terms and conditions –
“(a) You will provide a good and proper marketable title to the said premises free from all encumbrances whatever.
(b) A deposit of three thousand dollars ($3,000.00) will be made upon the acceptance of this offer.
(c) The balance of Forty–seven thousand dollars ($47,000.00) will be paid within ninety (90) days of the acceptance of this offer of which time shall be the essence.
(d) You are to produce on or before the completion of this agreement all receipts for rates, taxes and other outgoings paid in full up to date in connection with the said premises to my Solicitors Messrs. De Nobriga, Inniss & Co.
(e) Vacant possession of the said premises, will be given to me upon payment of the balance of the Purchase Price and a proper Assurance shall be executed in my favour or to whom I shall direct.
(f) This transaction will be completed at the offices of Messrs. De Nobriga, lnniss & Co., of No. 43 St. Vincent Street, Port of Spain.
(g) The deposit of three thousand dollars ($3,000.00) will be repair to me immediately if the Title to the said premises is defective or if vacant possession cannot be given as aforesaid.”
The deposit of three thousand dollars ($3,000.00) was duly paid by the respondent and the respondent's solicitors Messrs. De Nobriga, Inniss & Co., preceded to investigate the title to the said parcel of land.
Some sixty days after the parties had entered into this agreement the respondent's solicitors, by letter dated the 29th July, 1975, informed the appellant and his sister that there appeared to be a defect in the title to the parcel of land in question. The defect then appeared to be that solicitors for the respondent could not ascertain how the late Charles Mc Cave, father of the appellant, and his sister had become the owner of the parcel of land.
The respondent's solicitors further informed the appellant and his sister by the said letter that in the absence of some proper root of title “we will assume that the title is defective and the same may have to be brought under the provisions of the Real Property Ordinance.”
It seems patently clear to me at this stage of the proceedings it was open to the appellant and his sister to refund the deposit to the respondent, pursuant to clause (g) of the conditions of the agreement, and to put an end to the agreement.
The appellant and his sister chose not to do so. Instead, the appellant instructed the respondent's solicitors to apply to the Registrar General of Trinidad and Tobago to have the parcel of land brought under the provisions of the Real Property Ordinance, and agreed that the respondent would pay the cost of so doing and deduct same from the purchase price of the parcel of land when the transaction was completed. This instruction is contained in a written document signed by the appellant and dated the 28th August, 1975. I shall refer to this document in greater detail at a later stage.
By the 20th August, 1975, approximately 89 days of the 90-day period fixed for completion under the agreement had expired, and it is clear that this agreement could not, in the circumstances, be completed in the time contemplated therein.
What is also quite clear to me is that the parties, by their conduct, had decided to keep the contract alive and this could only be on the basis that time which was originally of the essence under the agreement was no longer so. Completion would now depend upon the time it would take for the parcel of land to be brought under the Real Property Ordinance. In other words, this agreement became one which had to be completed within a reasonable time having regard to all the circumstances.
I think this court can take notice of the length of time it takes to bring land under the provisions of the Real Property Ordinance. Surveys have to be done. Plans have to be drawn. They have to be submitted to various Government Departments for approval. They take their place in the queue. Advertisements have to be made in daily newspapers. Persons may make objections and claims to portions of the land in question. An application of this nature could take eighteen months to two years to complete.
On the 3rd December, 1975, some three months after the appellant and his sister had in effect constituted the respondent's solicitors, their agent for bringing the parcel of land under the Real Property Ordinance, the appellant and his sister had Messrs. D.C. Boucaud & Company, a firm of solicitors, write the respondent through his solicitors stating the following: –
“One of the terms of the agreement was that the vendors provide a good marketable title to the land, but it has been found that they do not have such title. Our clients instructed your solicitors to prepare their application to the Registrar General to bring this land under the Real Property Ordnance, but they are informed that no steps have yet been taken in this respect.
As it appears that you are unwilling to proceed with the purchase of this land, our clients are prepared to refund you the deposit of $3,000.00 and have this contract annulled, and we would be obliged if you would inform us as early as convenient whether you agree to this course being adopted.”
The respondent's solicitors replied to this letter on the 6th January, 1976, emphasizing that the respondent had every intention of completing the transaction “as soon as the lands are brought under the Real Property Ordinance,” denying that no steps had been taken to bring this parcel of land under the Ordinance, and refusing the offer of a refund of the respondent's deposit.
Some two months after the letter of the 6 th January, 1976, the solicitors for the appellant again wrote the respondent's solicitors by letter dated the 3 rd March, 1976, informing them that they were instructed by their client that it was not possible to bring the whole parcel of land under the Real Property Ordinance as some seven lots forming part thereof were claimed by a Mr. Brunton a neighbouring landowner, and again offering to refund the deposit and to pay the expenses to date relative to the application to bring the lands under the Ordinance.
Respondent's solicitors responded to this letter on the 16th March, 1976, disagreeing with the contention that it was not possible to bring the whole: parcel of land under the Ordinance, and seeking further information concerning the area claimed by Brunton and the point in time when Brunton made his claim, namely, whether this claim was made at the time of the survey of the land or subsequent thereto. There was again an expression of intention to complete the transaction.
The solicitors for the appellant replied on the 24 th March, 1976, to the letter of the 16 th March, 1976, pointing out that the wrong survey plan had been sent to them under cover of the letter of the 16th March, so it was not possible to identify the portion claimed by Brunton, and advising that it was Mr. Petit, a land surveyor, who informed their client, the appellant, that he could not include the portion claimed by Brunton in the “R.P.O. Survey.”
The letter of the 24 th March, 1976, then continued as...
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