Annette Phyllis Sewell Claimant v Joseph Allain Stephanie Allain Defendants [ECSC]

• Jurisdiction: St Lucia
• Judge: Mason J
• Judgment Date: 27 November 2006
• Judgment citation (vLex): [2006] ECSC J1127-3
• Docket Number: Claim No. SLUHCV 528/2005
• Date: 27 November 2006
• Court: High Court (Saint Lucia)

[2006] ECSC J1127-3

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Claim No. SLUHCV 528/2005

Between:

Annette Phyllis Sewell

Claimant

and

Joseph Allain

Stephanie Allain

Defendants

Appearances:

Mr. Peter Foster in association with

Ms. Diana Thomas for Claimant

Mr. Dexter Theodore for Defendants

Mason J

1 This case is a vendor and purchaser dispute in which the Claimant is claiming:

• 1) an injunction preventing the Defendants from having any dealings with the property until this matter is completely settled;

• 2) specific performance of the Agreement to sell the property Block 0029B Parcel 3 to the Claimant;

• 3) further or alternatively general damages for breach of contract;

• 4) special damages;

• 5) loss of interest on any sums awarded as damages for such period and at such rate as the court may think fit, pursuant to Article 1009A of the Civil Code Chapter 242 of the 1957 Laws of Saint Lucia.

• 6) Costs hereof

• 7) Further or other relief as the court in its discretion decrees fit.

2 The Defendants are counterclaiming for:

• 1) damages for breach of contract;

• 2) a declaration that they were entitled to rescind the agreement for sale;

• 3) a declaration that the Defendants are entitled to refund the deposit paid by the Claimants;

• 4) further or other relief;

• 5) costs

Background

3 The parties met in late 2004 in St. Lucia and the Claimant indicated an interest in purchasing the property of the Defendants. On realising that the Claimant was from England, the Defendants accepted that she would first have to procure an alien landholding licence from the Government of St. Lucia before she would be allowed to purchase the property. An agreement for sale was drawn up in October 2004 by the then attorney at law for the Claimant with the assistance of the real estate agent for the Defendants. It was signed by the Claimant and then taken by the said real estate agent to the Defendants for their signature. The Defendants queried two (2) items contained in the agreement which the real estate agent promised to rectify but they nevertheless signed the document and the real estate agent returned it to the attorney at law for the Claimant.

4 The terms of the agreement for sale are hereby reproduced:

This Agreement made this 6 ^th day of October 2004

Between: Joseph Terrance Allain and Stephanie Allain both of Soufriere, St. Lucia,

Retirees (hereinafter jointly and severally referred as the Vendor)

And: Annette Phyllis Sewell of 294 Smedley Street, Madlock, Derbyshire DE4 3LH, U.K. retiree, at present in Soufriere, St. Lucia (hereinafter referred to as the purchaser)

The Vendor hereby agrees and consents:

The Purchaser hereby agrees and consents:

• 1) to sell to the Purchaser a portion of land measuring .24 hectares and the building erected thereon situate at Malgretoute in the Quarter of Soufriere registered at the Land Registry as Block 0029B Parcel 3 for a purchase price of six hundred and fifty thousand dollars ($650,000.00);

• 2) to get a qualified electrician to check the electrical wiring in the building;

• 3) to install a wooden jalousie door at the front entrance of building;

• 4) to install the louver window at back of building;

• 5) to replace ceiling fans

• 6) to reconnect water tank

• 7) to trim the trees so as to get a view of the sea;

• 8) to execute a Deed of Sale free and clear of all encumbrances on completion of the payment of the full purchase price being paid by the Purchaser

• 1) to purchase the portion of land measuring .24 hectares and the building erected thereon situate at Malgretoute in the Quarter of Soufriere registered at the Land Registry as Block 0029b Parcel 3 for a purchase price of Eastern Caribbean six hundred and fifty thousand dollars EC($650,000.00)

• 2) to deposit a sum of 15% of the purchase price equivalent to Eastern Caribbean ninety seven thousand five hundred dollars EC$97,500.00) upon execution of this Agreement: (Deposit refundable upon the Alien's Landholding Licence being denied)

• 3) to pay the balance of Eastern Caribbean five hundred and fifty two thousand five hundred dollars EC($552, 500.00) in (90) days pending any extension necessary to obtain Alien Landholding Licence.

5 The agreed deposit was paid and accepted by the Defendants not on the date of the execution of the agreement that is 6 ^th October 2004 but one (1) month after on 3 ^rd November 2004

6 In order to have the licence processed, there are certain documents which have to be appended to the application viz:

• a) finger prints and police certificate of character (the certificate to be from the area in which the applicant resides)

• b) four (4) passport size photographs

• c) two (2) bankers references

• d) two (2) personal references

7 The Claimant with the permission of the Defendants employed a gardener to landscape and maintain the grounds of the property.

8 On her return to the United Kingdom in November 2004, the Claimant set about gathering the documentation necessary to support the application for the licence. It is her evidence which I believe that because of the privacy laws in England, she experienced some difficulty in procuring the bank references. The documents were subsequently sent to the Claimant's attorney at law who submitted the application for the licence on 5 ^th January 2005 to the Ministry of Physical Development, Environment and Housing.

9 A letter dated 3 ^rd March 2005 was sent from this Ministry to the attorney at law for the Claimant indicating that Cabinet had granted approval of the licence subject to the satisfactory fulfillment of certain conditions and that the licence when prepared should be forwarded to the office of Attorney General for vetting.

10 During the month of March 2005, the arrangement for the gardener came to an end as a result of a visit to the property by the Defendant at which time his presence there was queried by the gardener. The Defendant took umbrage at the gardener's position and made a complaint to the Claimant who immediately asked the gardener to discontinue his work on the premises.

11 By letter dated 19 ^th April 2005 from the Attorney General's Chambers, the attorney at law for the Claimant was informed of the receipt of triplicate copies of the licence and that the office would continue to visae and process the documents.

12 By letter dated 25 ^th May, 2005, the Defendants through their attorney at law wrote to the attorney at law for the Claimant as follows:

25 ^th May 2005

Ms Althea Valmont

Laborie Street

Castries

Dear Madam

JOSEPH TERRANCE ALLAIN

STEPHANIE ALLAIN

We act herein and represent the above named:

Our clients instruct us that on or around the 6 ^th day of October 2004, they entered into written agreement for sale with your client ANNETTE PHYLLIS SEWELL. In that agreement, it was agreed between the parties that our clients would sell their property registered in the Land Registry of Saint Lucia as Block and Parcel No: 0029B 3 together with the building erected hereon at a total cost of Six hundred and fifty thousand dollars ($650.000.00).

A further term of the agreement was that the balance of the sale price would be paid within a period of ninety (90) days subject to any extension agreed between the parties to facilitate the granting of an Alien's Land Holding Licence.

We are informed that since the expiration of the ninety day period, the balance of the monies have not been paid and no extension has ever been requested from your client or agreed with our client.

On the basis of that breach, amongst other things, please be advised that our clients have treated themselves as discharged from their liability further to perform their own obligation under the agreement for sale and to accept performance by your client if made or tendered.

Please be advised therefore, that our clients are prepared to return the deposit of ninety seven thousand five hundred dollars ($97,500.00) less their expenses, loss of income and incidental costs, which was suffered by them, as a result of your client's breach of the agreement for sale.

Please be guided accordingly.

Yours faithfully,

MAUREEN JOHN

13 On 27 ^th May 2005 the attorney at law for the Claimant filed a caution on the property in the Land Register,

14 A number of letters passed between the two (2) attorneys at law specifically with reference to the term in the agreement "pending any extension necessary to obtain Alien Land Holding licence".

15 On 23 ^rd June 2005, the attorney at law for the Claimant informed her client that the licence was about to be received whereupon the Claimant wire transferred the balance of the purchase money which was received by the attorney at law on the next day 24 ^th June 2005.

16 On 5 ^th July 2005 attorney at law for the Defendants sent to the attorney law for the Claimant the following letter:

5 ^th July 2005

Ms Althea M Valmont

Balboa Edwards Building

7 Jeremie Street Castries

JOSEPH & STEPHANIE ALLAIN

We have just received instructions from our client.

Please be informed that our client wishes to state categorically once again that they do not wish to sell their property anymore.

We would be pleased therefore if you could inform us as to how and/or where payment should be made for the return of the deposit less expenses.

Please be guided accordingly.

Yours faithfully,

………………………………

MAUREEN JOHN

Evidence

17 Evidence was by witness statements and cross examination. There were seven (7) witnesses for the Claimant and two (2) for the Defendants.

For the Claimant

18 The first to give evidence was Althea Valmont, the attorney at law for the Claimant who prepared the agreement for sale and the application for the licence. In her witness statement she spoke among other things of from December 2004 frequent telephone calls either to or from the Defendant about the status...