Marcus et Al v Lawaetz et Al
| Jurisdiction | St Lucia |
| Judge | Robotham, J.A. |
| Judgment Date | 15 February 1982 |
| Neutral Citation | LC 1982 CA 1,LC 1981 CA 3 |
| Docket Number | Civil Appeal No. 6 of 1980 |
| Court | Court of Appeal (Saint Lucia) |
| Date | 15 February 1982 |
Court of Appeal
Peterkin, C.J., Berridge, J.A., Robotham, J.A. (Ag.)
Civil Appeal No. 6 of 1980
Practice and Procedure - Appeals — Privy Council
Facts: This was an application for leave to appeal to the Privy Council.
Held: Application granted.
UPON READING THE NOTICE OF MOTION of the above named plaintiffs (hereinafter called “the appellants”) dated the 4th day of December, 1981, preferred unto this court this day for conditional leave to appeal to the Judicial Committee of the Privy Council against the judgment of this court delivered herein on the 23rd day of November, 1981.
AND the affidavit of Primrose Bledman sworn the 4th day of December, 1981 filed herein.
AND UPON HEARING Counsel for the appellants and counsel for the respondents.
THIS COURT DOTH BY CONSENT ORDER that subject to the performance by the appellants of the conditions hereinafter mentioned and subject also to the final order of this court upon due compliance with such conditions leave to appeal to Her Majesty in Council against the said judgment is hereby granted to the appellants.
1. That the appellants do within 90 days from the date hereof provide security in the sum of £500 sterling to the satisfaction of the registrar or deposit into court the said sum for the due prosecution of the said appeal.
2. That the appellants do within One Hundred and Twenty days from the date hereof take out all appointments that may be necessary for the settling and preparation of the transcript record in such appeal to enable the registrar to certify that the said transcript record has been settled and that the provisions of this order on the part of the appellants have been complied with.
3. That there be a stay of execution in respect of the award of damages and costs until the hearing and “determination of the appeal by Her Majesty in Council.
4. That the appellants do within One Hundred and Fifty days from the date hereof bring this application into court upon an application for final leave to appeal to Her Majesty in Council.
5. That the costs of and occasioned by this application be costs in the cause to abide the result of the appeal.
6. That each party may be at liberty to apply as may be advised.
7. That the appellants do have and are hereby granted leave to write up this order.
We hereby consent
We hereby consent
Sgd. Mr. F. Ramsahoye, Q.C.
Sgd. T.L. Cozier
Solicitor for appellants.
Solicitor for respondents
Court of Appeal
Peterkin, C.J.
Berridge, J.A.
Robotham, J. A.(Ag.)
Civil Appeal No. 6 of 1980
Dr. F. Ramsohoye and Mr. P. Eledman for the appellants
Mr. T. Hosein and Mr. Trevor Cozier for the first respondent
Mr. D. McNamara and Mr. A. McNamara for the second respondent.
Contract - Breach — Agreement for purchase of shares
Practice and procedure - Appeal — Privy council
Facts: This was an action brought jointly by three plaintiffs\appellants against the two defendant/respondents in which they claimed damages from both defendant/respondents for breach of contract together with recovery of various sums of money being over a million dollars. The defendant claimed damages against the plaintiff/appellant for breach of contract over a purchase agreement whereby the appellants agreed to purchase 90% of the shares beneficially owned by him in the second defendant's company for the sum of over two million US dollars. The case turned on the proper construction of the relationship between three instruments, namely a joint venture agreement 1971, an addendum to this in 1973 and agreement to purchase shares in 1973.
This was an application for leave to appeal to the Privy Council.
Held: The agreement created an obligation on the part of the defendant to sell to the plaintiffs and on the part of the plaintiff to purchase the shares. The plaintiffs were in breach of contract. The first defendant's counterclaim was maintainable and he was entitled to an award of damages on the basis of the plaintiff's repudiation. Appeal dismissed. Damages in the sum of $500,000.00 awarded to the first defendant/appellant.
Application granted.
Robotham, J.A. (Ag): This is an action brought jointly by the three plaintiffs/appellants against the two defendants/ respondents in which they claimed damages from both defendants for breach of contract together with recovery of the following sums:
(1) One million and eight thousand ($1,008,000) US dollars or the equivalent of one million nine hundred and fifty five thousand six hundred and twenty ($1,955,620) dollars Eastern Caribbean Currency as expenses incurred and thrown away consequent on a breach by the defendants on their part to perform their obligations as set out in certain agreements.
(2) Two hundred and fifty thousand ($250,000) US dollars or the equivalent of four hundred and eighty five thousand and twenty five ($485,025) dollars Eastern Caribbean Currency paid to the first defendant Lawaetz under the terms of the contract.
By way of counterclaim, the first defendant/ respondent Lawaetz claimed damages against the plaintiff/appellants for breach of contract over a purchase agreement whereby the appellants agreed to purchase ninety percent (90%) of the shares beneficially owned by him (Lawaetz) in the second defendant's company, for the sum of two million seven hundred and fifty thousand ($2,750,000) US dollars or the equivalent of five million three hundred and thirty five thousand ($5, 335,000) dollars Eastern Caribbean Currency.
In a judgment delivered by the learned trial judge on February 26, 1980, he dismissed the claim of the appellants against both respondents, and entered judgment for the first defendant/respondent Erik Lawaetz against the plaintiffs on the counterclaim for twenty thousand ($20,000) dollars Eastern Caribbean Currency with costs to be taxed.
From this judgment the plaintiffs duly appealed, and the first defendant/respondent filed a respondent's notice seeking to vary the award of twenty thousand ($20,000) dollars and substituting therefor a higher figure on the ground that the award is so inordinately low, as to amount to a wholly erroneous estimate of the damages.
The whole case turns upon the proper construction to be given to, and the relationship between three instruments namely:
(1) a joint venture agreement dated June 1, 1971 (referred to as the JVA)
(2) an addendum to (1) dated January 25, 1973 (referred to as the addendum)
(3) an agreement to purchase shares dated January 25, 1973 (referred to as the purchase agreement).
As the full force and effect of these instruments in relation to the alleged breaches will have to be considered, it is desirable that attention should be focused upon them right at the outset of this judgment, in particular, the undertakings of the Detroit Group under the JVA will have to be examined in some detail as their failure to perform in respect of many of those undertakings, assumes great importance in the case.
On June 1, 1971, the first defendant Erik J. Lawaetz entered into an agreement called AMEMORANDUM OF UNDERSTANDING and JOINT VENTURE AGREEMENT@ (hereinafter referred to as the JVA) with the first-named plaintiff Michael B. Marcus representing a group of investors who styled themselves as the ADetroit Group.” The purpose of the JVA was recited at the commencement of the agreement in these terms:
“Whereas Lawaetz and Marcus have reached certain understandings in connection with their mutual desire to form a joint venture and exploit the property (that is the property owned by the Grand Anse Beach Co)…”
and it then went on to spell out the terms and conditions of the agreement under five paragraphs headed as follows:
A(I) Representations made by Lawaetz regarding the land to be developed, wherein it was asserted that he owned all the issued and outstanding stock of the Beach Company.
(II) Undertakings of the Detroit Group.
(III) Consideration to be paid to the Detroit Group,.
(IV) Rights of Lawaetz to obtain one million seven hundred and fifty thousand ($1,'750, 000) US dollars prior to any distribution to remaining shareholders of the Beach Company.
(V) Miscellaneous, with the following relevant sub-heads:
Clause 2 – ARBITRATION
Any dispute or controversy, or any breach of agreement is to be determined and settled by arbitration in the City of Detroit Michigan U.S.A.
Clause 3 – ENTIRE AGREEMENT
This agreement embodies the entire agreement and understanding between Lawaetz and the Detroit Group and supercedes all prior agreements and understandings whether written or oral relative to the subject matter hereof. No amendments or modifications of this agreement are to be effective unless in writing and executed by the parties hereto.
Clause 4 –.BINDING EFFECT
All the terms and provisions of this agreement shall be binding upon and ensure to the benefit of and be enforceable by each of the parties hereto…”
As previously stated, it is important to examine the undertakings of the Detroit Group given under paragraph II, with some particularity.
PARAGRAPH II — UNDERTAKINGS OF THE DETROIT GROUP
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(1) Forthwith to engage Vilican-Leman Associates to prepare a functional land use study of the Grand Anse Property including appropriate preliminary detailed plan for the development of the first 100 acres thereof for presentation to the Government of St. Lucia.
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(2) Immediately upon completion of (1) above to present them to the Government of St. Lucia with a view to obtaining their active support and approval and the specific requested commitments.
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(3) After the approvals, and commitments or sufficient of them had been obtained from the Government, the parties were to decide whether or not they were willing to proceed with the project. In any event the...
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