Natarcia Louisy v Natalie Biroo
| Jurisdiction | St Lucia |
| Judge | Sandcroft, M. |
| Judgment Date | 30 June 2021 |
| Neutral Citation | LC 2021 HC 13 |
| Docket Number | CLAIM NO. SLUHCV2019/0407 |
| Court | High Court (Saint Lucia) |
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL DIVISION)
CLAIM NO. SLUHCV2019/0407
Qua Administratrix of the Estate of Julian Biroo
Mr. Ramon Raveneau counsel for the Claimant
Defendant unrepresented
Sandcroft, M. [ Ag.]: This is an application for assessment of damages for breach of contract. The Claimant seeks to enforce what is purported to be an agreement for sale between the Claimant and Julian Biroo, now deceased. This document is dated the 2 nd day of June, 2011, wherein Julian Biroo purportedly sold a single lot of land measuring 8,000 square feet and situated at Balata in the quarter of Castries (hereinafter referred to as the property). The deceased, Julian Biroo, had represented that once the survey was done, that he would complete the sale to the Claimant. Said representation was reproduced within the body of the agreement for sale and so she had no reason to doubt the deceased. These terms however were found to be inaccurate as the deceased, Julian Biroo, was later found not to be the owner of the parcels he represented were his to sell and neither was there a completed survey at hand. The Claimant having accepted that there was a breach of contract now seeks damages for the said breach of contract by the late Julian Biroo.
It was also a condition precedent for the completion of the contract and sale that the aforesaid survey be produced and the lot given its own block and parcel number. To date neither the Administratrix herein nor the deceased before her has produced said survey and as far as I am aware the lot is still as yet to be partitioned.
The Claimant filed and served the Statement of case in this matter on the 4 th and 5 th of September 2019 respectively. There was no acknowledgment of Service filed by the Defendant.
On the 4 th October, 2019 the Claimant filed a request for Judgment in default of acknowledgment of service.
The aforementioned request was approved by the High Court office on the 30 th October, 2019 and returned to the Claimant's Counsel for perfection on the 5 th November, 2019 with a notice reading that the terms of the judgment were to be determined in chambers on the 9 th December, 2019 at 9:00 am. This was the notice to the parties of the date of the assessment.
The final perfected order was filed on the 8 th November, 2019 at 3:15 pm.
The Claimant submits, inter alia, that by virtue of an Agreement for Sale dated 2 nd day of June, 2011 the Claimant entered into a contract with the Defendant for the purchase of a single lot of land measuring 8,000 square feet and situated at Balata in the quarter of Castries.
The Claimant further submits that at the execution of the above-mentioned agreement, she paid a deposit in the sum of EC$10,000.00 to the deceased Mr. Julian Biroo.
The Claimant also submits that prior to the execution of the agreement, the deceased represented as follows:
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(i) That he was the registered owner of the property which he was selling;
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(ii) That he was in the process of surveying the property and that said survey would soon be completed;
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(iii) That upon completion of the survey he would complete the sale to the Claimant.
The Claimant avers that the aforementioned representations were pertinent to the contract; without which she would not have entered into the agreement.
The Claimant further avers that the above-mentioned representations were however false as the deceased was not the owner of parcels he purported to sell and neither was there a completed survey at hand. The deceased made these representations either knowing them to be false or not believing them to be true or being reckless or not caring as to whether or not they were true and said representations above mentioned induced the Claimant to enter into the contract.
The Claimant avers that there was no specific completion date stated in the agreement and it was a condition precedent for the completion of the contract and sale that the said survey be produced and the lot given its own block and parcel number. To date neither the Defendant nor the deceased, before her has produced said survey and the lot is still not partitioned.
The Claimant also submits, inter alia, that the failure of the deceased to close the sale within a reasonable time, by letter dated 5 th September, 2016 the Claimant accepted the deceased's repudiatory breach of the contract and made demand for return of her $10,000.00 deposit plus costs.
The Claimant claims damages in the alternative as follows:
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(1) Damages for breach of contract in the amount of $20,000.00 as follows:-
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1. $10,000.00 deposit;
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2. $10,000.00 earnest in accordance with Article 1387 of the Civil Code of Saint Lucia; and
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3. $250.00 the cost of correspondence from legal counsel.
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(2) Interest in accordance with Article 1009A of the Civil Code at the rate of 6% per annum;
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(3) Costs;
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(4) Any or further relief as the Court deems fit.
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(1) Damages for fraudulent misrepresentation to be assessed;
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(2) $250.00 the cost of correspondence from legal counsel;
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(3) Interest in accordance with Article 1009A of the Civil Code at the rate of 6% per annum;
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(4) Costs;
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(5) Any or further relief as the Court deems fit.
The Claimant further avers that for the purpose of the assessment, that she would abandon the alternative claim for fraudulent misrepresentation and focuses on the damages for breach of contract solely.
The Claimant also submits that she is entitled to a return of her $10,000.00 plus a further $10,000.00 as earnest for the defendant's breach of contract.
The Claimant further submits that Article 1387 of the Civil Code states as follows:
1387: If a promise of sale be accompanied by the giving of earnest, each of the contracting parties may recede form it; he or she who has given the earnest, by forfeiting it, and he or she who received it, by returning double the amount.
The Claimant avers that the defendant is to return the amount of $EC20,000.00 which would represent double the amount that she paid to secure the property.
The Claimant further avers that the Real Estate Agreement (page 1) between the parties reads as follows:
“In case of employment of an Attorney to enforce the terms of this agreement, the seller(s) agree to pay the Attorney's fee and all costs of collection.”
The Claimant also avers that to date she has paid the amount of $3,000.00 on account for legal representation in this matter plus the amount of $300.00 for her initial legal consultation and demand letter as agreed, the Claimant submits that she is entitled to recover these costs which were incurred as part of enforcement of the terms of this agreement.
The Claimant finally submits that the amount to which she is entitled in damages is the total sum of TWENTY-THREE THOUSAND THREE HUNDRED DOLLARS ($23,300.00). And that she is also entitled to interest and costs on the sum awarded.
It is trite law that a contract is an agreement giving rise to obligations which are enforced or recognised by law. In common law, there are three basic essentials to the creation of a contract:
The first requisite of a contract is that the parties should have reached agreement. Generally speaking, an agreement is reached when one party makes an offer, which is accepted by another party. In deciding whether the parties have reached agreement, the courts will apply an objective test.
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(i) agreement;
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(ii) consideration; and
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(iii) contractual intention.
There are several legal definitions for a contract but on the facts of this case, the definition that it is a promise or set of promises which the law will enforce, seems the most appropriate 1. Regardless of the definition relied on however, there are three main elements for the creation of a contract whether it is written or oral: an offer, acceptance, consideration and an intention to create legal relations.
In Garvey v Richards [2011] JMCA Civ 16, Harris JA, in discussing when an agreement will be considered to have legal effect, stated at paragraph [10] that:
“It is a well-settled rule that an agreement is not binding as a contract unless it shows an intention by the parties to create a legal relationship. Generally, three basic rules underpin the formation of a contract, namely, an agreement, an intention to enter into the contractual relationship and consideration. For a contract to be valid and enforceable all essential terms governing the relationship of the parties must be incorporated therein. The subject matter must be certain. There must be positive evidence that a contractual obligation, born out of an oral or written agreement, is in existence.”
The general rule is that contracts can be made informally; most contracts can be formed orally, and in some cases, no oral or written communication at all is needed. Thus, an informal exchange of promises can still be as binding and legally valid as a written contract. There are statutory exceptions to this rule. For example: (i) a lease for more than 3 years must be made by deed: Law of Property Act 1925, ss. 52 & 54(2); (ii) most contracts for the sale or disposition of an interest in land must be “made in writing”: Law of Property (Miscellaneous Provisions) Act 1989, s 2; (iii) contracts of guarantee are required to be evidenced in writing: Statute of Frauds, s 4.
The burden of proof is on the Claimant to prove that a contract existed as alleged on a balance of probabilities.
Section 4 of the Statute of Frauds states—
“No action against Executors…upon a special promise, or upon any Agreement, or Contract for Sale of Lands, unless Agreement … be in Writing and signed. No Action...
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