Supreme Court
Action No. 223 of 1997
12th April, 2000.
Shanks, J.

Mr. Denys Barrow, S.C., for the Applicant
Mr. Dons Waithe, for the Respondent

Assessment of damages on frustration of sale of land - Application for damages pursuant to sections 134 of the Land Registration Act

J U D G M E N T

1. I heard on the 6th of April, 2000 a number of applications arising out of judgment I delivered in this matter on 24th January, 2000. Since that judgment Mr. Dons Waithe has replace Mr. Michael Young, S.C. as the Respondent's attorney and on 7th April, 2000 I made an order fixing this hearing and requiring the parties to file affidavit evidence in support of their contentions by 31st March, 2000 and evidence in reply by 4th March, 2000 and to notify each other by 4th April, 2000 if they required any deponent to attend for cross-examination. Neither side gave any such notice and I have dealt with application on the Affidavit evidence before me.

2. The first matter is an assessment of the current value of Lot 325 which the Applicant ought to have been in a position to restore to the Respondent (CFZDL) when the contract was declared by me to be at an end. Mr. Arnold in an Affidavit dated 30th March, 2000 contends for a figure of $88,000 (or $40 per acre) based on the price paid by purchasers of Lots 369 and 370 in January which was $47. per square foot. Mr. Burks, the Plaintiff's agent, swore an Affidavit on 4th April, 2000 stating that Lot 325 was actually sold in August, 1999 for $32,000 and produced a receipt and the auctioneer, Mr. Castillo, swears that Lots 399, 412, 413, 414 and 415 were put up for auction on 3rd April, 2000 and the highest offer received was $20,000. It seems to me that the best evidence of the value of Lot 325 is the price it actually obtained and I can see no reason why the Plaintiff would not have tried to get the best price available. Lots 369 and 370 may for all I know have different features to those of 325. I therefore assess its value at $32,000.

3. I next deal with the Plaintiff's application for damages under s. 134 of the Land Registration Act arising out of the placing of a caution over parcel 353 by CFZDL on 9th September, 1996. Mr. Waithe's first point in relation to this was that CFZDL was not liable under the section because, although in the end it has been found that they had no rights over the land, they placed and maintained the caution because there was a genuine dispute. Section 134 provides that compensation is payable where a caution has been lodged or maintained "wrongfully and without reasonable cause." My understanding of this provision is that it is designed to operate in the same way as an undertaking in damages when an interlocutory injunction is granted; if it turns out that the injunction was wrongly granted, regardless of how reasonable the application, the person obtaining the interlocutory injunction is potentially liable to compensate the person whose activities have been restrained in the meantime. Mr. Waithe did not come equipped with any authority to contradict my understanding and I therefore find CFZDL liable to pay compensation under s. 134. I should say in case I am wrong in thinking that it is sufficient to found liability under the section for the counterclaim by CFZDL to have been rejected that for all the reasons set out in my judgment of 24th January, 2000 I am quite satisfied that the caution was placed without any "reasonable cause", however those words are construed.

4. I turn to the quantum of compensation. Mr. Burks' Affidavit of 31st March, 2000 gives uncontradicted evidence of an offer to purchase the whole of parcel 353 in two sections by Belize Interest Group Ltd made in August, 1998 for a total of U.S. $550,000 subject to the removal of a caution placed on the land by Godfrey Blades which Mr. Burks states the company estimated would have cost less than U.S. $50,000 to have removed. However, the CFZDL caution prevented this deal materializing. In January 2000 the Plaintiff it was able to contract to sell the land for U.S. $400,000 conditional on the CFZDL and Blades cases being dismissed. The Plaintiff therefore claims the loss of U.S. $100,000 capital sum and lost interest of U.S. $84, 200.

5. Mr. Dons Waithe drew my attention to the fact that the caution was formally lifted on 15th October,1998 after the initial judgment on the originating summons which was appealed and implied that CFZDL were not preventing any sale by the Plaintiff after that date. This point, contained in an Affidavit of Michael Arnold sworn on the 6th April, 2000, not surprisingly took Mr. Barrow somewhat by surprise. Having learnt a little more of the procedural history and been referred to a letter from Mr. Arnold to the Commissioner of Lands and Surveys of 16th December, 1998 and a letter from the Registrar General of the Supreme Court to the Lands Registry dated 9th December, 1998 I am satisfied that CFZDL took all steps they could as soon as the caution had been lifted and their appeal had been instituted to prevent any dealings with the land by the Plaintiff, and that they were successful in so doing. In my judgment, in view of this it simply does not lie in their mouths to rely on the fact that the caution was not formally reinstated when everyone proceeded on the basis that it was in effect and I therefore treat their application for all purposes (if it make any difference on the facts) as if the caution remained in place until my judgment in January 2000.

6. Mr. Dons Waithe also stated that there was nothing to substantiate who Belize Interest Group Ltd were or that they had assets to purchase the land (although it appeared they were in fact Mr. Waithe's clients) and challenged the statement that Godfrey Blades could be bought off for $50,000. These points may or may not have some validity but there was no evidence put in answer to Mr. Burks' and no notice given to cross-examine him and I therefore proceed on the basis of his evidence. On that basis, I award the Plaintiff damages of $184,200 under s. 134.

7. In my judgment of 24th January, 2000 I ordered that the Plaintiff repay the advance of U.S.$86,000 paid by CFZDL for the land. I failed to award any interest on this sum. Mr. Barrow raised no formal objection to me reviewing this matter at this stage but he said it was inappropriate for me to award interest since it was CFZDL who had caused the delay in resolving matters by opposing the Plaintiff's originating summons. I see some force in that but, equally, the plaintiff has had the use of the money for nearly four years when it ought to have been refunded at the moment of rescission. I think that fairness dictates that they pay interest at 10% for three and three quarter years, giving a total sum to be repaid of U.S.$86,000 + U.S.$31,533 = U.S.$117,533, of BZE$235,066.

8. The net financial position between the parties is therefore that the Plaintiff now owes CFZDL $82,866 BZE ($235,066 + $32,000 - $184,200). On Mr. Waithe's undertaking that any cautions placed by CFZDL will be removed immediately on payment of that sum of $82,866, I will make no order on Mr. Barrow's summons dated 4th April, 2000 seeking removal of those cautions.

----------OO----------