ACTION NO.179

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BEFORE the Honourable Abdulai Conteh, Chief Justice.

Mr. Christopher Coye for the Plaintiffs.
Mr. Dean Barrow S.C. for the Defendant.

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JUDGMENT

1. This action started its life as an Originating Summons but the Court ruled on 5th January 2001 that in view of the issues raised and possible conflict in the affidavits of the parties relating to the Originating Summons, it should proceed as if it were begun by Writ of Summons and that the parties should exchange the usual pleadings.

2. This Order has, in the event, proved enormously helpful to the Court in resolving this matter: between the hammer of the Plaintiffs' Statement of Claim and the anvil of the Defence of the Defendant, the issues in contention between the parties have, as it were, been forged into a more clear relief to enable the Court to proceed.

3. At the hearing finally of this matter on Tuesday 16 October 2001, the Plaintiffs' attorney, Mr. Christopher Coye, sought amendments to their Statement of Claim dated 18 January 2001. He abandoned the following particulars of special damage in paragraph 17 of the Statement of Claim:

i) cost of property enhancement and maintenance in the sum of $5,000.00

ii) Dock in the sum of $500.00

iii) Loan to Casa Caribe - $5,000.00

iv) Shipping and broker expenses in the sum of $10,000.00.

4. Mr. Coye sought to substitute instead the following:

i) consulting expenses incurred in the U.S.A. in relation to the matter in the sum of US$6,500.00

ii) Cost of airplane ticket in the sum of US$507.70

iii) Hotel expenses in the sum of US$247.00

iv) Loss of washer and dryer in the sum of US$1,975.00.

5. Mr. Coye also sought to move the sum of $287,594.62 for money had and received from the particulars of special damage in paragraph 17 of the Statement of Claim to the general prayer for the claims of the Plaintiffs.

6. The total special damage Mr. Coye stated the Plaintiffs were now seeking was US$11,130.23.

7. Mr. Dean Barrow S.C., the attorney for the Defendant had no objection to the amendments sought.

8. In the absence of any objection from the other side, I granted the amendments sought by Mr. Coye. I must state however, that notwithstanding the seemingly indulgent terms of Rule 6 Order 31 of our Supreme Court Rules, that allow an application for leave to amend pleadings to be made to the Court at the trial of the action, it would be more appropriate if the amendments sought were written down and forwarded before the date. This would conduce to clarity. Amendments of pleadings should not, as in this case, be made on the hoof, as it were.

9. The facts of this case can be shortly stated. The First Plaintiff is a Trust of which the second and third Plaintiffs are trustees and sole beneficiaries of the said trust. The Defendant is a company registered in Belize. This Company from the evidence was in the business of dealing with real estate such as condominiums and apartments.

10. By a written agreement dated 15 March 1999 the First Plaintiff and the Defendant then agreed to the sale and purchase of Lot #8 in Building #8 in Unit A in the Casa Caribe Ltd., Subdivision, 6 Miles North of San Pedro Town, in Ambergris Caye. In this agreement Unit #8A is described as a 2 bedroom condominium located on the second floor. This agreement was signed by the Second Plaintiff as buyer and one Richard Devereaux who signed for the Defendant, as seller who was later described in evidence as one of the principal owners of the Defendant company.

11. It was an express term of the agreement that once the buyer had satisfied all obligations of the agreement for sale, the buyer shall be entitled to possession and full enjoyment of the premises.

12. It was also an express term of the agreement that on its execution, the seller shall execute and deliver title to the premises to Rodwell Williams who is described as an escrow agent, and that the title shall be free and clear of all liens and encumbrances; that upon the satisfactory performance of all the terms and conditions of the agreement and/or the Construction Management Agreement if applicable, then the title shall be passed from the escrow agent to the buyer; but in the event of any default and upon written notice to the escrow agent the latter shall return the title to the property to the seller.

The sum of US$140,000.00 was stated in clause B.2 of the agreement to be total purchase price for the realty. By clause B.3 the buyer agreed to pay all closing costs, stamp taxes and alien land tax and to reimburse the seller for all property taxes on the property from the date of the agreement.

13. The agreement went on to state what are called "The considerations and terms of this Agreement." By clause B.8 of the latter, it was provided:

"The time of all payments and time for the completion of all terms of this agreement is of essence."

14. The Second Plaintiff, Lawrence Lee, testified on behalf of the plaintiffs and tendered a number of documents in evidence, including the agreement between the parties marked Exhibit "LL 2". He said in evidence that his obligations were to sign and execute the agreement and to wire the sum of US$142,550.00; and that he fulfilled these on 30 March 1999. This witness further testified that he and his wife, Mary Wyant, the third Plaintiff, took possession of the property in April 1999. He also said however that the Defendant never fulfilled the undertaking to provide the title to the property they had purchased.

15. Mr. Lee further testified that he became increasingly concerned about the failure by the Defendant to provide the title to the property despite requests to do so.

16. Eventually, Mr. Lee said he decided to pursue the matter legally in order to get the title to the property they had purchased. For this he resorted to Maderia Vista Realty in Tucson, Arizona, U.S.A. for advise and counsel as to how he should proceed. On the advice of Maderia Vista Realty he retain Mr. Robert Gugino, an Attorney in Tucson, Arizona, who attempted by letter and telephone calls to reach Mr. Devereaux, to fulfill the term of the agreement about the title to the property. But he failed to respond. Therefore on February 24, 2000, Mr. Gugino sent a notification of rescission of the agreement.

17. Mr. Lee further testified that on the advice of both Mr. Gugino and Maderia Vista Realty he had to obtain the services of counsel in Belize as the property was situate in Belize. Finally, he and his wife had to move to another property and in the absence of the title to the property in Case Caribe they had to vacate. They took most of their effects with them but left behind a washer and dryer they had installed during the time they were in Casa Caribe.

18. Mr. Lee finally testified in evidence in chief that no part of the money paid has been returned. Under cross-examination by Mr. Barrow S.C. for the Defendant, Mr. Lee said that he did not think it was unnecessary for him to have engaged the services of attorneys and consultants in the U.S.A. even though the property they bought from the Defendant was in Belize. He further agreed that no one prevented them from taking the washer and dryer they had bought and installed before moving out.

19. Mr. Lee denied in cross-examination that he was told at the time of purchase that they would get strata title and also denied any knowledge of what strata title was. He also denied having any discussion with Mr. Devereaux about a company called Butterfield Ltd. or being offered shares in that company.

20. At the end of the Plaintiffs' case, Mr. Barrow S.C. informed the Court that there would be no witnesses for the Defendant. He quite properly, in my view, as an officer of this Court, candidly conceded the claim for breach of contract as there was no evidence the other way.

21. In the light of the pleadings and the evidence, I must in the circumstances find for the Plaintiffs on the issue of breach of contract. I find that the Defendant, in breach of the agreement, failed to provide the Plaintiffs with the title to the property in question, even after having been paid in full the purchase price.

22. I find, on the evidence, that the Plaintiffs were forced to rescind the contract as a direct result of the failure of the defendant to provide them with the title to the property at the time expressly stated in the agreement or in the manner therein stated or at all. The suggestion of the learned counsel for the Defendant that there was discussion between the second Plaintiff and Mr. Devereaux of the Defendant company concerning shares in a company called Butterfield as a form of title of ownership of the property in question, does not, in my view, even begin to meet the claim of the Plaintiffs.

They bought property or real estate for which title thereto was expressly warranted to be transferred to them. This was not done. Clearly, the Defendant was in breach. This failure to provide the title to the property at all, even after full payment of the purchase price and repeated requests of the Defendant to do so, induced the fear of uncertainty of their possession or right thereto in the Plaintiffs. This, not surprisingly, forced them to rescind the agreement. This was a direct result of the failure of the Defendant to provide the title to the property.

23. This breach by the Defendant must have caused loss, anxiety and inconvenience to the Plaintiffs. The property, as the second Plaintiff said in evidence, was bought for the use, occupation and enjoyment of himself and the third Plaintiff, his wife. She had fallen in love with Belize on a visit and decided to stay on a more substantive basis, hence the purchase of the property. Both the second and third Plaintiffs expected to reside in the property as their home in Belize, only less so by the second Plaintiff, whose occupation as a professional artist entails retaining a home and a studio in Tucson, Arizona in the U.S.A.

24. The breach has therefore, in my view, occasioned more than a nominal loss `to the Plaintiffs. There is the inconvenience of having to look for another property and the costs of relocation. I think in all the circumstances of this case, the Plaintiffs are entitled to more than just nominal damages for the Defendant's breach of the contract - Jarvis v Swan's Tours (1973) Q.B. 233; Jackson v Horizon Holidays (1975) 1 W.L.R. 1468. I cite these cases only for purposes of illustration that in a proper case, such as the present, damages are recoverable.

25. However, I must refuse the special damages claimed by the plaintiffs. The expenses incurred by the second Plaintiff might have, in his eyes, been necessitated by his quest, legitimate no doubt, to obtain the title to the property. But these expenses were the result of not heeding the Biblical exhortation of casting one's net in the place where one happens to be!

The property was in Belize, the agreement was executed in Belize and the Defendant was in Belize. The Plaintiffs would have been well advised to have recourse to local expertise to pursue their claim. This in fact they ended up doing. Therefore, I will disallow all the expenses claimed under special damages relating to pursuing the title to the property in the U.S.A., including the costs of Mr. Lee's travels and hotel expenses in respect of this. Belize was and remains the proper place of the contract, the proper forum for claims arising out of it and I dare say, with more than enough local expertise to meet the Plaintiffs' case.

26. I am afraid I shall have also to disallow the claim for special damages in respect of the washer and dryer. The evidence is the Plaintiffs bought these and installed them in the property during their occupancy of it. No one prevented them from taking them away when they vacated. They chose to leave them there. I leave aside the issue whether the washer and dryer were fixtures and whether they were so fixed to the property as to become part of it or they were not. This aspect concerning the washer and dryer was never addressed at all. I am prepared to hold however that on the evidence, no one prevented the plaintiffs from removing them.

27. Moreover, apart from the say-so of Mr. Lee in evidence, there is no proof or evidence of these several items catalogued in the Statement of Claim as Special damages. They have just been specified but there is no proof of them. I am therefore unable to allow them.

28. However, I find that the Defendant breached its contract with the plaintiffs by failing to provide them with the title to the property and in fact never deposited the title as it was required to do with Mr. Rodwell Williams, after the execution of the agreement. The Plaintiffs are consequently entitled to a full refund of the purchase price of $287,594.62 paid to the Defendant.

29. I also award the sum of $2,500.00 as damages to the Plaintiffs for the breach of contract by the Defendant.

30. The sum of $287,594.62 shall bear interest at the rate of 5% from the date of the Originating Summons commencing this action until payment.

31. The Defendant shall pay the costs of this action to be taxed if not agreed.

32. In sum, I therefore order that the Defendant do pay the Plaintiffs:

i) The sum of $287,594.62 with interest at the rate of 5% from date of Originating Summons until payment

ii) The sum of $2,500.00 as damages

iii) The costs of this action to be agreed by the parties or taxed.

A. O. CONTEH
Chief Justice

DATED: October 19th, 2001.