IN THE HIGH COURT OF JUSTICE BETWEEN ANTOINETTE ALLEYNE AND THE TRINIDAD AND TOBAGO HOUSING DEVELOPMENT CORPORATION

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1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. CV BETWEEN ANTOINETTE ALLEYNE Claimant AND THE TRINIDAD AND TOBAGO HOUSING DEVELOPMENT CORPORATION Defendant BEFORE THE HONOURABLE MR. JUSTICE ROBIN N. MOHAMMED APPEARANCES: Mr. Stanley Marcus S.C. for the Claimant instructed by Ms. Dixie-Ann Toby Ms. Deborah Peake S.C. and Mr. Kerwyn Garcia for the Defendant instructed by Ms. Glenda Edwards JUDGMENT ON THE PRELIMINARY POINT OF LIMITATION Introduction, Application and Procedural History 1. By way of claim form and statement of case filed on the 6 th day of June, 2014, the claimant seeks relief against the defendant as follows: a. Damages for breach of a written agreement dated the 30 th day of October, 2007 with the claimant as purchaser and the defendant as vendor for a Single Dwelling Unit; b. Damages for disappointment, inconvenience and discomfort;

2 c. Interest; d. Costs; e. Any further or other relief as may appear to the Court fit and just. 2. The defendant filed its appearance on 16 June 2014, and its defence and counterclaim on 9 July An amended defence was filed without leave on 22 September The claimant responded with a reply and defence to counterclaim on 16 October 2014, and then an amended reply and defence to counterclaim on 26 November The defendant filed its written submissions on 31 October 2014 and the claimant filed her own on 26 November The matter was heard on Thursday, 8 th January 2015 and on Thursday, 30 th April, 2015, with the defendant and the claimant giving their oral submissions on each of these dates, respectively. The claimant later filed supplemental submissions on 1 June 2015, to which the defendant replied on 12 June Preliminary Issue The preliminary issue to be determined is whether the instant action has been barred by section 3(1) (a) of the Limitation of Certain Actions Act, Chap 7:09 1. The factual background of the case will, however, aid in providing context to the matter at hand. Background Claimant s case 4. It is the claimant s case that the parties made a written agreement on 20 October 2007 for the defendant to construct and sell to the claimant a 3 bedroom, 2 bathroom, elevated Single Dwelling Unit on a parcel of land situate at No. 47 Sam Boucaud Gardens, Santa Cruz Housing Development in the Island of Trinidad ( Lot #47 ) for the sum of $198, The claimant paid and the defendant accepted a deposit of $16, The agreement stipulated that completion (payment of the balance of the purchase price and execution of a Deed of Lease) take place 90 days from the date 1 Section 3(1) provides: The following actions shall not be brought after the expiry of four years from the date on which the cause of action accrued, that is to say: (a) actions founded on contract (other than a contract made by deed) on quasi-contract or in tort Page 2 of 22

3 of the contract, or 30 days after the defendant serves the claimant with notice to complete. The agreement also entitled the claimant to be refunded of any monies paid by her under the agreement. 5. At the time that the agreement was made, the claimant occupied another house that was managed by the defendant at Lot No. 67 Sam Boucaud Gardens, Santa Cruz ( Lot #67 ) and continued living there well past the completion date as construction at Lot #47 was not yet complete. Upon the defendant s request, however, first by letter dated 22 September 2008, and then after an extension of said request by letter dated 23 September 2008, the claimant vacated Lot #67 in December 2009 and began living in rented accommodation at her expense. This was anticipated to only be for a temporary period of time until the defendant s work on Lot #47 was complete. 6. The defendant certified the claimant as owner of Lot #47 on 18 January 2010, and directed the claimant to make any necessary arrangements so as to effect occupation of the premises when it was completed. The claimant engaged in financial expense to do so, buying items such as wood, locks, carpet, moulding, a chair, varnish and the like. Receipts of such items are annexed to the claimant s statement of case. 7. In April 2010, the claimant was informed by the defendant that Lot #47 was in fact assigned to a Dave Francis for 30 years from the year 1989 by way of registered Deed, and as such the claimant would be unable to enter occupation or possession of the premises. A true copy of said Deed was annexed to the claimant s statement of case. 8. The claimant is consequently still living in rental accommodation at her own expense, while the defendant has failed to either deliver Lot #47 to her, or to provide her with alternative accommodation. 9. The claimant, by way of a pre-action protocol letter dated 5 October 2012, claimed financial loss and damages for the breach of the 2007 agreement. On 16 April 2013, the defendant wrote to the claimant with the seeming intention of settling by way of alternative housing or a refund. No such settlement was however offered. Page 3 of 22

4 Defendant s Case 10. The primary point raised by the defendant is that the claimant s cause of action is statute-barred pursuant to section 3(1)(a) of the Limitation of Certain Actions Act Chap 7:09, in that it has been brought after four years from the accrual of the cause of action. 11. Without prejudice to the above plea, the defendant s version of the material events leading to the present cause of action is as follows. The Back Story 12. The defendant did contract with the claimant on 30 October 2007 to sell her a single dwelling unit on Lot #47. Before this agreement, however, the defendant avers that by Deed No of 1989, the claimant first possessed a 30 year lease dated 5 June 1989 for state lands situate at Lot #67 ( The 1989 Deed ). The claimant assigned the residue of her lease to Renison McPherson on 15 October 1991 by Deed No of 1991, who in turn mortgaged Lot #67 to Eastern Credit Union Cooperative Society Limited by Deed No of 1991 on the same date. Renison McPherson later reconveyed all rights, title and interest in Lot #67 to the claimant on 21 November 2003 by Deed No. DE D Lot #67 was part of a larger parcel of land which comprised the Sam Boucaud Gardens Housing Development in Santa Cruz ( Sam Boucaud Housing Development ). Terms of the lease for a lot in the Sam Boucaud Housing Development included a requirement to build a dwelling house thereon within a specific time. The claimant breached clause 3(3) of her lease in her first tenure as lease owner by failing to build such within two years from the date of the 1989 lease. By the time that Lot #67 was re-conveyed to the claimant in 2003, the Sam Boucaud Housing Development was owned by the defendant s predecessor, the National Housing Authority ( The NHA ). The NHA had a programme which allowed persons who had breached their lease, like the claimant, to secure construction of such dwelling homes by the NHA. The claimant elected to participate and consequently signed a consent form dated 22 October Page 4 of 22

5 14. The defendant noted that the NHA wrote to the claimant asking her to remove an access road that was constructed on Lot #67 by the claimant s permission/consent at her own expense. After this, the NHA built the dwelling house at Lot #67, despite its offer, which went unaccepted, to relocate the claimant to alternative accommodation. 15. From 13 September 2005 the NHA s rights and obligations under the concurrent lease vested in the defendant pursuant to section 41 of the Trinidad and Tobago Housing Development Corporation Act, Chap 33:03. The claimant on 4 January 2007 requested a surrender of the remaining years of the lease so as to obtain a 199 year lease for mortgage purposes. The claimant surrendered the unexpired residue on 1 May 2007 by Deed No. DE D001, and was granted by the defendant a 199 year lease of Lot #67 on the same date by Deed No. DE D The parties then made an agreement on 9 March 2007 for the defendant to construct a 3 bedroom, 2 bathroom elevated single dwelling unit on Lot #67 for the sum of $198, to be paid by the claimant. A deposit of $9, was also to be paid by the claimant, after which she would pay the sum of $188, in monthly instalments of $1, The said monthly instalments were confirmed by way of promissory note dated 9 March The claimant received the keys to the completed dwelling house in March 2007, thereafter occupying and possessing Lot #67 from said date to present. 17. In October 2007, the claimant requested that the defendant sell a second parcel of land from the Sam Boucaud Housing Development to the claimant, with a house constructed thereon. The defendant consequently agreed to sell the claimant a 3 bedroom, 2 bathroom, elevated single dwelling unit known as Lot #47, Sam Boucaud, Santa Cruz Housing Development in an agreement of sale dated 30 October 2007 ( The Lot #47 Agreement ). The said agreement is the same agreement to purchase Lot #47 which has been used by the claimant to support her present cause of action. The Lot #67 and #47 Agreements 18. The defendant s point of contention is that while the Lot #47 Agreement did entail a deposit of $16, to be paid to the defendant, this sum was never delivered by the claimant. The defendant contends that what the claimant alleges to be the receipt for the said deposit, which she has annexed to her statement of case, is in fact a copy of a Page 5 of 22

6 manager s cheque dated June 29, 2005 for the sum of $17,942.75, drawn for the NHA for its construction of the dwelling house on Lot #67. This sum was requested by the defendant by letter to the claimant dated 17 June 2005, annexed by the defendant to its defence as L. The receipts showing payments for $1, were paid in accordance with the 2007 promissory note for construction of Lot #67. In short, the sums paid by the claimant to the defendant were all in relation to Lot #67, not Lot # The defendant further contends that the claimant has never vacated Lot #67, and in fact still lives there today. It was stated that while it did write the claimant on 22 September 2008 asking her to vacate Lot #67, this was as the claimant was not entitled to occupy two parcels of land at the same time (Lot #67 and Lot #47). The defendant contends, however, that the claimant did not leave, but on 15 October 2008 requested an extension of time until December The defendant, in a letter dated 23 October 2008, allowed the claimant an extension until such a time as the work on Lot #47 was completed, which was slated to be by the middle of November (It is noted that the letter annexed to the claimant s statement of case alleging to speak to the same matter and in almost exactly the same wording is dated 23 September 2008, despite referring to the claimant s letter sent on 15 October 2008). The claimant, however, has never left. It is consequently also denied that the claimant has been put to expense by having been made to pay for rented accommodation, as it is maintained that she still resides at Lot # The defendant admits to both the 18 January 2010 letter confirming the claimant s ownership of Lot #47, as well as the consequent letter in April 2010 informing the claimant that Lot #47 was in fact subject to a lease owned by a third party, a Mr. Dave Francois, and that as such the sale could no longer be completed. It denies, however, that the claimant was put to any expense in preparing to reside at Lot #47. It is contended that if any expenditure was incurred by the claimant, that this was premature and at her own risk, as firstly, she was never put into actual possession of Lot #47 and secondly, she never paid the purchase price for it. It is denied, therefore, that any other financial losses or damages are owed to the claimant. Page 6 of 22

7 21. Regarding the claimant s claim for alternative accommodation as an alternative to delivery of Lot #47, the defendant avers that it is under no obligation to offer alternative accommodation. It claims that pursuant to clause 6 of the Lot #47 Agreement, the claimant is entitled only to a refund of all monies paid regarding the transaction, and no other remedy, should the defendant be unable to complete the transaction on the completion date. As it stands, the defendant s position is that the claimant made no payments regarding Lot #47 and as such is not entitled to a refund of any money. In addition to this, the defendant maintains that the claim is statutebarred, and as such a refund is no longer applicable. Consequently, the defendant avers that the claimant is not entitled to any of the relief sought (financial loss and damages). 22. It is claimed further or in the alternative that the defendant is entitled to set off its counterclaim as laid out below against the claimant s claim so as to lead to the extinction or diminution of said claim. Defendant s Counterclaim 23. The defendant in addition to its defence also made a counterclaim against the claimant. It maintains that the claimant owes it $174, as remaining payment for the construction of the dwelling house at Lot #67 as evidenced by the promissory note dated 9 March 2007 wherein the claimant agreed to pay $188, by monthly instalments of $1, The promissory note speaks to interest at the rate of %. Further, that notwithstanding this outstanding payment, the claimant has and continues to live at Lot # The defendant seeks to set off this sum against the claimant s claim in extinction or diminution thereof. 25. The defendant accordingly counterclaims for: a. Payment of the sum of $174,937.01; b. Interest thereon at the rate of %; c. Alternatively, damages for breach of the said agreement; d. Costs; e. Such further or other relief as to this Honourable Court may seem just. Page 7 of 22

8 Claimant s Reply and Defence to Counterclaim 26. The claimant firstly denies that the claim is statute-barred by section 3(1)(a) of the Limitation Act as aforesaid. Her reasoning is that in contravention to the Lot #47 Agreement, the defendant did not complete the transfer of property in 30 days nor did it serve a notice to complete. Further, that between May to June 2010 the defendant s Allocations Manager, Wendy Patterson, offered alternative accommodation to the claimant in another of the defendant s housing developments in East Grove, Valsayn. This was, however, never finalized. 27. The claimant further contends that a compromise was made concerning Lots #47 and #67 between the claimant and the defendant s predecessor, the National Housing Authority (NHA). The compromise stated that all monies paid by the claimant towards the purchase of Lot #67 would be credited and transferred to the claimant s purchase of Lot #47 instead. Further, that any obligations regarding the Lot #67 transaction would cease and no longer be enforceable. The claimant maintains that this compromise also stated that occupation of Lot #67 was temporary, with no financial obligation on her part. The claimant consequently contends that the defendant s claim as it relates to finances outstanding are irrelevant and immaterial. 28. The claimant further denied allowing an access road to be constructed on Lot #67, and averred that the accommodation initially offered in the alternative to this was in Malabar, which was below the housing standard of Sam Boucaud Gardens. 29. Regarding financial expenditure made by the claimant in advance, she claimed that she applied for mortgage financing in 2010 as advised by the NHA so as to complete the transaction. The claimant further states that she was under no obligation to pay the purchase price of Lot #47 without the property being completed and conveyed to her. As it was not made available to her, she was under no obligation to pay the said purchase price. In light of this and of the compromise regarding Lots #47 and #67, the claimant maintains that she owes nothing to the defendant, but that her claim for damages against the defendant can be sustained. The Limitation Period 30. As aforementioned, the primary issue to be determined is whether the present claim is statute barred. Should this issue be answered in the affirmative, the claimant s cause Page 8 of 22

9 of action will fail. The court made an order dated 23 September 2014 which directed the parties to file written submissions on whether the claim is statute-barred, as well as whether permission can be granted for time to be extended for filing of the said claim, both issues being pursuant to the Limitation of Certain Actions Act Chapter 7:09 ( The Limitation Act ). This order was made on the basis of an application of the claimant dated 22 September 2014 which was consequently withdrawn on the 22 January It was, however, also made on the basis of paragraph 1 of the amended defence, wherein the defendant alleged that the present claim is statute-barred. Both parties accordingly filed written and gave oral submissions on the preliminary issue of limitation. These submissions are as follows. Sub-issues and Submissions Whether there has been a breach of contract 31. Counsel for the claimant submitted that if Clause 3 of the Lot #47 Agreement were to be properly construed, it would be understood to mean that there was an initial completion date of 90 days, with an alternative completion date of 30 days after service by the defendant. The claimant submitted that although the 90-day period has long passed, the 30-day period has not yet begun to run as the defendant has not yet served notice to the claimant as required by the said Clause 3. Consequently, the completion date has yet to be determined. 32. In her Reply and Defence to Counterclaim, the claimant rejected the applicability of section 3(1)(a) of the Limitation Act to her claim. Her arguments were, firstly, that the defendant did not complete the transfer of property within 90 days or serve notice to complete, and secondly that the claimant was given an offer of alternative housing in another development, which never materialised. The defendant, however, submits that these arguments provide no real answer to section 3(1)(a). Further, that if the claimant is contending that the completion date has not yet been determined and hence there has been no breach of the agreement, then there is no cause of action and that the claim should consequently be dismissed. 33. It was the defendant s case that the pleadings of each party clearly show that there was a breach of contract on the part of the defendant. The defendant referred to Page 9 of 22

10 paragraph 1 of the claimant s claim form, which introduces the claim as damages for breach of a written agreement [emphasis added]. Paragraphs 12, 15 and 16 of the claimant s statement of case were also referred to, as a breach of an agreement as the cause of action was also pleaded therein by the claimant. 34. Counsel for the defendant referred to the facts so as to support these allegations made by the claimant that there was in fact a breach of contract made on the part of the defendant. The defendant was unable to complete the agreement in 90 days, in contravention to Clause 3 of the Lot #47 Agreement, and was neither able to show good marketable title nor was it able to execute a Deed of Lease for Lot #47 for the claimant as agreed therein. While the defendant could have extended the completion date by service of notice under Clause 3, this was never done. When allegedly was the contract breached? Whether the pending Notice of the Defendant prevents breach of contract? 35. The claimant referred to the case of CLICO Investment Bank Ltd v Computer and Control Ltd Civ where a moneylender neglected to give notice to the borrower as it related to the lender being able to exercise a certain option of the contract. The court in that case held that as express notice was not given, time had not run for purposes of limitation. What is derived from this case by the claimant is that where notice (for an option) is required to start time regarding limitation periods, if such notice is not given, then time does not run and a claim based on such a contract will not be statute-barred. 36. The defendant submitted that the Clico case turned on its facts as it concerned an option for early payment which was not exercised, and so it was determined that time did not run from the date when the option could have been exercised. Counsel notes that the case does not say that time could not run, or that the claim could not be statute-barred. In that case, the learned Judge held that time was not accelerated. Further, in that case the claim was not statute-barred as it was brought within the four years from the date of the breach. 37. The defendant submitted that the breach of contract occurred when the defendant failed to complete the agreement on 30 January Alternatively, or at the latest, Page 10 of 22

11 the breach of contract from which the claimant s cause of action would have arisen would have occurred in April 2010 when the claimant discovered that the defendant was unable to complete as a result of the third party ownership of Lot # Counsel for the defendant referred to the case of Woods and ors v Mackenzie Hill Ltd [1975] 1 WLR 613, wherein it was held that there is a contractual obligation to complete either on the date fixed for completion or within a reasonable time, notwithstanding an express provision for service of notice. Megarry J dismissed the argument made therein that a contract could go for years without being breached for lack of completion once the notice for completion has not yet been served. He stated at page 615 H inter alia: I wholly reject any notion that the contractual completion date has lost its potency and that the service of a completion notice is now a prerequisite to the enforcement of any contract which contains provisions enabling such notice to be served. Do the Defendant s offers of alternative accommodation affect a breach of contract? 39. Counsel for the claimant concludes that in this case, as agents of the defendant (Allocations Manager Wendy Patterson) sought to offer alternative accommodation to the claimant in the period of May to June 2010, the parties to the matter have not repudiated the agreement and in fact have treated it as if it were subsisting. Accordingly, time has not yet begun to run. 40. In her Reply and Defence to Counterclaim, as seen above, the claimant rejected the applicability of section 3(1)(a) of the Limitation Act to her claim. Her arguments were firstly that the defendant did not complete the transfer of property within 90 days or serve notice to complete, and secondly that the claimant was given an offer of alternative housing in another development, which never materialised. As such, the parties treated the agreement as subsisting. The defendant submits that these arguments provide no real answer to section 3(1)(a), and further that conduct of the parties subsequent to an event is not what determines whether a contract has been breached or not. Counsel for the defendant further contends that contrary to what was Page 11 of 22

12 alleged by the claimant, there was no agreement or compromise made to vary the agreement on Lot #67 to substitute another property, Lot #47, in its place. The Third Party ownership of Lot # As aforementioned, it was soon discovered that the transfer could not be completed as a third party, Dave Francois, held an assignment of Lot #47 for a period of 30 years from 1 August As such, the defendant was unable to transfer the property to the claimant. The defendant, as stated in the claimant s pleadings, informed the claimant of such inability to complete the transfer in or around April The defendant then fully admits to breaching the contract made between the parties on 20 October Whether the cause of action accrues from the breach of contract? 42. Counsel for the defendant laid out each basic step in ascertaining whether and when a cause of action that is founded on contract has accrued. Counsel cited the case of Letang v Cooper [1965] QB 232 in which Diplock LJ stated that a cause of action is a factual situation which allows one party to obtain a remedy against the other. Counsel also referred to the case of Cooke v Gill (1873) LR 8 CP 107 wherein Brett J observed at page 116 that a cause of action accrues when every fact which is material [has been] proved to entitle the plaintiff to succeed. In the case of Nykredit Mortgage Bank plc v Edward Erdman Group Ltd (No 2) [1998] 1 All ER 305 (HL) Lord Nicholls stated that, as every law student knows, the cause of action accrues at the date of the breach. This principle of accrual beginning from the breach of contract was also supported by Limitation Periods, Andrew McGee, 2 nd edition, page 165 and Volume 68 Halsbury s Laws of England, (2008) 4 th edition, para 958, as submitted by counsel for the defendant. Whether the limitation period has expired? 43. The defendant submitted that in light of the claimant s knowledge of the third party ownership since April 2010, the claimant knew about the defendant s breach of contract more than 4 years before the filing of the present claim on 6 June Section 3(1)(a) of the Limitation Act states that actions founded on contract shall not be brought after the expiry of four years. Consequently, the defendant submits that Page 12 of 22

13 the claim is statute-barred as the cause of action a breach of contract - has accrued and the claim was initiated after four years have expired. Whether the limitation period can be extended? 44. The claimant made the argument that years after the breach of contract elapsed, the parties continued to discuss and negotiate potential settlement of the claim. Counsel submitted that this negotiation period should extend the limitation period as it should be excluded from the limitation period altogether. Counsel relied upon the case of L-3 Communication Spar Aerospace Limited v CAE Inc., 2010 ONSC 7133, Court file No.: as well as its approval at the Ontario Court of Appeal. The parties in that matter took part in ongoing discussions before the applicant requested arbitration, which was their agreed dispute resolution mechanism as per a written agreement between them. The respondent contended that such an application was by that time statute-barred. The Court held that the limitation period for arbitration did not begin to run until the parties failed to reach an agreement. 45. It is consequently the submission of the claimant that as discussions including the preaction protocol were sent within the limitation period, that such discussions should serve to extend the said period as the claimant contends took place in L-3 Communication Spar Aerospace Limited (supra). 46. The submission of the defendant in response to this is that the claimant has provided the Court with contradictory arguments. Counsel contended that the claimant has argued that there was no statute-barring of the claim in light of the agreement having never been repudiated, but is now arguing also that there is a limitation period in relation to the termination of the agreement, but that such period has been extended due to the consequent interactions had between the parties. The defendant submitted that both arguments are wrong. Regardless of interactions or alleged considered obligations, it was submitted by the defendant that the legal question of the limitation period would still remain to be addressed. 47. Counsel for the defendant referred to the case relied on by the claimant, L-3 Communication SPAR Aerospace Ltd (supra). Counsel observed that case law was not even considered in this matter, as the focus was instead placed on contractual Page 13 of 22

14 interpretation. It was submitted that this case was clearly concerned with contractual interpretation as opposed to the law on limitation periods, and as such cannot be applicable to the Limitation Act of Trinidad and Tobago. It is further submitted that the case cannot even be used as an authority for an extension of time of a limitation period, and as such cannot be cited as authority for the proposition made by the claimant. 48. The defendant further contends that the pre-action protocol letter sent by the claimant was not in fact sent within the limitation period as she claimed. The letter dated 5 October 2012 was sent when the claim was already statute-barred, being written more than four years after January (the 90 day mark whereupon the Lot #47 Agreement was to be completed). Consequently, even the discussions attested to being sufficient to extend the period of limitation are in and of themselves barred and cannot be of any assistance to the claimant. Analyses and Findings Whether there has been a breach of contract? 49. In the case of Peak Petroleum Trinidad Limited v Primera Oil and Gas Limited; Primera East Brighton Limited; Primera Oilfield Management Services Limited HC 2039/2011 Madam Justice Jones stated at paragraph 91 of her judgment: The question of when a breach of a contract occurs is an issue of fact to be determined by the Court in the light of the surrounding circumstances. It is therefore to be determined by the Court as to when the breach of contract dated 20 October 2007 occurred. When was the contract breached? 50. An issue that has to be answered in the course of determining whether a breach occurred is the issue of when did the breach occur. The Court finds that the agreement between the claimant and defendant was terminated when the time for completion, as stipulated by the Lot #47 Agreement, passed. The said Agreement stated that the Page 14 of 22

15 transfer would be made complete by either the passing of 90 days or by service by the defendant of a notice to complete on the claimant. Neither of these instances occurred. Whether the pending notice of the defendant prevents breach of contract? 51. Despite the claimant s argument that the alternative measure of the defendant s service never occurred, which resulted in the completion date never having passed, as was rightfully noted by the defendant, any notice being delivered by the defendant must have been done by a reasonable time. A reasonable time was defined in the case of Charles Rickards Ltd v Oppenhaim [1950] 1 KB 616 as:...in a contract where such a notice can be given, the notice must be given for a reasonable time during which the seller can complete; i.e., it must be such time as will be practicable, that is, will afford him the opportunity to complete: he must be afforded the requisite time to enable him to do so. 52. The Court thinks it safe to say that the defendant had ample reasonable time to give notice for completion. Clearly it is unreasonable at this time, more than four years later by the date of the claim, to contend that notice may yet be served and as such the contract has not been terminated. 53. Further, even if notice had yet to be given and therefore could still be given by the defendant, as the claimant contends, Chitty on Contracts (supra) states that notice, or even eventual completion of a contract, does not waive the previous breach of contract that took place upon the initial failure to complete at the due date. Chitty referred to the case of Raineri v Miles [1981] AC 1050, in support. The initial or original breach of contract therefore took place when 90 days from 20 October 2007 elapsed. 54. Furthermore, even if the defendant were to give notice, this would not suffice to extend the lifetime of the contract. Chitty on Contracts (supra) referred to a Trinidadian case that went to the Privy Council, Mahase v Ramlal [2003] UKPC 12 at 28, in which Sir Martin Nourse stated: Page 15 of 22

16 [28] The related but distinct ground is that the party serving the notice purporting to make time of the essence must himself be ready, able and willing to complete at the date when the notice is served. This is an express requirement of the conditions commonly incorporated in contracts for the sale of land in this country, but it does no more than express what would in any event be implied by law; see Halsbury's Laws of England, 4th edition, vol 42 (1999 reissue), para 121, note 7 and the cases there cited. It is evident that the requirement cannot be satisfied where the party serving the notice is himself in default. (Emphasis mine) 55. While Mahase dealt with notice making time of the essence, the relevance of the principle is that notice by a defaulting party bears little to no impact as the said party has no authority with which to request completion. As such, as the defendant was not and never would have been in a position to complete by the time that such notice should have been given (i.e. after the original date of completion had passed), any notice that it would have given would have borne no consequence. Do the Defendant s offers of alternative accommodation affect a breach of contract? 56. In like mind therefore the Court also states that the defendant s offers of alternative accommodation that took place up to 2013 do not affect the breach of contract that already took place. The third party ownership of Lot # The Court further observes that even if notice was served upon the claimant, or even if, to go a step further, the claimant did in fact complete her payment pursuant to the agreement, the fact remains that in light of the third party ownership, made known to both parties by April 2010, the agreement could never have been fulfilled. The defendant would never have been able to carry out its requirement to transfer Lot #47 to the claimant, as it would have no legal right nor capacity to do so. 58. Although Dave Francis ownership was only discovered in April 2010, the ownership itself existed since 1989 as stated in Dave Francis deed. Even before the contract Page 16 of 22

17 took place, therefore, ownership of Lot #47 was already lawfully in the hands of another. This meant that the contract dated 20 October 2007 was premised on a common mistake. 59. A common mistake as defined by Chitty on Contracts (supra) paragraph is when:...the parties are agreed on the terms of the contract but have entered it under a shared and fundamental misapprehension as to the facts or the law. Both parties in this case believed that Lot #47 could have been rightfully transferred from the defendant to the claimant. However, the fact of the matter was that the defendant did not have legal ownership of the land and therefore could not have legally transferred same to the claimant. 60. The effect of a common mistake, once effective, is for the contract to be made void ab initio. This is encapsulated in the locus classicus of Bell v Lever Bros Ltd [1932] AC 161, 217. It seems therefore that regardless of whether the limitation period has expired or not, the contract would have been made null and void. Whether the cause of action accrues from the breach of the contract? 61. This Court further finds that, pursuant to the general tenets of common law, that the cause of action in a contract matter does accrue from the breach of the contract. Chitty on Contracts 32 nd edition Vol 1 paragraph states: The general rule in contract is that the cause of action accrues, not when the damage is suffered, but when the breach takes place. Many of the cases cited in support of this principle reflect its longevity, namely, the case of Gould v Johnson (1702) 2 Salk This principle continues to be followed today, as for example in the case of Peak Petroleum Trinidad Limited v Primera Oil and Gas Limited; Primera East Page 17 of 22

18 Brighton Limited; Primera Oilfield Management Services Limited (supra) in which her Ladyship Justice Jones stated also at paragraph 91: It is trite law that with respect to contracts time begins to run or the cause of action accrues as soon as there is a breach of the contract. Time then began to run in this matter 90 days from the 20 October 2007 (the original completion date). Also, time began to run in this matter in April 2010 when the contract was found impossible to complete. Whether the limitation period has expired 63. The limitation period, as stipulated by the Limitation Act at section 3(1)(a) for contracts, is four years. A party cannot come before the Court with an application concerning a cause of action dated after four years. As stated, the Lot #47 Agreement was breached at latest by April The claim form and statement of case were filed on 6 June 2014, a month and a few days over four years later. It appears clear to this Court that the limitation period was therefore expired by the time of filing and so once there is objection taken by the defendant that the cause of action is statute-barred the claim is prevented from being heard before the Court unless for some justifiable reason the Court grants permission for the claim to proceed notwithstanding the limitation period having expired. Whether in this case the limitation period can be extended 64. It is to be noted that the claimant, by Notice of Application filed on the 22 September 2014 (amended on the 23 September 2104 as endorsed by the Court), had applied for, inter alia: (1) a direction under section 9 of the Limitation Act that the provisions of section 5 of the said Act shall not apply to this action and that this action be allowed to proceed; and (2) the limitation period for the commencement of this claim be extended to the date of filing the claim herein. 65. It seems clear that this application was prompted by paragraph 1 of the defendant s defence filed on 9 July 2014 which raised the issue of limitation pursuant to section 3(1)(a) of the Limitation Act as a defence to the claim. By this application it appeared as though the claimant was conceding that the Limitation Act was applicable and that Page 18 of 22

19 the claim was statute-barred since the application was effectively for an order that the limitation period for the commencement of this claim be extended to the date of the filing of this claim. The said issue of limitation was again raised by Ms. Peake, Senior Counsel for the defendant, as a preliminary point at the first case management conference held on 23 September 2104, whereupon directions were given for the filing of written submissions by both parties on the question as to whether the claim is statute-barred or whether permission can be granted for time to be extended for the filing of the claim, pursuant to, in both cases, the Limitation of Certain Actions Act Chap. 7: The Defendant filed its written submissions with authorities on the 31 October 2014 as directed but the claimant filed her submissions with authorities on the 26 November 2014 after seeking an extension of time to do so. 67. The effect of the defendant s submissions on the preliminary point was that sections 5, 6 and 9 (the relevant sections) of the Limitation Act were not applicable to this claim and so there was no justification for the Court granting an extension for the claim to proceed. Counsel for the defendant argued that section 5 applies to actions for damages for negligence, nuisance or breach of duty where the damages claimed consist of or include damages in respect of personal injuries. It was contended that this claim is not one for damages for negligence, nuisance or breach of duty on the part of the defendant, but an action for breach of contract and that the damages sought are not in respect of any personal injuries arising therefrom. 68. It was further submitted that section 6 of the Act deals with actions under the Compensation for Injuries Act, and therefore has no applicability to this claim. Further, since section 9 is premised upon the applicability of sections 5 and 6 aforesaid, then section 9 also has no application to this claim. 69. The claimant s submissions, however, deviated from the relief sought in the amended application of the 22 September 2014 in that the claimant was no longer conceding that the claim was subject to the Limitation Act. The claimant was therefore no longer seeking to justify its application to extend the limitation period for the claim to proceed but instead argued that since no notice was served on the claimant by the Page 19 of 22

20 defendant pursuant to clause 3 of the agreement, then the completion date for the contract had not yet been determined. 70. Consequently, at the hearing of a case management conference on the 8 January 2015, Mr. Marcus, S.C., sought leave of the Court to withdraw the claimant s amended Notice of Application filed on 22 September 2014 and to file further written submissions on the question as to whether the limitation period had at all expired. This being the case, any decision on the question raised in the said application for extending the limitation period is now rendered otiose. However, having considered the law on the issue and the submissions made, I wish to express, by way of obiter dictum, that I am in agreement with the interpretation of the law (sections 5, 6 and 9 of the Limitation Act) as submitted by counsel for the defendant in relation to the question posed in the withdrawn application. 71. By the supplemental submissions filed, the claimant submitted that because of further negotiations that took place after the breach of the agreement, pursuant to the decision in L-3 Communication SPAR Aerospace Ltd (supra), such negotiation periods can serve to extend the statutory limitation period of 4 years. The case law cited in an attempt to support this point concerned interpretation of a contract between two parties, not legislation. The case, as observed by the defendant, was not premised on any common law, being as it were, focused on the interpretation of the contract. Further, the case did not concern an extension of time for a limitation period, but the question of when an arbitration clause kicked in. The court therefore is in agreement with counsel for the defendant that L-3 Communication SPAR is no authority for lending support to the contention that the period of time spent by parties discussing settlement will or could operate to extend the limitation period after a claim has become statute-barred. There seems to be no basis in law for this contention and I so hold. The Counterclaim Whether the Claimant is liable to the Defendant for payment under contract? 72. The defendant had claimed that the claimant had failed to pay the entirety, or at least any, of the purchase price as agreed. The claimant s defence to this was that a compromise was made transferring her payments under Lot #67 to the Lot #47 Page 20 of 22

21 transaction. The Court finds such a compromise unlikely and, even if such an agreement did occur, pursuant to the number of receipts for payments to the defendant attached by the claimant herself, along with the claims for interest put forward by the defendant, the claimant is still owing in payment to the defendant. Whether the Defendant s claim is as susceptible to the limitation period? 73. The defendant has pleaded to set off the sum owed by the defendant against the claims made by the claimant in extinction or diminution thereof. The claimant s claim has however not succeeded as it has been caught by the limitation period. The remaining question is therefore whether the defendant s claim can remain independent of the failure of the claimant s. As the claimant would have breached the contract at the same time as the defendant, i.e. when the completion date passed, the defendant s cause of action also accrued from the same date. Consequently, if the claimant s action is statute barred, so too is the action of the defendant. 74. The defendant s counterclaim for payment of $174,937.01, interest at the rate of %, alternative damages for breach of the agreement, costs and/or further relief is therefore dismissed. Disposition 75. The Court agrees with the defendant s interpretation and understanding of the law, and finds that the claimant s cause of action is in fact statute-barred. 76. The Court accordingly also finds the counterclaim to be statute-barred as well pursuant to section 3(1)(a) of the Limitation of Certain Actions Act Chap. 7:09 and as such, both the claimant s claim and the defendant s counterclaim ought to be dismissed. 77. In light of the Court s analyses and findings, the order of the Court is as follows: Page 21 of 22

22 ORDER: I. The claimant s claim be and is hereby dismissed by virtue of the expiry of the relevant limitation period for commencing the claim. II. The defendant s counterclaim be and is hereby dismissed by virtue of the expiry of the relevant limitation period for commencing the defendant s claim. III. There shall be no orders as to costs on the claim and counterclaim save that in relation to the preliminary point on limitation the claimant shall pay to the defendant costs to be assessed pursuant to CPR 1998 Part 67.11, in default of agreement. Dated this 8 th day of November, 2016 Robin N. Mohammed Judge Page 22 of 22