THE REPUBLIC OF TRINIDAD AND TOBAGO Claim No. CV2009-02764 (formerly HCA 1613/1997) IN THE HIGH COURT OF JUSTICE Between MICHAEL PEREZ The Claimant AND BUDDIE MILLER KAMLYN MILLER The Defendants Before the Honourable Madame Justice Margaret Y Mohammed Dated the 26 th April, 2016 Appearances Mr. Robin Otway for the Claimant Mr. Mark Morgan for the Defendants DECISION 1. On the 16 th July 2014, the Claimant applied to the Court for an order pursuant to Part 43.9 CPR and/or the inherent jurisdiction of the Court for an order directing the Defendants to execute a Deed of Conveyance prepared by the Claimant s attorneys at law, for a certain parcel of land known as Lot No 9 Timshel Park, Maracas Valley ( the property ) within 21 days of the delivery of the deed to the attorneys at law on record for the Defendants and in default directing the Registrar of the Supreme Court to execute the Deed in the event Page 1 of 32
the Defendants neglect or refuse to execute it ( the application ).The Claimant also seeks to recover the costs for the application 2. The issue to be decided relates to the enforcement of an order of Best J pronounced on the 16 th January 2013 ( the Best order ) after the trial of the substantive issues in the matter. If the Claimant is successful it would mean that he would be able to enforce the Best order and realize the fruits of his judgment. If the application fails it would mean that he was successful at the trial but the extent of his success would be nothing more than the paper on which the Best order is written. The Background 3. The narrative preceding the application would assist in placing it in context. It is not in dispute that on the 4 th August 1993 the parties entered into an Agreement for the Sale ( the Agreement for Sale ) of the property. Due to the non-completion of the sale of the property the Claimant instituted the instant action for specific performance of the Agreement for Sale, damages for breach of contract in lieu of specific performance, consequential accounts, directions and inquiries, interest on any damages awarded, a declaration that the Claimant is entitled to and has a lien on the property to the extent of $180,000.00 paid by him to the Defendants under the Agreement for Sale and the amount of the damages and costs. The trial of the substantive matter came up before Best J. According to the written judgment delivered by Best J ( the Best judgment ) at the heart of the dispute were several clauses in the Agreement for Sale. The issues to be determined at the trial were whether the Defendants secured all the necessary approvals so that the property was ready for building and whether the Claimant as purchaser was entitled to an abatement due to the loss of square footage. The Court found that the approval which was given on the 28 th June 1995 was not final approval from Town and Country Planning Division and for the Defendants to construe the approval as both outline and final approval placed the Claimant at a significant disadvantage in sourcing funds to complete the Agreement for Sale. The Court also found that the Claimant is entitled to an abatement in the sum of $20,666.50. Page 2 of 32
4. In the Best order the Court ordered specific performance of the Agreement for Sale, for the Defendant to pay the Claimant his costs of the action certified fit for one Counsel to be taxed in default of agreement and a stay of execution of 42 days. Notably missing from the order in the Best judgment and the perfected order is the Claimant s entitlement to the sum of $20,666.50 as an abatement. I will address this matter later. On the 25 th February 2013, two days before the expiration of the stay of execution the Defendants appealed the Best order. They did not apply to the Court of Appeal for a stay of execution of the Best order pending the hearing of the appeal. On the 25 th June 2014 the Defendants withdrew the appeal. The application 5. In support of the application the Claimant filed two affidavits. The Claimant s first affidavit was filed on the 16 th July 2014 ( the first affidavit ) and the supplemental affidavit filed on the 29 th September 2014 ( the supplemental affidavit ).The grounds of the application are that the Best order does not provide a period within which the Defendants are to comply with the order for specific performance of the Agreement for Sale and the Defendants have failed to comply with a request made in a letter dated 4 th April 2014 by the Claimant s attorney at law to the Defendants attorney at law that they indicate their willingness within 10 days of the date of the letter to execute the Deed of Conveyance ( the letter ). 6. In opposition the Defendants filed an affidavit by the First Defendant on the 22 nd October 2014 ( the Defendants affidavit ). 7. In the Claimant s submissions he sought permission to file a further affidavit ( the further affidavit ) which was attached to the submissions. In the further affidavit the Claimant identified the present position of the property. He also sought permission to amend the application to seek an abatement of the purchase price in the sum of $180,000.00 as provided for by paragraph 20 of the Best judgment and to ensure that the Best order is given full effect by directing the Defendants to either provide proper access to the property Page 3 of 32
or pay the costs of clearing and repairing the access road as per an invoice attached to the further affidavit. 8. The submissions on the application were on the Court s jurisdiction, preliminary objections and the substantive issue for determination which I will now address in turn. The Court s jurisdiction 9. It was argued by Counsel for the Defendants that although the application was made pursuant to Part 43.9 CPR the nature of the order which the Claimant is seeking is in effect a mandatory order that the Defendants execute a Deed of Conveyance at some unspecified time that is dependent on the Claimant delivering the Deed of Conveyance. As such the Claimant is asking the Court to re-write the Agreement for Sale by removing the time is of the essence provision and the Court does not have any procedural jurisdiction to do so under Part 43.9 CPR which deals with the time for compliance with a judgment or an order or under the inherent jurisdiction of the Court. Counsel for the Defendants also argued that the conjoint effect of Part 43.9 CPR, the Best order and the time of the essence provision in the Agreement for Sale meant that the time for the completion of the Agreement for Sale was fixed for the 27 th February 2013 which was the date of the expiry of the stay of execution and no intervention under Part 43.9 CPR is necessary. 10. In response, it was argued on behalf of the Claimant that the application is to vary the order of Best J to set a specific time to complete the Agreement for Sale since the Best order failed to make provision to do so. 11. Part 43.9 CPR makes provision for the time to comply with a judgment or order. It provides: A party must comply with a judgment or order immediately, unless- (a) The judgment or order specifies some other date for compliance; (b) The court varies the time for compliance; or Page 4 of 32
(c) When the Claimant enters judgment in default under Part 12 or judgment on an admission under Part 14, he specifies a different time for compliance. 12. In my view it is clear from Part 43.9 CPR that a judgment or order is to be complied with immediately or at any other time as set out in the order. It also gives the Court a discretion based on the circumstances of the case to vary the time for compliance of an order. Therefore if the Best order did or did not fix a time for the completion of the sale and the parties did not complete, a party can still apply to the Court under Part 43.9 CPR to vary the time for completion. 13. Further, paragraph 14 of Halsbury s Laws of England 1 describes the inherent jurisdiction of the Court as: The jurisdiction of the court which is comprised within the term inherent is that which enables it to fulfil itself, properly and effectively, as a court of law. The overriding feature of the inherent jurisdiction of the court is that it is a part of procedural law, both civil and criminal, and not a part of substantive law; it is exercisable by summary process, without a plenary trial; it may be invoked not only in relation to parties in pending proceedings, but in relation to any one, whether a party or not, and in relation to matters not raised in the litigation between the parties; it must be distinguished from the exercise of judicial discretion; and it may be exercised even in circumstances governed by rules of court. The inherent jurisdiction of the court enables it to exercise (1) control over process by regulating its proceedings, by preventing the abuse of process and by compelling the observance of process, (2) control over persons, as for example over minors and mental patients, and officers of the court, and (3) control over the powers of inferior courts and tribunals. In sum, it may be said that the inherent jurisdiction of the court is a virile and viable doctrine, and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them. 1 Vol 37 Page 5 of 32
14. What is a party to do if there is disagreement on the interpretation of an order pronounced by the Court which is so fundamental that it can deny the aggrieved party from enforcing the order? Based on the Defendant s submissions it appears that the aggrieved party has no recourse. I cannot agree with this position. In my view, in addition to the Court s discretion under Part 43.9 (b) CPR the Court also has an inherent jurisdiction to vary the terms of the Best order to give effect to it. Preliminary objections 15. There were three preliminary objections raised in the Defendants submissions namely (i) late service of submissions; (ii) the further affidavit; and (iii) exhibits MP3 and MP5 and certain paragraphs of the first affidavit and the supplemental affidavit. Late service of submissions 16. Counsel for the Defendants objected to the late service of the submissions on the basis that it was unjust and unfair to the Defendants and not in keeping with the proper administration of justice. On the 8 th March 2016 I granted the Claimants permission to serve the submissions on the 1 st February 2016. Therefore this is no longer an issue to be addressed. The further affidavit 17. The Defendants objected to the admission into evidence of the further affidavit on the basis that the Court did not give permission to file it and it contained matters which the Claimant and his attorney at law were aware of at the hearing on the 14 th December 2015. Counsel for the Defendants argued that the new matters contained in the further affidavit contained are prejudicial to the Defendants who have not been given the opportunity to respond to it. They also objected on the basis that it is contrary to the overriding objective of the CPR because it attempts to place the Claimant in a better position than the Defendant and to give him an unfair tactical advantage ; it increases expense because the Defendants will have to answer the allegations in it if the Court permits it to stand; it causes further delay; Page 6 of 32
it is inappropriate strain on the Court s resources since it contained information which the Claimant and his attorney were aware of at the hearing on the 14 th December 2015. 18. In response Counsel for the Claimant submitted that it was wrong for the Defendants to assume that he was relying on the further affidavit in support of the application since it was clear from his submissions that he was seeking the Court s permission to do so. 19. The further affidavit states that the Defendants have not provided him with receipts or other evidence to show that all rates and taxes in respect of the property are paid even though there are contending that the Agreement for Sale should have been completed following the pronouncement of the Best order. It also gives an updated position on the access road to the property where he states that it has become impassable. It annexed photographs of the said roads and a quotation from a contractor with the cost for the work needed to allow the Claimant access to the property. The basis for the further affidavit is the relief sought by the Claimant when he sought permission to amend the application to seek an abatement in the sum of $180,000.00 in order to give effect to the Best order. 20. I am not prepared to give the Claimant permission to amend the application and to rely on the further affidavit since in my view the latter raises new matters which are prejudicial to the Defendants who did not have the opportunity to respond to the new evidence in the further affidavit. While the further affidavit introduced information received in January 2016, there is no good explanation for not putting the same information before the Court at the hearing on December 2015, given that the application was filed in July 2014. MP 3 and MP 5 21. The third preliminary objection made by Counsel for the Defendants concerned exhibits MP 3 and MP 5 and the certain parts of the Claimant s first affidavit and the supplemental affidavit. 22. The objections to the Claimants first affidavit were on the emails exhibited as MP3, the letter exhibited as MP 5 and paragraphs 5, 6 and 7. Page 7 of 32
23. The emails in contention are dated 29 th November 2012 (2); 7 th December 2012; 28 th August 2013; 30 th August 2013 (5); 10 th October 2013; 8 th November 2013; 24 th February 2014. All the emails on behalf of the Claimants were written by Mr. Otway and the responses, which consisted mainly acknowledgments, were by Mr. Morgan s Assistant. The nature of the emails from Mr. Otway to Mr. Morgan were Mr. Otway s attempts to agree the issue of costs of the action and to take steps to deal with the specific performance of the Agreement for Sale by informing Mr. Morgan that Mr. David Clarke is preparing the Deed of Conveyance. The extent of any response from Mr. Morgan was from his Assistant acknowledging receipt of the emails and indicating to Mr. Otway that Mr. Morgan has been in receipt of them. 24. MP 5 is the letter which Mr. Otway referred to Mr. Morgan s alleged objection to his clients being required to convey the property. I will set out the text of the letter here since I will refer to its contents later. 7 th April 2014 Mark Morgan Fitzwilliam, Stone Furness-Smith & Morgan Attorneys-at-Law Nos. 48-50 Sackville Street Port-of-Spain Dear Sir, Re: Miller High Court Action No. 1613 of 1997 Michael Perez v Buddie and Kamlyn I refer to our recent telephone conversation when you took the position for the first time since the Order of Justice C. Best dated 16 th January 2013 that your clients are not required to convey the subject property to my client, notwithstanding the terms of that Order, copy of which is attached for your ease of reference, on the basis that the time for compliance therewith is the same as is provided for in the Agreement for Sale dated 9 th August 1994. The latter is of course dated some 19 years prior to the date of that Order, and the time for completion set by it, namely 180 days from its date, has expired long years ago. The learned Judge did not fix any time for completion of the transaction but his order clearly contemplated setting a new time frame and no doubt he expected that the parties would Page 8 of 32
have come to an agreement on same so as to avoid the need for an application to the Court under Part 43.9 of the Civil Proceedings Rules, 1998, as discussed in greater detail below. Further, your clients filed a Notice of Appeal since 25 th February 2013 and no steps have been taken to pursue those proceedings, nor have you indicated any intention to withdraw them. My client is therefore entitled to apply under Part 64.13 of the Civil Proceedings Rules to have that appeal struck out. I have communicated with you on many occasions by e-mail and by letter since the date of that Appeal and copies of all of that correspondence are attached. I have no record of receiving any response in writing to any of those items, save for assurances by Your Assistant that my correspondence would be brought to your attention. My client s position is that given the filing of your clients Appeal it was reasonable and proper for him to put on hold any steps towards having a Deed of Conveyance in his favour completed even if your clients had been willing to execute any such document, since the outcome of that appeal could possibly have invalidated the transaction thereby negating the considerable expense that my client would necessarily have incurred in the preparation, stamping and registration of the deed. I refer you in this regard to the last paragraph of my e-mail to you of 29 th November 2012, copy of which is also attached. You have not indicated at any time your clients willingness to execute a Deed of Conveyance and the filing of the appeal suggests that they would not be interested in doing so until its outcome, assuming it might be in my client s favour. You are referred furthermore to Part 43.9 of the Civil Proceedings Rules, 1998, and the learning under the equivalent English Rule (see in this regard Rule 40.11 and paragraphs sc45.6 and sc45.61 of 2010 White Book ) which make it clear that where an Order such as the one made by Justice Best here does not specify a date for compliance with it then an application may be made to the Court to fix a time in this regard and to provide also that should your clients fail to execute a Deed in favour of my client then the Registrar of the Supreme Court could do so in their place. Therefore, I reject your position that the time for compliance with the learned Judge s order has expired. Since it now seems that your clients appeal was not filed with any serious intention of challenging the order my client will now seek to enforce the order. My Client had consulted Mr. David Clarke of J.D. Sellier & Co. To prepare the deed of conveyance in this matter and I have been advised by Mr. Clarke that he requires the following information and documents:- 1) a reference to the registration number of the Deed to which the general survey plan of the development is attached; 2) a copy of the standard form Deed for the development (if any). Mr. Clarke has informed me his firm would have to carry out title searches for which he will require at least 30 days during which time the other documents requested should be provided to him and the form of deed finalised. I have requested Mr. Clarke to contact you directly to finalise arrangements for the above. I trust that it will not be necessary to file either of the applications under Parts 64.13 and 43.9 ad above-mentioned and look forward to receiving your confirmation of this, or at Page 9 of 32
least to you stating your clients definitive position in writing on the matters raised herein and as regards the costs awarded by Justice Best, and I refer in this regard in particular to my letter to you dated 24 th February 2014 (a copy of which is enclosed), within the next 10 days from the date of this letter to avoid further Court proceedings as aforesaid. Sincerely, Robin Otway Robin Otway cc. W.D. Clarke Michael Perez Encs: 25. The Defendants submitted that none of the email communications comprising MP 3 are relevant to the application. They objected to MP 3 and MP 5 on the basis that they contain evidence of Counsel in the matter and it offends against clause 35 Part A of the Code of Ethics to the Legal Profession Act 2 ( the LPA ). They also submitted that because they are Counsel to Counsel communication the imbalance cannot be addressed without Mr. Morgan giving evidence which in compliance with the Code of Ethics he cannot do. Another objection to exhibits MP 3 and MP 5 was the Claimant has no direct knowledge of the information contained in MP 3 and MP 5 as such the requirements under Part 31.3 (2) CPR have not been satisfied since the Claimant does not state in the first affidavit that Mr. Otway informed him that he sent the emails that are attached to MP 3 and MP 5 and in the supplemental affidavit. 26. In response Counsel for the Claimant argued that Mr. Otway s name appeared on all documents filed with the Court as both Instructing Attorney and Counsel and all the exhibits referred to in MP 3 were written in Mr. Otway s capacity as instructing attorney at law. He also submitted that the correspondence were addressed to Mr. Morgan who also acted in both capacities of instructing attorney at law and Counsel which the Court records including the Appeal proceedings will indicate. The notice from the Court of Appeal which is exhibit MP 4 in the first affidavit is addressed to Mr. Morgan and Mr. Otway 2 Chapter 90:04 Page 10 of 32
personally. If Mr. Morgan was not acting as both instructing attorney at law and Counsel he should have re-directed the correspondence to the appropriate person or he should have replied which is required by Part A rule 42 of the Code of Ethics of the LPA. 27. He also submitted that clause 35A of the Code of Ethics allows formal matters such as that contained in the correspondence in exhibits MP 3 and MP 5 to be put into evidence by an attorney at law on behalf of his client. In any event Mr. Otway has not sought to appear as a witness, since only the Claimant has filed affidavits in support of the application. 28. With respect to the contents of the emails, Counsel for the Claimant argued that all relevant statements of fact are repeated in the first affidavit and their contents speak for themselves without the need for anyone to testify to redress any imbalance. He argued that in an interlocutory or summary application such as the application, a party wishing to crossexamine any witness ought to indicate what issues of fact in controversy he wishes to deal with this was not done in the application. Further, he added that the reasons for the Best judgment were made available on the 5 th November 2012 and Best J who had retired was subsequently called out to formally deliver his judgment on the 16 th January 2013 when he read it out. Therefore the timing of the emails is not in issue. 29. The Defendants objection to the contents of exhibits MP 3 and MP5 are in relation to the relevance of the information contained therein to the application, the timing, and the manner in which they are placed before the Court. In my view, those objections are not significant to warrant a striking out of the exhibits MP 3 and MP 5 for the following reasons. 30. Firstly, the fact of the emails has not been disputed by the Defendants. Indeed at paragraph 10 of the Defendants affidavit they acknowledged and treated with the correspondence in exhibits MP3 and MP5 when they stated: 10. As can be seen from the correspondence, neither Mr. Perez nor his Attorney raised the question of completion until after it became clear that my wife and I were not pursuing the Appeal because Mr. Perez had failed to complete. Page 11 of 32
31. Secondly, there is no basis under the LPA to strike out MP 3 and MP 5. Clause 35 of Part A of the Code of Ethics of the LPA provides : 35 (1) An Attorney at-law should not appear as a witness for his own client except as to merely formal matters or where such appearance is essential to the ends of justice. (2) If an Attorney-at-law is a necessary witness for his client with respect to matters other than such as are merely formal, he should entrust the conduct of the case to another Attorney-at law of his client s choice. 32. The emails exhibited as MP 3 and MP 5 contained correspondence written by Mr. Otway as instructing attorney at law for the Claimant to Mr. Morgan who was also on record as instructing attorney at law for the Defendant concerning the Best order. There was no evidence from the Defendants disputing that Mr. Morgan acted as both their instructing attorney at law and Counsel in the matter. 33. In the first e-mail in exhibit MP 3 dated the 29 th November 2012 Mr. Otway initially suggested that the costs of the High Court action be agreed. In my view, these facts did not need to be verified by the Claimant or even Mr. Otway who wrote the email. There was nothing unusual about the timing of this first email since it was not disputed by the Defendants that the Reasons for the Best judgment were made available on 5 th November 2012, and that Best J was called out subsequently to formally deliver the Best judgment on 16 th January 2013. The Defendants have not stated that the Reasons in the Best judgments made available on the 5 th November 2012 were different in substance from the Best judgment delivered on the 16 th January 2013. 34. The other e-mails in MP3 contains merely formal matters such as referring specifically to prior written Reasons for the Best judgment which a scanned copy was sent to Mr. Morgan and reminders that there was no response to previous emails. 35. In MP 5 Mr. Otway states that while the Best order did not set out a time for completion if the parties did not arrive at a consensus he would make an application to have the Court set a time for completion. He also indicated to Mr. Morgan that since the filing of the appeal the Defendant did not take steps to prosecute it and as such his client is entitled to apply Page 12 of 32
under Part 64.13 CPR to have the appeal struck out. Mr. Otway also indicated that despite his several communications to Mr. Morgan he has not received any response. He then states his client s position that given the filing of the appeal that it was reasonable and proper to put a hold any steps to have the Deed of Conveyance executed even if the Defendants are willing to complete since if the Best order is reversed on appeal it would negate the transaction causing considerable expense to the Claimant. He referred to the learning on Part 43.9 CPR and his client s position to enforce the Best order. He then requested certain information from the Defendants for Mr. David Clarke of JD Sellier, Attorneys at law in preparation for the finalization of the documents to complete the agreement. 36. In my view, all the information contained in the correspondence which form exhibits MP 3 and MP 5 are typical of correspondence from one instructing attorney to another which under rule 42 Part A of the Code of Ethics of the LPA Mr. Morgan was under a duty to reply to promptly since all the correspondence were from Mr. Otway to him concerning enquiries of his clients, the Defendants. Further I am satisfied that all relevant statements of fact are repeated in the first affidavit. 37. Further, the Defendant s submission that exhibits MP 3 and MP 5 should be struck out on the basis that it is Counsel s evidence and the only proper way to address this imbalance is to strike them out is without merit. There was no evidence that Mr. Morgan was acting only as Counsel for the Defendants in the matter. Exhibit MP4 which is the notice of appeal demonstrates that he was acting both as instructing attorney at law and Counsel. In the Defendants affidavit the facts they have disputed are at paragraph 5 where they have stated that there is no mortgage on the property, at paragraph 7 that they did not receive any correspondence from the Claimant or his attorney suggesting that the agreement for sale not be completed in order to save costs, at paragraph 8 that the Claimant has the ability to complete the sale, and at paragraph 9 that the appeal was withdrawn with no orders as to costs and not dismissed as stated by the Claimant. The Defendants did not indicate that they wished to cross-examine the Claimant on the issues of fact they disputed. The said e- mails and the letter at MP 5 speak for themselves and therefore there is no need for anyone to testify to redress a supposed imbalance. Page 13 of 32
38. In any event the facts and circumstances in Hosein Construction v 3 G Technologies 3 which was referred to by the Defendants in support of their submission that Mr. Otway cannot be a witness in this matter can easily be distinguished from the facts in the application. In Hosein Construction v 3 G Technologies the instructing attorney at law was a director of the defendant and had given a lengthy witness statement which was critical in the determination of the issues in the trial. Counsel in that matter was also a director of the defendant and the husband of instructing attorney. He was allowed to continue as Counsel at the trial. In this matter there was nothing in the correspondence which was in the nature of evidence. The nature of the correspondence was typical from one instructing attorney to another. 39. Thirdly, the information contained in exhibits MP3 and MP5 are relevant since they set out the steps taken by the Claimant to comply with the Best order from the time the Claimant became aware of the Reasons in the Best judgment. Again the Defendants affidavit did not dispute the time they became aware of the Reasons in the Best judgment. 40. The Defendants also objected to paragraph 5, part of paragraph 6 and paragraph 7 of the Claimant s first affidavit for non-compliance with Part 31.3 CPR. Paragraphs 5, 6 and 7 state : 5. While the said Appeal was pending my Attorney-at-law Mr. Robin Otway, wrote several e-mails (9 in all) to Mr. Mark Morgan of the firm of Fitzwilliam, Stone, Furness-Smith & Morgan, Attorneys at law for the defendants over the period 2012 to February 2014 and I am informed by Mr. Otway and verily believe that Mr. Morgan himself never responded thereto, although his Assistant did communicate on his behalf. True copies of the bundle of e-mails exchanged in this respect is hereto annexed and collectively marked. 6. Shortly before the receipt of the Notice dated 23 rd April 2014 from the Court of Appeal, true copy whereof is attached and marked MP 4 fixing the date mentioned in paragraph (3) hereinabove when the Appeal proceedings were 3 CV 2008-00560 Page 14 of 32
dismissed because of the appellants failure to prosecute same and noncompliance with the relevant rules in that regard, in the expectation that this would happen my Attorneys-at-Law wrote to the defendants and Attorneys-at- Law by letter dated 7 th April 2014 which inter alia called upon the defendants to indicate their willingness to execute a Deed of Conveyance of the Property pursuant to the said Order. I am informed by Mr. Robin Otway and verily believe that he had with Mr. Morgan the telephone conversation referred to in the first paragraph of that said letter, a true copy whereof is hereto annexed and marked MP 5, and that to date no response to that said letter has been received. 7. I have engaged Mr. William David Clarke of the firm of J.D. Sellier & Company to prepare a Deed of Conveyance pursuant to the said Order and he has also written on my behalf by letter dated 8 th April 2014 to the defendants Attorneys-at-Law seeking information as regards the defendants title to the Property, and he to informs me and I verily believe that he has received no response to that letter to date despite several calls to the offices of the defendants Attorneys-at-Law and messages left with the Assistant to Mr. Mark Morgan. 41. The Defendants objected to part of paragraph 4 of the supplemental affidavit for noncompliance with Part 31.3 CPR. It stated: 4. I have engaged Mr. David Clarke, a partner of the firm J.D. Sellier & Co, to prepare a Deed of Conveyance of the Property to me in accordance with the said Order, and attached hereto and marked MP7 is a draft of Mr. Clarke s Deed which was prepared pending the completion of his title searches, These however so far revealed that there is in existence and effect an unreleased, so far, at least as the Property is concerned, Deed of Mortgage registered as number 3703 of 1987 by the defendants in favour of Republic Finance and Merchant Bank Limited. 42. Part 31.3 CPR provides that: 31.3 (1) The general rule is that an affidavit may contain only such facts as the deponent is able to prove from his own knowledge. (2) However, an affidavit may contain statements of information and belief (a) where any of these Rules so allows; and (b) Where it is for use in any procedural or interlocutory application or in an application for summary judgment, Page 15 of 32
provided that the source of such information and the ground of such belief is stated in the affidavit. (3) The court may order that any scandalous, irrelevant or otherwise oppressive matter be struck out of any affidavit. (4) No affidavit containing any alteration may be used in evidence unless all such alterations have been initialed by the person before whom the affidavit was sworn. 43. While I agree with the Defendants that the Claimant did not comply with Part 31.3 CPR, the Defendants did not raise these objection in the Defendants affidavit. Indeed they dealt with the matters raised at paragraphs 5, 6 and 7 of the affidavit and paragraph 4 of the supplemental affidavit where they disputed that there is a mortgage on the property and the reason for the ending of the appeal. In my view the mere technicalities raised by the Defendants are not significant to warrant a striking out of the substance of the paragraphs. The Substantive issue 44. The substantive issue for determination is: did the Best order set a time for the Agreement for Sale to be completed? 45. In support of the application the Claimant argued that the Best order did not fix a date for the specific performance of the Agreement for Sale; the Defendants have failed to comply with the Claimant s request dated the 4 th April 2014 to indicate their willingness to execute the Deed of Conveyance to complete the sale within 10 days after the date of the letter. Therefore it lies within the equitable jurisdiction of the Court to make the order requested in the application since it would give effect to the Best order and it was incumbent on the Defendants to satisfy the Court that they were ready, willing and able at all material times to complete the Agreement for Sale. 46. Counsel for the Defendant disagreed with the position adopted by the Claimant. He responded that the conjoint effect of Part 43.9 CPR, the Best order and the Agreement for Sale is that the time for its completion was 42 days after the Best order which was the 27 th February 2013. The Claimant cannot rely on the equitable jurisdiction of the Court to grant Page 16 of 32
a new order for specific performance since it is not available in circumstances where a party has failed to comply within a time of the essence clause and even if it was available it should not be granted to the Claimant since he has not come to the Court with clean hands for various reasons which I will identify later. 47. The Best order provided: 1. This court grants Specific Performance of the Agreement for sale of all and singular that parcel of land known as Lot 9 Timshel Park, Maracas Valley in the Ward of Tacarigua comprising 1721.6 square meters being portion of the lands described in the schedule to Deed No 15570 of 1987. 2. The Costs of this matter are to be taxed and paid by the Defendants to the Claimant certified fit for one Counsel; and 3. There be a stay of execution of forty-two days from today s date. 48. The role of the Court in interpreting the Best order is to give effect to what Best J intended. To do so there are several rules of interpretation which may be applied. In this regard the learning in the Halsburys Laws of England 4 th ed Vol 44 (1) is instructive. While I have noted that Halsburys examine the rules of interpretation in the context of statutes in my view the principles are still good and applicable law to resolve the issue in the application. 49. It is a fundament rule that when the Court is interpreting legislation or an order it strives to ascribe a meaning to reflect the intention of the maker of the document and to do so the Court must first look to the ordinary meaning of the words of the section. Halsbury s Laws of England 4 describes the plain meaning rule as : It is a rule of the common law, which may be called the plain meaning rule, that where, in relation to the facts of the instant case, the enactment under inquiry is grammatically capable of one meaning only and, on an informed interpretation of the enactment, the interpretative criteria raise no real doubt as to whether the meaning is the one intended by the legislator then the legal meaning of the 4 4 th ed Vol 44 (1) at paragraph 1391 Page 17 of 32
enactment is taken to correspond to that grammatical meaning but that in any other case the basic rule of statutory interpretation is to be applied. 50. What was the plain and ordinary meaning of the Best order? The Claimant says that the plain meaning of the Best order is that it did not grant a period within which for the Agreement for Sale to be completed. It only granted a stay of execution of the completion of the Agreement for Sale. 51. The Defendants states that the Best order stated a time to complete the Agreement for Sale. In their view, since the Agreement for Sale made time of the essence, the Claimant was required to complete the sale upon the pronouncement of the Best order which was the 16 th January 2013. However this time was delayed by 42 days since Best J granted a stay of execution of the said period. Therefore upon the expiration of the 42 days the Claimant was required to complete the sale even if there was a pending appeal since a notice of appeal does not act as a stay on proceedings. 52. It was submitted on the Defendants behalf that in the Agreement for Sale the issue of time being of the essence was raised by the Defendants at the trial. It was addressed at page 16 of the Best judgment and therefore it must or ought to have been in the Claimant s contemplation when Best J ordered that there be specific performance of the Agreement for Sale. It was their view that the material language of paragraph 1 of the Best order is this Court grants specific performance of the Agreement for Sale. Clause 11 of the Agreement for Sale expressly states that in the agreement any extension, modification or variation of the terms time shall be of the essence. Part 43.9 CPR provides that a party must comply with a judgment or order immediately unless the judgment or order specified some other date for compliance. In this case by ordering a stay, the Court specified another date for compliance namely 42 days after the 16 th January 2013 (i.e. on the 27 th February 2013). It was their position that the conjoint effect of Part 43.9 CPR, the time of the essence provision in the Agreement for Sale and the full terms of the Best order meant that the Agreement for Sale would have had to be completed by the 27 th February 2013 since the Best order delayed completion until the 27 th February 2013. Page 18 of 32
53. What is the plain and ordinary meaning of the Best order? According to paragraph 1 of the Best order the Defendants were directed to complete the Agreement for Sale. The evidence of both the Claimant and the Defendants was that they understood this to be the effect of paragraph 1. There was no expressed time set in paragraph 1 of the Best order for completion of the Agreement for Sale. However, based on paragraph 3 of the Best order paragraph 1 it could not be enforced until the expiration of the stay of execution which was until 42 days after the Best order namely 27 th February 2013. Therefore after the expiration of the 42 days there was no impediment stopping the Claimant from enforcing paragraph 1 of the Best order and there was no expressed provision stating that it could not be completed any time after the 27 th February, 2013. 54. In my view the plain/ordinary meaning of the Best order was that it did not expressly state a time to complete the Agreement for Sale but rather it did the opposite since it implicitly stated that it could not have been completed before the 27 th February 2013. The evidence from both parties demonstrated that they understood the plain/ordinary meaning of the Best order. At paragraphs 3 and 4 of the first affidavit the Claimant stated that the Defendants filed an appeal on the 25 th February 2013 against the Best order which was dismissed by the full Court of Appeal on the 25 th June 2014. He did not take steps pending the determination of the appeal to enforce the Best order since he was advised by his attorney at law that it is standard practice not to do so pending an appeal and that in the event that the Best order was reversed by the Court of Appeal he would have incurred the costs of preparing and registering a Deed of Conveyance in vain and that the Deed of Conveyance would have to be revoked by a subsequent deed which is additional costs. 55. At paragraph 4 of the Defendants affidavit they confirmed that after they gave their attorneys at law instructions to appeal the Best order which they did on the 25 th February 2013. They also considered whether they should instruct their attorneys at law to apply for a stay of execution of the Best order pending the appeal or to go ahead with the completion of the sale on the 27 th February 2013 which was the expiration of the 42 days stay of execution in the Best order. They decided against applying for the stay of execution on the basis that if they were successful on appeal then the Claimant would have to re-convey the property to them. They were therefore prepared to complete the Agreement for Sale. Page 19 of 32
However there was no evidence in the Defendants affidavit that they communicated their readiness to complete the Agreement for Sale to the Claimant. I have to assess the credibility of the Defendants evidence against that of the Claimant s whose attorney at law was communicating with the Defendants attorney at law from November 2012 to April 2014 on the steps being taken by the Claimant concerning the Best order. In my view when I compare the approach taken by both the Claimant and the Defendants it appears that the Defendants position that they were ready to complete the Agreement for Sale after the 27 th February 2013 is lacking in credibility. 56. On the other hand, even if I were to accept the Defendants interpretation of the Best order which is that the date fixed for the completion of the sale was the 27 th February 2013 and that time was of the essence the only reference in the Best judgment to the time of the essence argument was at pages 16 and 17 which stated: Though not expressly raised by the claimant, the defendant submits that the proposition that time was not of the essence is defeated on the following grounds: 1. The issue was not raised in the re-amended Statement of Claim and therefore does not form part of the lis between the parties. Furthermore, it is irrelevant to the matter at hand. 2. Clause 11 of the Agreement for sale provides that time shall be of the essence and the Agreement specifically makes the extended time of the essence and there was no need for it to be expressly done in any agreed extension. 3. As a matter of law, where time is initially made of the essence it continues to remain like that and no specific provision need be made to this effect in any agreement extending time. 57. The Court did not address the issue or make a finding of whether in the circumstances of the instant case the time of the essence clause in the Agreement for Sale was extended. Therefore I cannot agree with the submissions made by Counsel for the Defendant that the time of the essence clause was within the contemplation of the Court when the Best order was pronounced. In my view the Defendants cannot rely on the time of the essence clause in the Agreement for Sale to defeat the plain and ordinary meaning of the Best order since Page 20 of 32
there was no evidence that it was within Best J s contemplation that this clause was to still have effect after the Best order. 58. Further, if it is the Defendants position that time was of the essence after the 27 th February 2013, they were ready to complete the Sale and the onus was on the Claimant to take steps to do so then one is left to wonder why their attorney, Mr. Morgan who had been in receipt of 12 emails from the time they were aware of the Reasons of the Best judgment in November 2012 (for the period 29 th November 2102 to 24 th February 2014) did not see it fit to reply to any of these emails setting out the Defendants position. While I agree with the Defendants that the onus was on the Claimant to take steps to complete the sale, it was clear from the correspondence during that period the steps he had taken and the reasons for taking them. 59. The interpretation which the Defendants have adopted appears to be a strict interpretation of the Best order. At paragraph 1382 of Halsburys the learned authors described the approach a Court should take where there is a strict versus a liberal interpretation. It states: 1379. Strict and liberal construction. Where the application of one of the opposing constructions of an enactment would produce an adverse result (that is one detrimental to the subject or the state), that is a factor against that construction, and indicates that the court should curtail the application of the enactment, narrowing its operation and effect, a process known as strict construction. Where the application of one of the opposing constructions of the enactment would produce a beneficent result (that is one beneficial to the subject or the state), that is a factor favouring that construction, and indicates that the court should widen the application of the enactment, a process known as liberal construction. 60. It was not in dispute that under Part 60.3 CPR, an appeal does not act as a stay on the proceedings and there was no evidence of any standard practice that a notice of appeal can be treated as a stay of execution of an order. However, if the interpretation which is suggested by the Defendant is taken it would mean that the Claimant who was successful at the trial would be deprived of the benefit of enforcing the Best order. Page 21 of 32
61. It would also mean that the Court would condone the conduct of the Defendants, in particular the conduct of attorney at law for the Defendants. The undisputed facts in this matter are that after the Best Order Mr. Otway communicated with Mr. Morgan on several occasion concerning steps to give effect to the Best order. Mr. Morgan did not respond despite having received the said communication. The Defendants affidavit has not dispute those matters. The Defendants having filed an appeal and instructing attorney not having received any response from Mr. Morgan in my view acted reasonably by assuming that Mr. Morgan s silence was a tacit acquiescence of the positions articulated in the Claimants emails and in particular the position that the Claimant would not pursue completing the Agreement for Sale pending the appeal. 62. In light of the aforesaid reasons, I have concluded that the Best order did not fix a time for completion of the Agreement for Sale. It did the opposite since it fixed a time when it could not have been completed. However, even if the Best order had fixed the time for the completion of the sale as the 27 th February 2013, as argued by the Defendants, there was no finding by Best J that time was of the essence. In any event it was reasonable for the Claimant to conclude based on the Defendants conduct that time was not of the essence while the appeal was pending. The Court still has the power under Part 43.9 CPR and its inherent jurisdiction to vary the Best order and set a date for completion of the sale. The equitable jurisdiction of the Court 63. Although I have found that the Court has the power to vary the Best order to give effect to it I will address the Court s power to remedy a wrong under its equitable jurisdiction since this issue was addressed by both parties in their written submissions. It was submitted on behalf of the Claimant that he relies on the maxim that equity does not allow the Court to act in vain and that equity will not suffer a wrong to be without a remedy 64. In response the Counsel for the Defendants argued that the Claimant cannot appeal to the Court s equitable jurisdiction since he has not approached the Court with clean hands. In support of this contention they submitted that the Claimant relied on an unknown and Page 22 of 32
unproven practice of not enforcing orders pending an appeal; he took the deliberate decision not to complete on the 27 th February 2013 because he did not want to risk paying the stamp duty and closing costs ; he failed to obtain the Defendants agreement to a postponement of the completion of the Agreement for Sale but instead unilaterally decided not to complete; he failed to inform the Defendants of his unilateral decision to postpone the completion of the Agreement for Sale until after the appeal; he knew by April 2014 that the Defendants considered that they were not obliged to complete the Agreement for Sale and he did nothing that would cause the Defendants to continue the appeal; he waited until after the Defendants had withdrawn the appeal and so had irrevocably compromised their position before he filed the application; he did not tender the purchase price, the Deed of Conveyance or provide any evidence that he was able and willing to complete the Agreement for Sale and he has not been frank and forthcoming with the Court on when he engaged Mr. Clarke to act as his conveyancer. 65. In Westdeutsche Landesbank Girozentrale v Islington London Borough Council Appellant 5, at pages 695-696 the role of the equitable jurisdiction of the Court was described as: I turn to the question whether the equitable jurisdiction can be exercised in aid of common law remedies such as, for example, a personal remedy in restitution, to repair the deficiencies of the common law. Here I turn at once to Snell s Equity, 29 th ed. (1990), p. 28, where the first maxim of equity is stated to be that Equity will not suffer a wrong to be without a remedy. The commentary on this maxim in the text reads: The idea expressed in this maxim is that no wrong should be allowed to go unredressed if it is capable of being remedied by courts of justice, and this really underlies the whole jurisdiction of equity. As already explained, the common law courts failed to remedy many undoubted wrongs, and this failure led to the establishment of the Court of Chancery. But is must not be supposed that every moral wrong was redressed by the Court of Chancery. The maxim must be taken as referring to rights which are suitable for judicial enforcement, but were not enforced at common law owing to some technical defect. 5 [1996] A.C. 669 Page 23 of 32