Universal Leasing and Finance Ltd v. Montego Vacations Ltd (Jamaica)  UKPC 2 (24 January 2002)
Privy Council Appeal No. 33 of 2000
Universal Leasing and Finance Limited Appellant
Montego Vacations Limited Respondent
THE COURT OF APPEAL OF JAMAICA
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 24th January 2002
Present at the hearing:-
Lord Hope of Craighead
Lord Scott of Foscote
Sir Christopher Slade
[Delivered by Lord Scott of Foscote]
“On the signing hereof the Purchasers shall pay a deposit on account of the purchase price of ONE HUNDRED AND FORTY THOUSAND DOLLARS currency of Jamaica to the Attorneys-at-Law having the carriage of sale hereinafter named. Within fourteen days of the date hereof the Purchasers shall pay to the said Attorneys a further amount of FOURTEEN THOUSAND DOLLARS currency of Jamaica on account of the purchase price. The balance of purchase price together with the Purchasers’ share of costs hereinafter defined shall be paid not later than twelve months from the date upon which the Vendors certify in writing to the Purchasers that they are in a position to deliver to the Purchasers vacant possession of the property sold.
To be apportioned as at the date of possession.”
“3. The Purchasers agree to pay half of the cost of refurbishing the building situate on the property sold subject to a maximum liability on the part of the Vendors of One Hundred and Twenty-Five Thousand Dollars currency of Jamaica.
4. As at the date hereof the Vendors shall dismiss all and every member of staff employed by it at the property sold and the Vendors shall be responsible for all termination and redundancy payments due to such staff as a result of such dismissal.
5. The Purchasers shall be responsible for insurance on the property sold as from the date hereof.
6. All reference herein as to time shall be of the essence of the Contract.”
“8. By letter dated September 15, 1984 the Defendant certified to the Plaintiff that it was in a position to deliver vacant possession of the said premises to the Plaintiff as of October 1, 1984 and in effect fixed the completion date for the said Agreement at no later than October 1, 1985.”
The letter of 15 September 1984 referred to in paragraph 8 was a letter to Mr Finzi from the same Mr Watson who had signed the Agreement purportedly on Montego’s behalf.
(i) it denied it had entered into any agreement with Universal for sale of the hotel (see paras. 3 and 4A);
(ii) it pleaded that Watson and Shroff had no authority from Montego to enter into any such contract for sale (paras. 4-6, 7 and 8);
(iii) it pleaded that if there was a contract of sale, the written agreement of 18 February 1982 did not accurately record what had been agreed in that the purchase price was agreed to be US$800,000 to be converted to Jamaican currency at the exchange rate prevailing on the date of completion (para. 4B).
“9. Save as is hereinbefore expressly admitted, the First Defendant denies each and every allegation contained in the Statement of Claim as if same [were] herein set out and traversed seriatim.”
The allegation in paragraph 8 of the amended Statement of Claim was not specifically pleaded to.
“12. … that the aforementioned Ralph Mairs refused to vacate the said property notwithstanding his agreement on or about the 15th day of September, 1984 to vacate the said premises by the 1st day of October, 1984 and that consequently, the said contract of sale could not be completed.”
“When Agreement signed Mairs was occupying the hotel.
Vendors did not certify to Plaintiff Company that they were in a position to deliver vacant possession of property.
Question: Did you require in writing certificate from Vendors that they were in a position to deliver vacant possession of property?
Plaintiff Company had received correspondence from Watson in this regard.
I visited the hotel several times since Agreement signed. On all visits Mair (sic) and his family occupied hotel.”
“Don’t remember if question of vacant possession discussed at meeting when US$800,000.00 was discussed.
Question: Suggest when vacant possession discussed Ralph Mairs was not at the meeting?
Answer: I don’t recall this.
Question: Suggest Gergel told you at that meeting he would speak to Mairs about vacant possession?
Answer: It is possible.”
Other witnesses were called and on 7 November 1996 Mr Miller closed Universal’s case. On 8 November 1996 first counsel for Mr Mairs and then Mr Sharschmidt for Montego submitted there was no case to answer and elected to stand on that submission. The judge accepted the submission made on behalf of Mr Mairs and dismissed the action against him with no order as to costs.
“Para. 8. Most important paragraph. Defendant certify in position to deliver vacant possession on October 1, 1984.
Evidence of Frinzi (sic) that Vendors did not certify in writing that they were in position to deliver vacant possession.
Destroys plaintiff’s case. Completely contrary to para. 8 of Statement of Claim.
It means plaintiff brought an action before the Contract could be completed.”
“Evidence of Finzi totally destroys that pleadings. [Reference to Johnson v Humphrey 1946 1 All ER 460].
Instant case express provision regarding completion. No room for anything to be implied. Plaintiff in his Pleading relied on the express provision and has failed to support the pleading with evidence. It follows that plaintiff has failed to establish a breach.”
And:“Asks Court to infer that plaintiff having said willing and able to complete and had notified defendant and had visited property and seen it occupied and that being subsequent to having received letter from Watson, that it was on that basis why action brought on 17/10/85 for Specific Performance.”
“Court to infer that letter of certification was sent.”
“Mr Finzi has denied that the defendant gave any such certificate in writing. Mr Sharschmidt submits that the plaintiff has not established a breach of the Agreement. However, Mr Finzi states in evidence that the Plaintiff Company had received correspondence from Watson in this regard.
He stated that Watson said he was a Director of the defendant Company, that Watson conducted the negotiations on behalf [of] the Company and actually signed the Agreement as a Director of the Company.
Although the 1st Defendant pleaded that Watson was not a Director, Mr Finzi’s evidence on this point was not challenged. In addition Finzi said that he had visited the premises and found it occupied by Mairs, that the plaintiff Company had sent a letter of Commitment from the Bank indicating its readiness and ability to pay the balance of the purchase price. The Writ was filed on the 17th October 1985. On this evidence on a balance of probabilities I draw the inference that the 1st defendant through Watson certified that it was in a position to deliver vacant possession of the property.”
And:“The averment in the pleading that a letter dated 15th September, 1984 was tendered to the plaintiff certifying that the vendors were in a position to deliver vacant possession as of October 1, 1984 was not proved. Indeed, the evidence of the plaintiff through its own witness denies this allegation.”
“Inferences must be drawn from proven facts. There are no facts proved from which an inference could be drawn that the 1st defendant/appellant through Watson had certified by letter dated September 15, 1984 that the appellant was in a position to give vacant possession. The fact that the plaintiff/respondent had received correspondence from Watson in this regard does not in any way prove the contents of that correspondence. Moreover, the admission of Winston Finzi leaves no room for any inference to be drawn.”
“But when [the pleader] has no instructions on a particular allegation, he covers it by a general denial of this kind; so that he can, if need be, put the plaintiff to proof of it at the trial.”
This passage can, in their Lordships’ view, have no application to the letter of 15 September 1984. How can the lawyers acting for Montego have had no instructions about the letter? It would have figured in the lists of documents. It was a letter from a director of Montego to the managing director of Universal. It was referred to inferentially in that director’s own pleading in the breach of warranty action.
“Did the vendor breach the contract by not giving to the purchaser such certification within the three years from the signing of the agreement in February, 1982 to the commencement of the purchaser’s suit against the vendor?”
As to this point Langrin JA, in reliance on Johnson v Humphrey (which had been referred to by Chester Orr J), concluded that under the 18 February 1982 agreement completion was wholly dependent upon the vendor’s willingness to specify a date by which vacant possession would be given and that, accordingly, “the contract in the instant case is unenforceable against the vendor, there being no date by which the vendor is bound to complete the contract”.