republic of trinidad and tobago in the court...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL Civ. App. No. 226 of 2011 Claim No. CV2007-02132

BETWEEN

Nidra Williams

Appellant/Claimant AND

Colvin E. Blaize

Respondent/Defendant

*************** Panel:

A. Mendonca J.A.

R. Narine J.A.

P. Moosai J.A.

Appearances:

Ms. A. Sooklal for the appellant

Mr. S. Marcus SC for the respondent

DATE DELIVERED: 2nd May, 2016.

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I have read the judgment of Narine J.A. and agree with it.

A. Mendonca, Justice of Appeal.

I too, agree.

P. Moosai,

Justice of Appeal.

JUDGMENT

Delivered by R. Narine J.A.

THE FACTS:

1. This is an appeal from a decision of the High Court dismissing the appellant’s

claim for specific performance of an agreement for sale of a townhouse, and

ordering the appellant on the respondent’s counterclaim to surrender possession

of the townhouse, and to pay mesne profits of $3,000.00 a month, and

prescribed costs of $31,725.00.

2. The basic facts that are material to this appeal are largely undisputed and are set

out below.

3. The parties entered into a written agreement dated 14th October 2003, the

material terms of which are:

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The purchase price was $350,000.00 of which a deposit of 10% was to be

paid by the purchaser (the appellant) upon execution.

The balance of the purchase price was to be paid on the date fixed for

completion which was expressed to be on or before forty-five days from

the date of production by the vendor (the respondent) of a completion

certificate issued by the Regional Corporation in respect of the townhouse.

The respondent was required to complete the construction not later than

31st March 2004.

The respondent was required to provide “a good marketable title” to the

property free from encumbrances, and was required to discharge all

outstanding rates and taxes.

The vendor and the purchaser “may by mutual agreement extend the date

fixed for completion and for such extended date time shall be of the

essence of the contract”.

4. As noted above, the agreement provided for completion of construction by 31st

March 2004 and completion of the agreement for sale forty-five days after

production by the vendor of a completion certificate issued by the Regional

Corporation. However, after more than a year and a half had elapsed after the

time contemplated by the agreement for completion of the agreement, the parties

entered into a course of correspondence (as reflected in the Supplemental

Record of Appeal). The correspondence between the parties touches matters of

importance in this appeal, and I propose to set them out in some detail. The

correspondence begins with a letter dated 13th October 2005, from the

respondent to the appellant, in which he encloses, inter alia, a draft deed of

lease, and promised to provide land and building taxes receipts and a WASA

Clearance Certificate “as soon as they become available”.

5. By letter dated 9th December 2005, the appellant wrote to the respondent

advising that the Trinidad and Tobago Mortgage Finance Company (TTMF) had

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approved her application for a mortgage, and in order to complete the process

she required certain documents, among them:

Land and Building Tax Receipt for 2005;

A WASA Clearance certificate for the property, and

A completion certificate for the property.

The appellant further informed the respondent that she wished the process to be

completed by the 22nd December 2005, and that failure to complete by the end of

the year would result in her losing her tax benefit.

6. More than a year later, by letter dated 19th January 2007, the respondent wrote

to the appellant advising that he had now obtained “the final approvals and all

completion certificates from the relative authorities” and enclosing copies of

same. He further advised that completion of the agreement for sale would take

place forty-five days from the 19th January 2007, namely, 5th March 2007.

Enclosed with the letter was a completion certificate from WASA dated 30th

October 2006, confirming that the plumbing system on the property had been

inspected and tested and conformed to the requirements of the National

Plumbing Code of Trinidad and Tobago. (This was not a WASA Clearance

Certificate certifying that water and sewerage rates had been paid.)

7. By a written agreement dated 22nd February 2007, the respondent permitted the

appellant to enter into possession of the townhouse “until the completion or

rescission” of the agreement for sale. The document further provided that the

duration of the licence was for one month commencing 22nd February 2007. The

“monthly sum” of $410.00 payable in advance was to be paid for occupation of

the premises.

8. By letter dated 21st March 2007 from the respondent to the appellant, the

respondent purported to unilaterally increase the licence fee to $3,000.00 per

month, and offered to provide an indemnity with respect to all water rates for the

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period October 2006 to January 2007, pending receipt of a WASA Clearance

Certificate which he intended to request.

9. The correspondence thereafter took on a less amicable tone. The appellant

replied by letter dated 29th March 2007, indicating that TTMF would not accept an

indemnity from the respondent, and that the WASA Clearance Certificate was the

only document needed to complete the transaction. The letter is set out in full

below:

“Unit C Scott Bushe Street

Port of Spain

Attention: Colvin Blaize

March 29, 2007

Dear Mr Blaize

Further to your letter dated March 21, which I received March 29, I wish to

advise that I will not be intimidated or swayed by your legal manoeuvrings.

I have submitted all of the documentation required to complete my

mortgage transaction for Unit#3 Stirling Court to the Trinidad and Tobago

Mortgage Finance Company (TTMF). The only document needed to

complete the transaction is the WASA clearance certificate which must be

submitted to TTMF by you.

The officials at TTMF have confirmed that they will not accept the

indemnity which you have attached to your correspondence of March 21

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and have once again asked that you provide the WASA clearance

certificate as soon as possible.

I trust that in the interest of completing this transaction you will no longer

send me irrelevant correspondence but will instead focus your energies on

ensuring that the WASA clearance certificate reaches TTMF – Ms.

Charlene Williams in a timely fashion.

I look forward to your prompt attention to this matter.

Regards

Nidra Williams

cc. Charlene Williams, Trinidad and Tobago Mortgage Finance Company

Nidra Williams, 337 Singh Street Ext. Dinsley Village Tacarigua. 640 – 1185

(home) 683 – 5943 (mobile)”

10. By letter dated 4th April 2007, the respondent pointed out that the appellant had

not completed the transaction on 5th March 2007, and insisted that she must pay

the sum of $3,000.00 per month for occupying his property pending completion of

the sale. Significantly, the letter makes no mention of the WASA Clearance

Certificate, which the appellant had indicated in her letter of 29th March 2007,

was required to complete the transaction.

11. By letter dated 26th April 2007, the respondent called upon the appellant to

complete the transaction on or before 30th April 2007, time being of the essence.

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12. By letter dated 30th April 2007, Mr Carlyle Serrano, Attorney-at-Law, wrote to the

respondent on behalf of the appellant, indicating that his searches had revealed

an undischarged mortgage over the property, and requesting several documents,

including approvals from various state agencies, and the WASA Clearance

Certificate and the 2007 receipt for land and building taxes. The letter further

indicated that the draft lease did not pass any interest in the land, and invited the

respondent to revisit the lease. The letter further made reference to certain

outstanding works that were to be addressed in the townhouse, and affirmed the

appellant’s readiness and willingness to complete the transaction.

13. By reply dated 1st May 2007, addressed to Mr Serrano, the respondent purported

to forfeit the deposit, terminate the licence, and called upon the appellant to

vacate the townhouse within seven days. No mention was made of the matters

raised in Mr Serrano’s letter of 30th April 2007.

14. By letter of even date Mr Serrano responded pointing out that his requisitions had

not been addressed, and calling upon the respondent to revisit the matter. By

letter dated 2nd May 2007, the respondent replied, indicating that “all documents

that were necessary for the completion of the … transaction had already been

forwarded to your client and her prospective mortgagee”, and that there was

“nothing outstanding with respect to the completion of the transaction”. That

apart the respondent did not address any of the other matters in Mr Serrano’s

letter of 30th April. The respondent concluded the letter by stating that his

position remained the same as stated in his letter of 1st May and calling upon the

appellant to vacate the premises.

15. By letter dated 23rd May 2007, Mr Serrano wrote to the respondent, indicating

that he had received some of the documents required from a third party, and

requesting three documents still required for completion namely, a copy of the

lease executed in escrow by the appellant and endorsed by the mortgagee,

evidence of the issuance of a share certificate by Stirling Court Limited, and the

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2007 receipt for land and building Taxes. Mr Serrano further indicated that he

was willing to accept a commitment from the respondent to remedy the deficient

works, and that the financier was willing to disburse the cheque to complete the

transaction within three days of the production of the documents requested.

16. The respondent replied the following day enclosing the requested documents

and agreeing to waive his initial rescission of the agreement for sale and to

extend the time for completion of the agreement for sale to 29th May 2007, time

being of the essence.

17. By letter dated 28th May 2007, Mr Serrano raised two requisitions with the

respondent with respect to the deed of lease. The first concern was that the

mortgagee’s consent appeared to have been endorsed some twenty-one days

after the date of the lease itself. The second matter was that the lease did not

“define” the land that was being assigned to the respondent. There were other

minor amendments which Mr Serrano called upon the respondent to address

before the transaction could be finalised.

18. The respondent replied by letter dated 29th May 2007 dismissing the requisitions

raised as lacking in substance. In his view there was nothing to be rectified or

addressed, and he expected the purchaser to complete the transaction as he had

indicated in his letter of 24th May 2007, that is, on the very day he was writing –

29th May 2007.

19. The final letter on the record was dated 31st May 2007 from the respondent to the

appellant, purporting to rescind the agreement for sale, forfeiting the deposit,

terminating her licence to occupy the premises, and calling upon her to vacate

same within seven days.

20. The trial judge found that the appellant may have acted reasonably in querying

the issue “as to whether the assignment of the townhouse carried with it an

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assignment of land”. However, he went on to find that time being of the essence,

the respondent “was entitled to treat the agreement as at an end and forfeit the

deposit”.

21. The main issue in this case is whether the respondent was entitled as a matter of

law to rescind the agreement for sale and forfeit the deposit. In considering the

main issue, other sub-issues arise namely:

The issue of the WASA Clearance Certificate;

The issue of the date of the mortgagee’s consent to the deed of lease, and

The issue of the absence of a description of the land being assigned to the

purchaser in the deed of lease.

The WASA Clearance Certificate

22. Mention of this document was first made on 13th October 2005 by the respondent

in his letter to the appellant, promising to provide it as soon as it became

available. In December 2005, the appellant requested the respondent to provide

it as a matter of urgency, as it was required by the TTMF to complete her

mortgage transaction.

23. On 19th January 2007, the date on which the respondent called upon the

appellant to complete the transaction on 5th March 2007, the WASA Clearance

Certificate was still outstanding. Indeed, on the date set for completion, the

WASA Clearance Certificate was still not sent in response to Mr Serrano’s letter.

By letter dated 29th March 2007, the appellant again requested the respondent to

provide the WASA Clearance Certificate “as soon as possible” in order to

complete her mortgage transaction.

24. On 26th April 2007, the date on which the respondent called upon the appellant to

complete the transaction on or before Monday 30th April 2007, time being of the

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essence, the correspondence reveals that Mr Serrano still had not received the

WASA Clearance Certificate, as evidenced by Mr Serrano’s letter dated 30th April

2007 requesting the respondent to provide same (in addition to the 2007 receipt

for land and building Taxes).

25. On 1st May 2007, upon receipt of Mr Serrano’s request for the documents, and

his requisition with respect to the description of the land being passed under the

deed of lease, the respondent purported to rescind the agreement and forfeit the

deposit. On the say day, Mr Serrano responded to the effect that the purported

rescission and forfeiture of the deposit was untenable in law. By letter dated 2nd

May 2007, the respondent refused to change his position and indicated that he

had already forwarded all documents that were necessary for completion to the

appellant and her prospective mortgagee. He did not indicate however, when the

WASA Clearance Certificate had been provided.

26. By letter dated 23rd May 2007, Mr Serrano indicated to the respondent that he

had “recently received documentary evidence from a third party that satisfies

some of the requisitions on title raised”. He then requested three documents,

being the deed of lease executed in escrow, the share certificate issued by

Stirling Court Limited, and the 2007 receipt for land and building taxes. These

were supplied by the respondent under cover of letter dated 24th May 2007, by

which the respondent waived his “initial rescission” and extended the time for

completion to 29th May 2007, time being of the essence.

27. The trial judge inferred from the absence of mention of the WASA Clearance

Certificate in Mr Serrano’s letter of 23rd May 2007, that the WASA Clearance

Certificate was no longer an issue in the case. Mr Marcus, in answer to a

specific question as to whether the respondent had ever provided the WASA

Clearance Certificate to the appellant, did not directly respond to the question but

submitted that it was an inference to be drawn from its absence of mention in the

letter of 23rd May 2007.

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28. In Mungalsingh v. Juman [2015] UKPC 38, the Privy Council considered a

situation in which the vendor had not produced a WASA Clearance Certificate

and an up to date receipt for land and building taxes. The Board noted that

unpaid water rates and unpaid land tax can each result in distraint or even sale of

the property concerned under the Rates and Charges Recovery Act and the

Water and Sewerage Authority Act, and concluded that the trial judge was

correct in finding that in this jurisdiction, the vendor must provide these

documents before he is in a position to show good title. Accordingly, it was not

open to the vendor to serve a notice to complete, making time of the essence, on

the date that he purported to do so, since he had not shown good title by that

date.

29. On the documentary evidence before the court, the appellant had not received

the WASA Clearance Certificate or the 2007 receipt for land and building taxes

as at 26th April 2007, when the respondent purported to serve notice to complete

by 30th April 2007, time being of the essence. Indeed, if Mr Serrano’s letter is

accepted (and the trial judge made no finding to the contrary), as at 30th April

2007 Mr Serrano still had not received these documents.

30. However, in his letter dated 24th May 2007, the respondent purported to waive

his “initial rescission” and proceeded to fix 29th May 2007, as the date for

completion, time being of the essence. Under cover of this letter he had provided

the 2007 receipt for land and building tax. In my view, it was open to the trial

judge to draw the inference that as at 23rd May 2007, the WASA Clearance

Certificate was no longer an issue. However, there still remained the requisitions

raised by Mr Serrano with respect to the date of the mortgagee’s consent and the

issue as to whether the deed of lease as drafted conveyed any interest in the

land, and if so, the absence of a description of the land to be assigned to the

purchaser. There is also the further issue, as to whether, in all the circumstances

of this case the notice to complete within five days was a reasonable one, the

respondent not having shown a proper title up to 24th May 2007 (when he

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provided the 2007 receipt for land and building taxes), having set a date for

completion of construction no later than 31st March 2004, and having produced a

completion certificate of the Regional Corporation almost three years after that

date.

The obligation to show good title

31. It was an express provision of the agreement for sale dated 14th October, 2003

that the sale “shall be subject to the Vendor providing a good marketable title to

the development property free from encumbrances and the discharge by the

Vendor of all outstanding rates and taxes due on the development property prior

to completion”.

32. In Mungalsingh v. Juman (supra) the Board expressed the view that there

appeared to be no justification for a distinction between the “good title” and a

“good marketable title”, the latter being a title “which the purchaser is bound to

accept” (per Millet LJ in Barclays Bank plc v. Weeks Legg Dean [1999] QB 309

at 324 – 325), or a title which “the court will require before it forces a property on

an unwilling buyer” (per Lord Neuberger in Mungalsingh at paragraph 18).

33. However, the contract was silent on the obligation of the vendor to answer

requisitions and inquiries reasonably raised by the purchaser. This obligation is

expressly provided for in the United Kingdom by the Law Society’s Conditions of

Sale, the National Conditions of Sale and the Standard Conditions of Sale which

impose time limits for the making of requisitions by the purchaser and for replies

thereto by the vendor.

34. In the absence of any express term as to the duty of the vendor to answer

reasonable requisitions, there will be implied into the contract a term that the

vendor is under an obligation to properly answer all reasonable requisitions and

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inquiries within a reasonable time, so as to enable the purchaser to satisfy

himself on the matters raised, and to arrange his finances so as to be ready to

complete on the date fixed: Active Keen Industries Ltd. v. Fok Chi-Keong

[1994] 1 HKLR 396 at 405, a decision of the Court of Appeal of Hong Kong which

this court considers to be of highly persuasive authority. Likewise, in my view, in

the absence of an express provision in the agreement, a term will be implied that

the purchaser is under an obligation to make his requisitions within a reasonable

time. In this case no issue has been raised by the respondent with respect to the

time at which the requisitions were made. Instead the respondent has argued

that the appellant waived outstanding requisitions by letter dated 23rd May 2007.

In any event, having regard to the facts of this case, in my view the requisitions

were made within a reasonable time, some four days after the deed of lease

executed in escrow was provided.

The consent of the mortgagee

35. In his letter of 30th April 2007, Mr Serrano pointed out to the respondent that the

conveyancing practice was for the vendor to produce a copy of the deed

executed in escrow, so that the proposed mortgagee providing finance to the

purchaser would have evidence of a security. Mr Serrano also expressed

concern that the draft deed of lease did not pass any interest in the land. The

respondent replied by letter dated 1st May 2007, completely ignoring the

concerns expressed, and purporting to forfeit the deposit.

36. It was not until 24th May 2007, that the respondent provided the deed of lease

executed in escrow. Mr Serrano noted in his letter dated 28th May 2007, that the

consent of the mortgagee (RBTT Merchant Bank Ltd.) was dated some twenty-

one days after the date of the lease itself. Mr Serrano expressed the view that

since the consent was obtained some time after the creation of the lease, the

lease itself would be in breach of the existing mortgage.

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37. The trial judge found that it could reasonably have been argued that this was in

effect an encumbrance on the title, and the onus lay on the respondent “to

resolve the issue pursuant to his duty to demonstrate a good marketable title free

from encumbrances”. However, the judge went on to express the view that the

matter could easily have been resolved by simply updating the deed. The judge

also noted that the appellant had not yet executed the deed and suggested that

execution by the purchaser on the date set for completion, that is, 29th May 2007,

“would have meant that the consent was properly obtained”. Further the judge

opined that the matter would have been rendered of “academic relevance” since

the existing mortgage would have been released prior to completion. It follows

that in the judge’s view the requisition was a reasonable one which the

respondent was obliged to address. The trial judge found that the respondent

failed to do so. There was no appeal from these findings of the judge.

The requisition with respect to assignment of an interest in the land

38. The issue as to whether or not the draft deed of lease conveyed any interest in

land was first raised by Mr Serrano in his letter of 30th April 2007. He expressed

the view that the draft deed conveyed no interest in the land to the purchaser,

and suggested that the draft deed be rectified. The respondent’s response of 1st

May 2007, completely ignored the requisition, and in fact purported to forfeit the

deposit and terminate the licence.

39. By letter of 28th May 2007, Mr Serrano revisited the matter, pointing out that the

deed of lease executed in escrow did not define the land to be assigned to the

purchaser and again, requested that the deed be rectified. In his response dated

29th May 2007, the respondent advised “that this is a leasehold building scheme

and as I have absolutely no intention of entering into any explanations with

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another attorney about the law concerning these particular matters, I would just

indicate that the issue raised lacks substance”.

40. In my view it is unfortunate in the extreme that the respondent did not choose in

his response to address the requisition raised by Mr Serrano, who was acting

primarily for the proposed mortgagee (TTMF), which would require a precise

definition of its security. The respondent’s response was less than helpful, and

unfortunately came across as arrogant, if not arbitrary.

41. Interestingly, in paragraph 2 of his Defence, the respondent averred “that he

never agreed and/or impliedly agreed that the sale of the townhouse would

include the sale of the land upon which it is situated”.

42. Before the trial judge the respondent submitted that since the townhouse was

attached irremovably to the land, the land area and the townhouse were one item

of real property, and so the reference in the deed of lease to “Townhouse No. 3”

necessarily included the land area on which the townhouse stood. The trial

judge noted in paragraph 61 of his judgment, that, this submission appeared to

be at variance with the respondent’s pleaded case that he never agreed to

convey the land on which the townhouse stands. The trial judge made a finding

that as a matter of law the land on which the townhouse stands passes with the

townhouse under the deed of lease in the absence of any clear words to the

contrary. He arrived at this conclusion after a long and detailed analysis of the

law and the draft deed. The judge, however, expressed the view that “for clarity

and certainty, it may be preferable and even good practice to include ‘together

with the land on which it stands’ or some other such form of words” although as a

matter of law in his view, it was not necessary in this case, since the outlying

areas were to be held by Stirling Court Limited.

43. Having found that the assignment of the land was to be implied in the assignment

of the townhouse, the trial judge expressed the view that the appellant “may have

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acted reasonably in querying the issue based on the advice she had received

and the position taken by TTMF”. This view surely accords with good sense and

good law. The purchaser needs to be certain as to precisely what interest she is

acquiring under the deed of lease, and the intended mortgagee must be certain

as to the extent of the interest being conveyed to it as security. In my view, the

requisition was an eminently reasonable one which should have been addressed

by the respondent.

44. The response of the vendor in his letter of 29th May 2007 to the effect that he did

not intend to enter into any explanations with another attorney about the law

concerning this requisition, did not address the issue, and implied that the law on

this issue was so elementary that the requisition did not deserve a response.

45. The respondent’s pleading that he never agreed to sell the land upon which the

townhouse stands, together with his complete turnaround on this issue at the

trial, demonstrates that this was not as simple an issue as the respondent first

thought. Indeed, the lengthy analysis undertaken by the judge of this issue,

shows that it was a matter of some complexity.

46. In any event the trial judge expressly found that the appellant may have acted

reasonably in making the requisition. There was no appeal from this finding.

The judge did not go on to consider whether the response to the requisition was

adequate or reasonable. In my view, it clearly was not, having regard to the

shifting position taken by the respondent, and the complexity of the law on this

issue, as demonstrated by the judge’s analysis of the law.

Waiver

47. The issue of waiver was not pleaded in the Defence. Before us Mr Marcus

raised the issue and submitted that it arose on the evidence. His basic argument

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was that Mr Serrano’s letter of the 23rd May 2007 indicated a readiness to

complete the transaction within three days provided that the respondent

produced the three documents listed therein namely, the deed of lease executed

in escrow and endorsed by the mortgagee, evidence of the issuance of a share

certificate by Stirling Court Ltd. and the 2007 receipt for land and building taxes.

These documents were provided by the respondent under cover of a letter dated

24th May 2007. On this basis, Mr Marcus contends that the appellant had

impliedly waived any requisitions that were outstanding as at 23rd May 2007.

48. In my view, Mr Marcus’ reliance on the doctrine of waiver is not sustainable on

the facts. The requisition relating to the date of the mortgagee’s consent to the

lease could not have arisen until the provision of the deed of lease executed in

escrow which was delivered to Mr Serrano under cover of letter dated 24th May

2007. Mr Serrano’s requisition on this issue was made on 29th May 2007 which

in my view was within a reasonable time of receiving the executed deed of lease.

49. The requisition concerning the omission of a description of the land to be

conveyed was first made by Mr Serrano by letter dated 30th April 2007. The

requisition was totally ignored by the respondent in his response of 1st May 2007.

The respondent was reminded of the requisition outstanding by letter from Mr

Serrano dated 1st May 2007. In his response of 2nd May 2007 the respondent

again ignored the requisitions. It was only on 24th May 2007 that Mr Serrano

received the deed of lease executed in escrow. Having received the executed

deed of lease, Mr Serrano by letter of 28th May 2007 drew the respondent’s

attention to the relevant provisions of the executed deed and requested the

respondent to rectify the deed, since it did not define the land that was being

assigned to the appellant, before the cheque could be requested of the proposed

mortgagee. This was in essence the same issue raised by Mr Serrano in his

letter of 30th April and which it was apparent the respondent had not sought to

rectify. The response of the respondent by letter of 29th May 2007 was to flatly

refuse to address the requisition on the ground that it lacked substance.

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50. In my view, Mr Serrano was entitled to revisit the requisition having now seen the

deed of lease executed in escrow, and his earlier requisitions having been

ignored. Both requisitions in my view relate to matters of conveyance rather than

strictly matters of title. Requisitions as to matters of conveyance can be raised at

any time, and are not subject to any time limit: Barnsley’s Conveyancing Law

and Practice 4th edition page 354 and Contract and Conveyance 3rd edition by

JT Farrand at page 118.

51. In Chaitlal & Ors v. Ramlal [2003] UKPC 12, the Privy Council held that the

party serving the notice making time of the essence must himself be ready, able

and willing to complete at the date when the notice is served. In the absence of

an express term to that effect, such a term would in any event be implied by law.

It followed that since the vendor was in default not having supplied the purchaser

with certain information as to title, he was not entitled to serve a notice to

complete making time of the essence: see paragraph 28 of the judgment.

52. Having failed to address the requisitions which were in fact found by the trial

judge to be reasonably raised by the appellant (from which there was no appeal),

the respondent was not entitled to call upon the appellant to complete the

agreement on 29th May 2007 time being of the essence. It follows that his

purported rescission of the agreement for sale on 29th May 2007 was of no effect.

53. In this case the evidence was that the appellant was ready, willing and able to

complete the agreement subject to the outstanding requisitions being addressed

by the respondent. The appellant is therefore entitled to specific performance of

the agreement. However, before disposing of this appeal, there is one more

matter to be addressed. It concerns the licence agreement upon which the

appellant entered into possession of the premises.

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54. On 22nd February 2007, the parties signed a written agreement under which the

appellant entered into possession of the townhouse upon payment of a monthly

licence fee of $410.00 per month. It was expressly provided that:

“(a) The Licensor hereby grants unto the Licensee licence to

occupy the said premises from the 22nd day of February

2007 until the completion or rescission of the Principal

Agreement.

(b) This licence would be for a duration of one (1) month from

22nd February 2007.”

55. As noted by the trial judge, at first glance these provisions appear to be

inconsistent. However, the judge resolved the issue by reference to the

anticipated date of completion which was then 5th March 2007. On 22nd February

2007, it was contemplated under clause (b) that for practical purposes the licence

would be for one month. However, in the event that the agreement could not be

completed within one month, clause (a) would be triggered, extending the

duration of the licence until completion or rescission of the agreement for sale, at

a monthly licence fee of $410.00 payable in advance. This interpretation of the

licence agreement by the trial judge has not been challenged on appeal.

56. Subsequently, by letter dated 21st March 2007, the respondent purported to

unilaterally vary the licence agreement by imposing a monthly fee of $3,000.00.

The appellant refused to pay this sum.

57. In his judgment, having found that the respondent was entitled to rescind the

agreement, thus bringing the licence to an end, the trial judge ordered the

appellant on the respondent’s counterclaim to pay mense profits from 15th June

2007 in the sum of $3,000.00 per month, which the judge found be a reasonable

sum for use and occupation of the premises, based on a valuation report which

estimated the gross rental value of a similar townhouse to be $3,500.00. The

appellant has not paid anything pursuant to the Judge’s order.

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58. This court has come to the conclusion that the judge was wrong in finding that

the respondent was entitled to serve notice to complete making time of the

essence, and that his purported rescission of the agreement was of no effect. It

follows from this decision that the licence agreement made on 22nd February

2007 remains in effect until completion or rescission of the agreement. The

question of mense profits for wrongful occupation does not arise. The sum to be

paid pursuant to the licence agreement (which could not be varied unilaterally as

the respondent purported to do) is $410.00 per month.

59. On 27th October 2011 the appellant applied for a stay of execution of the judge’s

order pending appeal. On 12th December 2011, Kangaloo JA granted a stay on

condition that the appellant pay to the respondent the monthly sum of $2,500.00.

To date the appellant has made payments under the order in the sum of

$135,000.00.

60. Mr Marcus submitted that it would be “oppressive” for this court to “interfere with”

the sum of $135,000.00 paid to the respondent pursuant to the order of Kangaloo

JA. This was a sum paid to the respondent as a condition of the grant of a stay

of execution. The order was not made pursuant to any determination by

Kangaloo JA of the rights of the parties. These rights have now been determined

by this court on this appeal. I have found that the sum payable by the appellant

to the respondent under the licence agreement is $410.00 per month. There is

therefore no legal basis for the retention of the sum of $135,000.00.

DISPOSITION:

61. It follows that this appeal must be allowed. The orders of the trial judge are set

aside. The court declares that the agreement for sale dated 14th October 2003

was intended to pass a 999 year leasehold tenure in the townhouse and the land

of 21

upon which the townhouse stands. The court orders specific performance of the

agreement to be completed within twenty-eight days of the date hereof. The

counterclaim is dismissed. The appellant must pay to the respondent a monthly

sum of $410.00 commencing 22nd February 2007 to the date of completion of the

agreement for sale. The sum of $135,000.00 and any additional payment that

may have been made by the appellant pursuant to the order of Kangaloo JA

made on the 12th December 2011 is to be set off against monies due to the

respondent for the balance of the purchase price and the licence fees payable to

the respondent by the appellant. Parties to file submissions in writing on costs

on or before the 17th May 2016.

Dated the 2nd day of May, 2016.

R. Narine Justice of Appeal

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