Gregory Michael Anthony Lee v Ian Harrison
| Jurisdiction | Turks and Caicos Islands |
| Judge | M.M. Agyemang CJ |
| Judgment Date | 21 January 2022 |
| Docket Number | ACTION NO. CL 1/2018 |
| Court | Supreme Court (Turks and Caicos) |
M.M. Agyemang CJ
ACTION NO. CL 1/2018
IN THE SUPREME COURT OF THE TURKS AND CAICOS ISLANDS CIVIL
Ms Denise Kitson QC; WITH HER, Ms Anna Kay Brown FOR THE PLAINTIFF (INSTRUCTED BY PHILIPSON D'ARCUEIL)
Mr Jonathan Katan QC FOR THE 1ST – 4TH AND 6TH DEFENDANTS.
Mr. Mark Harvey FOR THE FIFTH DEFENDANT
In summary this dispute arises out of a business transaction gone awry.
The plaintiff, a businessman, entered into an agreement with a group of persons described collectively as the Vendor (the 1 st–4 th and 6 th defendants), to purchase land and a business (Dock Direct Ltd) as a going concern. At all material times. The 1st defendant represented the Vendor in the transaction.
An agreement was signed, and a deposit was paid in accordance with the terms of the agreement (referred to variously as ‘the Agreement’, ‘the executed Agreement’, or ‘the existing Agreement’). A closing date was set for completion when the balance of the purchase price would be paid.
Before the closing date arrived, the plaintiff, having found out that the 6 th defendant (one of the parties included in the description of Vendor) had an existing loan at the bank, proposed to the 1st defendant a transaction in which he would assume the debt in lieu of paying the purchase price.
This was subject to the agreement of the bank to which the money was owed: the First Caribbean Bank (FCIB).
Upon the approach of the plaintiff, the 1st defendant, a director and shareholder of the 6 th defendant indicated that he had no objection in principle to the proposal, provided the bank would agree to it.
Because the possibility of the debt takeover was to be explored with the FCIB, the 1 st defendant facilitated the plaintiff's approach to the bank to commence discussion towards debt assumption.
The meeting at which this discussion took place was not attended by their lawyers. That same day however, the attorney of the plaintiff (Mr. d'Arceuil) reached out to the attorney of the Vendor seeking a draft amended Agreement in terms of the alleged variation in the sale agreement for debt assumption that the plaintiff alleged.
The defendants' attorney (5th defendant) rejected that version of events and clarified that while the 1st defendant (as representative of the Vendor) was amenable to the debt-takeover transaction, he would not consent to any variation of the terms of their agreement, until there was a firm assurance from the bank that the debt takeover was possible.
From this point, the parties appeared to talk at cross-purposes, the plaintiff insisting per his attorney Mr. d'Arceuil, that there had been a variation, the defendants refuting such per their attorney the 5 th defendant. What followed was a series of communication (or miscommunication) between the parties.
A month after the closing date, the purchase price not having been tendered or the debt assumed, the defendants served a default notice on the plaintiff.
Sometime after the default notice, the 1st defendant, paid off the 6 th defendant's debt at the bank.
A little over two months after the said default notice, the purchase price not having been tendered or the loan assumed, the defendants served a notice of termination on the plaintiff.
The termination led to the forfeiture of the deposit paid, in accordance with the agreement that was signed by the parties.
About three months after the notice of termination, the plaintiff lodged a caution over land belonging to the 2nd defendant (included in the Agreement), prohibiting all further dealings by the defendants over the land, with the Registrar of Lands. A challenge by the defendants was not successful.
This is what has led to the instant suit by the plaintiff and a counterclaim by the 2nd defendant over whose land the caution was lodged.
I set out the plaintiff's claim in full:
“1. Specific performance of the agreement of sale dated January 22, 2016, as varied between March and April 2016.
2. Rectification of the terms of the agreement of sale dated January 22, 2016, in accordance with paragraphs 23(a) (b) of the Statement of Claim.
3. In the alternative, an account of the deposit paid of …US$250,000, and a refund of such amount thereof as is found to be due plus interest thereon from 22 January 2016 to the date of payment at a rate of 1% above the Commercial Bank's prime lending rate.
4. Damages against the 1st to 4th defendants inclusive of the 6th Defendant for breach of contract and or fraud in addition to, or in view of specific performance.
5. In addition to or in the alternative, damages against the 1st to 4th and 6th Defendants for unjust enrichment.
6. An accounting from the 1st and Defendants for unjust enrichment and or waste in respect of the Westminster property.
7. Damages against the 5th Defendant for breach of trust.
8. In addition to or in the alternative, damages against the 1st to 6th Defendants for the plaintiff's loss of bargain.
9. Costs.
10. Further relief.”
To provide greater detail regarding the matters already recounted, I commence with a description of the parties:
In his pleading, the plaintiff averred that he (Gregory M.A. Lee) was a businessman, and was the intended Purchaser of land the subject of an agreement for the sale of land between St James Holdings Limited and the 1 st to 4 th and the 6 th defendants (“the Agreement”).
The 1st defendant (Ian Harrison) is a director of the 2nd and 6 th defendants.
The 2 nd defendant (Westminster Property Ltd) is a Turks and Caicos Islands company and the owner of parcels of land described as 60607/35, 36, 47, included in the property for sale under the Agreement.
The 3rd defendant (Apex Ltd,) is a Turks and Caicos Islands company and the lessee with an option to purchase land described as 60605/74–77, also included in the property for sale under the Agreement.
The 4th defendant is a director/shareholder in the 6 th defendant as well as the 3rd defendant, and an intended vendor along with the other defendants.
The 5th defendant (Neil Coles) is an attorney in the firm of Miller Simons O'Sullivan (MSO) with conduct of the sale transaction, on behalf of the Vendor.
The 6th defendant is also a Turks and Caicos Islands company whose shares (or assets as the case may be) were to be part of the property included in the sale agreement.
The case of the plaintiff against the 1–4 and 6 defendants, (defendants or Vendor) is that although they had agreed to a variation of the terms of the Agreement they executed on the 22nd of January 2015, and despite the plaintiff having been at all material times able, ready and willing to complete this “varied” agreement, the said defendants had wrongfully terminated the Agreement and unlawfully retained the deposit.
The plaintiff alleges that in purporting to terminate the contract, the 1st to 4th and 6th defendants knew, or ought to have known that the Agreement did not reflect their agreement, being: the true size of the land offered for sale thereunder, or even the true Purchaser who was the plaintiff, instead of the Purchaser described in the agreement: St James Holding Ltd a company that was never in existence.
The plaintiff further alleges that the defendants also breached the contract between them, by their seeking to enforce the executed Agreement when to their knowledge, it was allegedly wrongly signed on behalf of the plaintiff by Mr. Allan Hutchinson who allegedly had no authority to do so.
The plaintiff also alleges fraud against the said defendants which fraud is said to be founded on the defendants' alleged wrongful reliance on the Agreement executed on 22nd January 2016 which he maintains was flawed, and their refusal to acknowledge an alleged negotiated new agreement reached between the parties for the assumption of the 6 th defendant's debt at the FCIB Bank, for the alleged purpose of unlawfully enriching themselves with the deposit of US$250,000, paid under it.
The crux of the plaintiff's case is that the defendants wrongfully terminated the Agreement they had executed when they refused to recognise the variation of their executed Agreement, and furthermore, unreasonably refused to provide the plaintiff with an amended Agreement which would have enabled the plaintiff to access the funding to complete the transaction.
He contends that it was necessary for the executed Agreement to be amended to reflect the alleged oral agreement to vary the terms of their Agreement and to correct errors, some appearing on the face of the Agreement, others, inherent in the Agreement. The errors of the first kind were: the wrong name of the Purchaser and the size of the land, the other kind, were matters that had allegedly come up or into being, after going to contract, being, the lack of proper accounts of the 6 th defendant and the need for a separate transaction for the purchase of the 3 rd defendants land (Apex lands) leading to the abatement of the purchase price.
Against the 5th defendant, it is the plaintiff's case that he acted improperly and/or in breach alleged of his duty as alleged trustee of the Plaintiff's funds which he had allegedly received prematurely as the deposit in the transaction, for allegedly advising and/or otherwise inducing or facilitating his clients to renege on and/or breaching and/or failing to complete the alleged new agreement reached between the parties although the plaintiff had part-performed his obligation. The plaintiff alleges more particularly, that the 5th defendant erred by “attempting to enforce an invalid, inaccurate and unenforceable document as an...
To continue reading
Request your trial