Brady v Brady; Re Brady (Deceased)

• Jurisdiction: Bermuda
• Judgment Date: 13 January 2006
• Date: 13 January 2006
• Docket Number: Civil Jurisdiction 2004 No. 20
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Ground, J

Civil Jurisdiction 2004 No. 20

BETWEEN:

Re Brady

Lawrence Brady

Plaintiff

and

John Brady (Administrator of the Estate)

Defendant

Ms M Lewin for the Plaintiff

Mr R Horseman for the Defendant

The following cases were referred to in the judgment:

Bennett v BrumfittELR (1867) LR 3 CP 28

Goodman v J Eban LtdUNK [1954] 1 All ER 763

Steadman v SteadmanELR [1976] AC 536

Bain v Fothergill (1874) LR 7HL 158

Conveyancing Act 1983, s. 3

Specific performance for sale of property — Intestacy — Whether agreement existed to sell property — Whether part performance — Whether good title existed

JUDGMENT of Ground, J

INTRODUCTION

1. By this action the plaintiff seeks specific performance of an agreement made ‘on or about 8^th September 2002’ for the sale to him of a house and land known as ‘Mount Caprica’, 7 Sousa Estate Road, Devonshire, Bermuda. At the time of the alleged agreement the vendor was Samuel Henry Percy Brady (“Percy”), who died shortly thereafter and before it could be performed. Percy died intestate and his son, the defendant John Brady (“John”), is his administrator, having been granted Letters of Administration on 7^th November 2003.

2. By his Defence, John denies that there ever was an agreement to sell the property. In the alternative he then pleads that, if there was, then:

• a. Percy did not have good title to sell, as the property was jointly owned with his ex-wife, Jean Brady;

• b. the contract is unenforceable as there is no memorandum in writing signed by Percy, as required by section 3 of the Conveyancing Act 1983; and

• c. the agreement was subject to a condition precedent that Percy notify John of the agreement, which condition was never fulfilled.

3. By a late amendment, which I allowed at the commencement of the trial, the plaintiff added a plea of part performance to counter the defendant's reliance on section 3 of the Conveyancing Act. The plaintiff pleads the following acts of part performance:

• a. the plaintiff instructing his lawyer ‘to assist in the conveyance of’ the property, and paying for his services in connection with the conveyance;

• b. the plaintiff requesting and Percy sending to him the deeds of the property;

• c. Percy telling John about the sale and requesting him to remove his belongings from the property; and

• d. the plaintiff informing an official of the Health Department about the sale and that he would be responsible for cleaning up the property.

BACKGROUND

4. The dispute is essentially a family matter, and is between successive generations of the same family. The plaintiff is the youngest of a family of twelve children. The deceased, Percy, was the eldest. The defendant, John, is Percy's son, and hence the nephew of the plaintiff. The property had been Percy's home, and he had lived there with his wife Jean until their divorce on 29^th July 19801. Percy and his son, John, had also carried on a business of salvaging scrap metal on the property. However, there came a time when they moved to the United States, leaving the house unoccupied. The evidence is unclear as to when, but the plaintiff says that Percy left the house in the late 1990s or 2000, and rarely returned thereafter. At the time with which we are concerned Percy was living in Vermont with his sister, Mildred, and John was living in Kentucky with his wife, Jessica, who was also a family member, being John's cousin and the daughter of one of the plaintiff's brothers, Teddy. John and Jessica are now divorced.

5. After Percy and John moved to the United States the property was left empty and became run-down, and eventually a health hazard because mosquitoes were breeding in the sizeable collection of scrap and other things which Percy and John had accumulated and left on the premises. Indeed their collection of things had spilled over on to the neighbouring premises, which were also family owned: the 93 year old matriarch of the family, Florence Brady, lived at 3 Sousa Estate Road, next to the subject property, and one of her daughters lived on the other side. Because of the mosquito problem, Mr. David Kendall, the Government Health Officer responsible for the control of such things, became involved, although his efforts were hampered by an initial difficulty in tracking Percy down. Meanwhile, on 23^rd August 2002, an article appeared in the daily newspaper reporting on the problem2.

6. It seems that the newspaper article came to Percy's attention. The plaintiff's case is that it caused him some distress, exacerbated by the fact that he had recently had a minor stroke, and was not able himself to do anything about cleaning up the property. There was then an e-mail exchange between the plaintiff and the defendant's wife, Jessica, in Kentucky about whether or not the defendant would be coming to Bermuda to clean up the house, and in that Jessica mentioned that they had had an offer of $150,000 for the property as it stood. The plaintiff says that he felt that was too low, and he communicated that to his sister Mildred, for onward transmission to Percy. He says that he also proposed that he get a valuation and said that, if the valuer's estimate was acceptable to him, he would buy the property. He says that he then immediately arranged for a valuation with a firm acceptable to Percy, and they produced a short opinion as at 10^th September 2002 (which was communicated under cover of their letter of 11^th September) valuing the property at $400,000 on a comparables basis.

7. In the interim, before that formal valuation arrived, the plaintiff says that he was in constant telephone communication with Percy negotiating his purchase of the property, and that they reached an oral agreement on the telephone of 5^th September 2002, which the plaintiff then says that he memorialized in a letter of 6^th September, which he posted to his brother. The price was $300,000, and the plaintiff says that he had arrived at that

himself, based upon some comparables known to him and what the valuer had told him (this being before the report was in hand).

8. At the end of September the defendant came to Bermuda, arriving on 30^th September,staying for about a week, and visiting the property. In the meantime the plaintiff says that he had also asked Percy to send him the deeds, so that his lawyer could begin work on the conveyancing, which he says Percy did, and they arrived by ordinary post on Friday 11^th October. However, on Saturday 12^th October word came that Percy had been taken ill. Events moved swiftly after that. Percy died on 13^th October. The plaintiff and his brother Teddy travelled to Vermont...