Brown and Brown v Burgess and Burgess

• Jurisdiction: Bermuda
• Judgment Date: 18 October 2002
• Date: 18 October 2002
• Docket Number: Civil Jurisdiction 2001 No. 217
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Philip Storr

Civil Jurisdiction 2001 No. 217

BETWEEN:

Amon James Brown

Dawn Enith Brown

Plaintiffs

and

Maxwell Ariston Burgess

Jamal Burgess

Defendants

Mr. Kieron F. Unwin for the Plaintiffs

Mr. J.A. Llewellyn Peniston for the 1st Defendant

Mr. Lawrence G. Scott for the 2nd Defendant

GL Baker Ltd v Medway Building & Supplies LtdWLR [1958] 1 WLR 1216

Clarapede v Commercial Union Association 32 WR 263

Tildesley v HarperELR 10 Ch D 396

Rawding v London Brick Co. (1971) KIR 207

Easton v Ford Motor Co LtdUNK [1993] 4 All ER 257

Charlesworth v Relay Roads LtdWLR [2000] WLR 230

Gale v Superdrug Stores plcWLR [1996 1 WLR 1089

Ketterman v Hansel Properties Ltd

Worldwide Corp v CPT Ltd [unreported 2 December 1998]

Rules of the Supreme Court O. 18, r. 8

Application by 1st defendant to amend defence — Specific performance — Damages — Oral agreement to purchase property — Pleadings — Late stage of proceedings

JUDGMENT

On the 27^th August 2002 I refused an application by the first defendant to amend his defence in the action by the plaintiffs against him and his co-defendant. I said that I would give my reasons later, which I now do.

By the Writ of Summons dated the 6^th July 2001 the plaintiffs claimed specific performance of an agreement for the sale and purchase of a property known as Marshine Cottage, 30 Long Ridge Pass, Devonshire. They also made ancillary claims for damages and other relief in respect of alleged improvements to that property. By the Statement of Claim delivered on the 13^th August the plaintiffs alleged that they had entered into an oral agreement, in or about June 1999, to purchase the property on terms that the first defendant would secure financing for the purchase of the property in the total purchase price. They also alleged various ancillary agreements relating to the improvement of the property which at that stage was not properly habitable. The plaintiffs aver that in furtherance of the agreement the plaintiffs, who were skilled in the building trade, had carried out various repairs and improvements to the property. The plaintiffs said that they were to be reimbursed for some of the work but that other work was to be carried out at the ultimate expense of the plaintiffs.

The plaintiffs further alleged that they carried out the work on the property as agreed and that in or about October 1999 the first defendant asked that they should pay him the sum of $1,500 per month to demonstrate that they were able to afford to make repayment of a prospective loan from the Bermuda Housing Corporation.

By their defence dated 28^th August 2001 the defendants admitted that there was an oral agreement in or around June 1999 as averred by the plaintiffs in their statement of claim. They denied that the terms of the agreement were as pleaded by the plaintiffs. The particulars of those averments are not relevant to the present application, but by Paragraph 4 of their defence the defendants explained the arrangement as follows:-

‘the purpose of the Agreement was that the Plaintiffs would work on the property and be paid for their labour which would be offset against their liability to pay rent to the First Defendant. This would bolster the Plaintiffs' attractiveness as an institutional borrower, and put them in a position where they could purchase the property once they were in a stable financial position.’

Presumably in furtherance of this proposal, the defendants then went on to plead that the first defendant had caused his attorneys to draw up a written agreement for sale and purchase of the property in November 2000 in anticipation of the sale of the property to the plaintiffs. The defendants went on to aver that it was the plaintiffs who had been in breach of ‘the agreement’ by telling the first defendant that they no longer wished to purchase the property from him ‘thus repudiating the agreement’. Additionally, the defendants went on to aver that if the court found that agreement had not been breached by the plaintiffs, there was a second oral agreement, in or around the summer of 2000, that the plaintiffs would purchase the property and that this statement of intent was a ‘misrepresentation’. Particulars were given of that alleged misrepresentation.

Both defendants made a counterclaim against the plaintiffs asserting, (inter alia), that the plaintiffs should have paid rent in respect of their occupation of the premises and claiming damages, rent and mesne profits. The defence ran to some 48 paragraphs.

The plaintiffs joined issue with the defendants on their defence and filed a defence to the defendants' counterclaim.

The matter proceeded on the basis of the matters as pleaded. Directions for trial were made on the 6^th December 2001 and the hearing was fixed to commence on Monday, 1^st July 2002, a time estimate of four days having been given. On 19^th June 2002 the first defendant gave notice of change of his attorney to Peniston & Associates and on the same day the second defendant gave notice of change of advocates to Scott & Scott. The original hearing date was subsequently vacated and the hearing was re-scheduled for Thursday, 26^th August 2002, again with a time estimate of four days.

The hearing commenced on that date and, for the plaintiffs, Mr. Unwin opened the case based upon the claim and defence as then pleaded. In particular he informed the court that, by their defence, the defendants admitted the existence of the oral agreement relied upon by the plaintiffs. Mr. Unwin then identified certain provisions of that agreement and said, ‘the dispute is as to the terms of the agreement …. We say that the plaintiffs never repudiated the agreement and that the property was sold from underneath them.’

Mrs. Brown gave evidence in chief directed to the provisions of the agreement and was cross-examined by Mr. Peniston for the first defendant and by Mr. Scott for the second defendant. At the commencement of the second day of the hearing Mr. Peniston applied for leave to amend the defence by deleting the whole of it with the exception of paragraph 38 and by substituting a defence pleading Section 3(1) of the Conveyancing Act 1983. He said...