Paynter and Paynter v Holder and Holder
| Jurisdiction | Bermuda |
| Judgment Date | 04 April 1986 |
| Docket Number | Civil Appeal No. 6 of 1985 |
| Date | 04 April 1986 |
| Court | Court of Appeal (Bermuda) |
In the Court of Appeal for Bermuda
In the Court of Appeal for Bermuda
In the Court of Appeal for Bermuda
In the Court of Appeal for Bermuda
Blair-Kerr, P
Henry, JA
Summerfield, JA
Summerfield, JA
Civil Appeal No. 6 of 1985
Civil Appeal No. 6 of 1985
Civil Appeal No. 6 of 1985
Civil Appeal No. 6 of 1985
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W Francis for the Appellants
D Kessaram for the Respondents
Raineri v MilesUNK [1980] 2 All ER 145
Green v SevinELR (1879) 13 ChD 589
Riches v Westminster BankUNK [1943] 2 All ER 725
Bushwall Properties Ltd v Vortex Properties Ltd.UNK [1975] 2 All ER 214
Fansa v American Express International Banking Corp, The Times 26 June 1985
Interest and Credit Charges (Regulation) Act 1975, s. 9, 10
Rules of the Supreme Court Order 20, rule 6
Sale of land — Claim for interest due on purchase price to date of completion — Appeal against judge's award of $9,621.99 interest — Plaintiffs had right of election re late completion; either forfeit deposit or claim of interest — Cross-appeal by plaintiffs against judge's refusal to award interest from completion to date of judgment — Whether essential to claim interest in statement of claim — Whether court could award ‘interest on interest’
On the 13th December 1982, the plaintiffs and defendants entered into an agreement for the sale of a three-apartment house at Crawl Hill, Hamilton. Under clause 3 the property was sold with vacant possession of one apartment only, the one occupied by Leonard Holder himself. He had let the other two apartments for $290 and $415 per month and the sale was subject to these two existing tenancies. The purchase price was $500,000. The agreement provided for the payment of $50,000 to the plaintiffs by the defendants by way of deposit, and the plaintiffs received that sum in January 1983. The completion date was stated in clause 4 of the agreement to be 31st May 1983.
General Condition 10 in Schedule C of the agreement provided as follows:
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‘10. If completion of the sale of the property shall not take place as herein provided then if such failure to complete shall not be attributable wholly to the fault of the Vendor the Vendor as he shall elect may either charge interest on the balance of the purchase price then outstanding at the rate of Seven per cent (7%) per annum from the date fixed for completion hereunder until the actual completion date or alternatively upon giving Twenty-eight (28) days notice in writing to that effect to the Purchaser and the Agent (if any) the Vendor my terminate this Agreement and in such case shall be entitled (on expiry of such notice) to have paid to him one half of the deposit by the Agent (where applicable) as agreed liquidated damages for the Purchaser's breach of contract aforesaid and the Agent shall be entitled to obtain one half thereof in remuneration for his efforts on behalf of the Vendor in this transaction.’
Completion did not take place on 31st May 1983 as provided in clause 4 of the agreement because the defendants could not obtain the necessary finance; and on 2nd June 1983, the plaintiffs' attorneys (Cox and Wilkinson) wrote to the defendants' attorneys (Richards, Francis and Francis) the following letter:
‘We note the agreement dated 13th December, 1982 under which our clients, Mr. & Mrs. Holder agreed to sell to the Paynter family the above captioned property, and that completion under Clause 4 of the contract was stated as 31st May 1983. In accordance with our clients instructions we draw your attention to General condition 10 in Schedule C of the agreement. We note that completion has not taken place as of the date hereof and write to advise you that our clients will be claiming interest on the un-paid balance of $450,000.00 at the rate of 7 per centum per annum from 31st May, 1983 until the date of actual completion.
Nothing contained in this letter shall diminish any other rights which our clients may have by agreement or under the general law relating thereto.’
As completion had not taken place by 7th September 1983, the plaintiffs' attorneys wrote another letter to the defendants' attorneys, as follows:
‘We refer to the Agreement dated 13th December, 1982 under which our clients, Mr. & Mrs. Holder agreed to sell to the Paynter family the above captioned property. We are now instructed by our clients that in the event completion under the agreement has not taken place on or before 31st October, 1983, our clients will after that date treat the agreement as terminated and the deposit forfeited to our clients. We request you to draw to the attention of your clients the effect of the above notice in making time of the essence of the contract and, furthermore, that considerably longer notice is being given than was called for in General Condition 10 of the Sales Contract.’
Completion took place on 14th October 1983, and the defendants' attorneys submitted to the plaintiffs an invoice or statement of account which contained the following entries:
‘N.B. Amounts still outstanding
| Land Tax for period from 1st July to 14th October 1983 due yourselves by Mr. and Mrs. Paynter | $275.20 |
| Interest due on $450,000 from 31st May to 13th October 1983 due yourselves by Mr. and Mrs. Paynter | $11,736.99 |
| $12,012.19’ |
On 20th December 1983, the plaintiffs' attorneys wrote to Mrs. Paynter as follows:
‘We act on behalf of Mr. and Mrs. Leonard Holder who duly completed a contract for the sale of property in Crawl Hill, Hamilton Parish to yourself and two other persons above-named on 14th October 1983.
On completion the land tax was outstanding in the sum of $275.20 which should have been reimbursed by you to our clients together with interest on $450,000 from 31st May to 13th October 1983 amounting in all to $11,736.99 and totalling $12,012.19.
We are firmly instructed by Mr. and Mrs. Holder that if this sum is not settled by payment in full to these offices within fourteen (14) days from the date of this letter, our clients will commence such action in the Supreme Court as may be necessary to recover the sums due without any further notice to you or to the other parties to the contract …………..’
On 29th December 1983, Mrs. Ruth Paynter wrote to Mr. Orman of Cox & Wilkinson enclosing $275.20 in payment of the land tax, but denying that the defendants owed the sum of $11,736.99, interest on the $450,000.
On 11th January 1984, the plaintiffs' attorneys replied enclosing a copy of their letter of 2nd June 1983 together with a copy of the defendants' attorneys invoice dated 14th October 1983.
On 27th January 1984, the defendants' attorneys wrote to the plaintiffs' attorneys saying, inter alia:
‘……. the date for completion was amended by the terms of your letter of 7th September, and therefore our Accounts Department was mistaken in adding a note to your clients' statement of account that interest was due on $450,000 from 31st May to 13th October 1983.’
Proceedings were instituted by specially endorsed writ dated 16th March 1984. The plaintiffs claim was for the $11,736.99, being...
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Young v Young
...by mutual consent to extend the completion date even further. An example of such contractual terms may be found in Paynter -v- Holder [1986] Bda LR 10 (Court of Appeal). 31 Had the parties applied their minds to it and in order to give efficacy to the contract, a shorter period would have b......
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Young v Young
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