Douglas Crawley v. GR8 Properties One-BH Ltd and William Barish (CL 80 of 2024) [2025] TCASC 3 (24 January 2025)
Douglas Crawley v. GR8 Properties One-BH Ltd and William Barish (CL 80 of 2024) [2025] TCASC 3 (24 January 2025)
- Citation
- Douglas Crawley v. GR8 Properties One-BH Ltd and William Barish (CL 80 of 2024) [2025] TCASC 3 (24 January 2025)
- Media Neutral Citation
- [2025] TCASC 3
- Court
- Supreme Court of Turks and Caicos Islands
- Case number
- CL 80 of 2024
- Judges
- Lalbeharry, R
- Judgment date
- 24 January 2025
- Language
- English
- Type
- Judgment
- Case summary
-
By Writ and Statement of Claim filed on 10th July 2024 the Plaintiff claimed that by Agreements dated August 28th 2023 and September 15th 2023 the Defendants contracted with the Plaintiff for the purchase by him of parcel 60502/302 together with a unit constructed thereon (‘the Property’), for the purchase price of $950,000.00. Between the period August 2023 and October 2023, the Plaintiff paid the sum of $200,000.00 towards the purchase of the Property.
By notice in writing dated November 21st 2023 the Defendants’ Attorney purported to cancel the agreement pursuant to breach of certain terms in the September 15th agreement, forfeiting all sums paid by the Plaintiff. The Plaintiff claims that any failure to pay an instalment on his part was without intention to repudiate the agreement, he also alleges duress, without any supporting facts, against the Defendants.
The Plaintiff seeks specific performance of the Agreement. In the alternative he claims that the sum paid exceeds the deposit payable under the contract and therefore the total amount paid should not be seen as a penalty and therefore recoverable. The Defendant avers that the Plaintiff did not pay the balance of $750,000.00 by 20th November 2023 as contracted, therefore breaching the contract which provided that time was of the essence. The Defendant avers that pursuant to the contract he is entitled to forfeit the deposit and treat the contract as terminated.
On the 27th November 2023 the Plaintiff registered a caution against the Property. The Defendants counterclaimed for the removal of the caution and damages pursuant to s. 129 (i) of the Registered Land Ordinance including exemplary damages. In reply the Plaintiff asserts that the “time being of the essence” clause was waived by mutual agreement, therefore the failure to meet the 20th November deadline did not constitute a breach. He also asserts that the failure to pay was a result of unforeseeable delays in external financing which the 1st Defendant was aware of and that an extension of time was orally agreed.
In his Defence to the Counterclaim the Plaintiff avers that the caution was lodged to prevent the Property being dealt with in a manner adverse to the Plaintiff’s interests, he also denies that the Defendant has suffered any loss or damage including exemplary damages.
On 16th October 2024 the Defendants filed a summons applying for “final judgment on its claim for removal of the caution and interlocutory judgment on its claim for damages and also its claim to strike out the statement of claim herein and dismiss the action on the grounds set out in the affidavit of the Second Defendant”.
In support of their application they rely on the affidavit of William Barish, the 1st Defendant. Mr. Barish states that the Plaintiff defaulted on the agreement signed on 15th September 2023 which made reference to two payments before the signing of the agreement. He also states that there was never any agreement to extend time and that the Plaintiff was notified on 21 November 2023 that they had elected to forfeit the deposit.
Mr. Barish states that on 27 November 2023 his Attorney wrote proposing to extend the payment deadline retrospectively to 11th November 2023 in return for payment of interest, which Mr. Barish states was rejected. At paragraph 13 of his affidavit, he states “On or about the 10th May the parties agreed to revive the sale”. This date seems to be 1st May 2024. In any event Mr. Barish states that once again the Plaintiff failed to fulfil his obligations and as a result the agreement was terminated.
In response Mr. Douglas Crawley, the Plaintiff, by affidavit dated 22 November 2024 contends that there were two agreements one dated 28th August 2023 and the other 15th September 2023. He states that he paid the total sum of $200,000.00 towards the purchase of the Property. He also states on 21 November 2024 the Defendants through their Attorney cancelled the agreement and forfeited all sums paid. He states, he is ready and willing to carry out the terms of the agreement but the Defendant have refused to continue with the transaction.
He states that he seeks specific performance of the agreement or in the alternative relief against the forfeiture of the deposit paid “as the forfeiture is inequitable and unfair”. He also states that alternatively if he is found in breach, he contends that “the sum stipulated as a deposit is a penalty and irrecoverable (sic). It was not a genuine pre-estimate of the damage likely to be suffered, and the sum payable was grossly in excess of any loss the Defendants might suffer in the event of any breach”.
Held: The Defendants application for Summary Judgment on his Counterclaim is dismissed. To obtain summary judgment on a Counterclaim the facts of the claim against the Plaintiff must be clearly and factually pleaded. The Defendants in their Counterclaim, claims removal of a caution and damages including exemplary damages. No evidence has been provided as to the loss suffered and the extent of same. The Plaintiff avers that the caution was lodged to protect his alleged interest and to prevent the Defendants from dealing with the Property in an adverse manner. The Plaintiff puts the Defendants to strict proof in relation to the claim for damages. The main issue arising here is whether the Plaintiff does in fact have an interest in the said Property. I am not of the view that such issue can be summarily determined, the Plaintiff in his defence avers that the caution was entered to protect his interests in the said property and this was accepted by the Registrar of Lands. The Plaintiff has therefore fulfilled the requirement of having a defence and to have a triable issue determined.
An Ord. 14 application for summary judgment is for a party to obtain quick judgment where there is plainly no defence as stated in Home and Overseas Insurance Co. Ltd v Mentor Insurance Co. UK Ltd (In Liquidation) [1990] 1 WLR 153. In the present case, summary judgment requires the removal of the caution granted by the Registrar of Lands. In his defence the Plaintiff avers that he has a registrable interest in the Property. The issue to be determined in order to remove such caution is for the Court to decide whether the Plaintiff does in fact have a registrable interest, only if the Court finds that no such interest exists can the caution be removed. In order to make such a determination all the facts of the case should be ventilated.
For the Defendants to be successful in their claim for summary judgment they must prove that the Plaintiff does not have a defence and by extension, a registrable interest in the Property, and therefore the caution must be removed. Such proof is clearly a trial issue and cannot be decided summarily. The Defendants have therefore failed to prove their application for summary judgment.
The Defendants application to Strike out the Plaintiff’s claim is dismissed. In respect of the striking out application the authorities show that the standard set is a high one and should only be granted in cases which are plain and obvious and where there is no chance of success see Mylande Alfred v Van’s Auto Ltd. (CL 41 of 2022) [2022] TCASC 29 (26 August 2022). The Plaintiff has raised several issues both factual and legal which if successful would result in either an order for specific performance being granted or an order discharging the caution and forfeiture.
It is my view serious and important issues of fact and law were raised by both parties in this case and it cannot be said with certainty that the Plaintiff’s case could not succeed or that there is no arguable case. The Defendants have also disputed most of the claims raised by the Plaintiff. I am of the view that this matter should be disposed at trial. To do otherwise would result in this Court summarily deciding these issues without a forensic examination of the facts arising.
Costs to be paid by the Defendants to the Plaintiff, on the standard basis to be taxed in default of agreement.
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