B.B. Inc. Appellant v Lewis Hamilton Respondent
| Jurisdiction | Grenada |
| Judge | Thom JA |
| Judgment Date | 07 April 2017 |
| Judgment citation (vLex) | [2017] ECSC J0407-2 |
| Court | Court of Appeal (Grenada) |
| Docket Number | GDAHCVAP2015/0035 |
| Date | 07 April 2017 |
EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL
The Hon. Dame Janice M. Pereira, DBE Chief Justice
The Hon. Mde. Gertel Thom Justice of Appeal
The Hon. Mr. Paul Webster Justice of Appeal [Ag.]
GDAHCVAP2015/0035
Mr. Alban John, Ms. Thandiwe Lyle and Mr. Sasha Courtney for the Appellant
Mr. James Guthrie, QC and Ms. Linda Dolland for the Respondent
Civil Appeal — Contract for sale of land — Formalities pursuant to section 4 of Real and Personal Property (Special Provisions) Act of Grenada CAP 273 — Agreement or memorandum or note required to be in writing and signed by person to be charged — Whether email correspondence capable of satisfying requirements of section 4 — Applicability of Electronic Transactions Act of Grenada — Agreement on certain essential terms — Whether agreement valid and binding
The appellant, a company wholly owned by Mr. Bernardo Bertucci, sought to develop its land in Morne Rouge, Grenada by subdividing it and constructing villas for sale. On 6 th March 2013, Mr. Bertucci met with the respondent, Mr. Hamilton to discuss the sale of one of the villas ("Villa 5") to him. The parties thereafter exchanged several emails in relation to the sale.
In July 2013, Mr. Hamilton informed Mr. Bertucci that he was no longer interested in purchasing Villa 5. Mr. Bertucci responded indicating that there was already a binding contract between the parties since 8 th April 2013. The appellant instituted proceedings in which it claimed among other reliefs, damages for breach of contract. The appellant relied on the emails between Mr. Bertucci and Mr. Hamilton to establish the contract.
Mr. Hamilton, in his defence, denied that he had entered into a contract with the appellant and he further contended that there was no agreement, note or memorandum in writing signed by him as required by section 4 of the Real and Personal Property (Special Provisions) Act Cap. 273 ("the Act"). Mr. Hamilton subsequently made an application to strike out the claim and/or for summary judgment. The learned master granted the application for summary judgment and ordered the appellant to pay the respondent's costs. The learned master found that "signed" in section 4 of the Act must be given its ordinary literal meaning.
The appellant, dissatisfied with the learned master's finding, appealed the decision on several grounds but in submissions learned counsel Mr. John, summarised them as follows: (i) the learned master erred in her interpretation of section 4 of the Act when she found that an electronic signature did not meet the requirements of section 4; and (ii) the learned master erred in opting to grant summary judgment and not determining the application to strike out the claim and further she did not give any reasons for doing so. The respondent filed a counter notice contending that (i) the documents that the appellant relied on to establish a contract were all emails and therefore the requirements of section 4 were not satisfied, and (ii) the emails exchanged by 10 th April 2013 or at all, do not contain the requirements to establish a binding contract for the sale of land and therefore there was no agreement in writing within the meaning of section 4 which could be enforced.
Held: dismissing the appeal and awarding 75% of 2/3 of the costs in the court below to the respondent, that:
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1. Section 4 of the Real and Personal Property (Special Provisions) Act CAP.153 ("the Act") of Grenada contains two requirements which must be satisfied in order to maintain an action in relation to the sale of land or an interest in land. These are: (i) the agreement must be in writing, or there must be some memorandum or note of the agreement in writing; and (ii) the written document must be signed by the party against whom the action is brought. Thus, contracts for sale of land are unenforceable unless there is some written evidence of a contract which is signed by the person against whom enforcement is sought.
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2. Section 4 of the Electronic Transactions Act of Grenada expressly excludes from its application any law which requires writing, signatures or original documents for among other things, the conveyance or transfer of an interest in real or personal property. The effect of this provision is not that electronic documents cannot satisfy the requirements of section 4 of the Act as it does not prohibit electronic documents and signatures from being a 'writing' or "signature" within the meaning of section 4. Therefore, in relation to conveyancing and transfer of any interest in real or personal property, the well-established rules of statutory interpretation would continue to apply in interpreting those provisions.
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3. Section 4 of the Act has its genesis in section 4 of the UK Statute of Frauds (1677). The purpose of section 4 is essentially to protect persons from fraud by requiring a written record of transactions involving the transfer of land and interests in land rather than mere oral evidence. Section 2 of the Interpretation Act of Grenada defines "writing" in very wide terms to include printing lithography, typewriting, word processing, photography and all other modes of representing or reproducing words in visible form. This definition is wide enough to include electronic documents such as emails. Accordingly, email correspondence would not be contrary to the purpose of section 4. The learned master therefore erred when she adopted a very restricted approach and gave a literal interpretation to the meaning of the word "signed".
Joseph Mathew and Another v Singh Chiranjeev and Another [2009] SGCA 51 applied; Aquis Estates Ltd v Minton and another [1975] 3 All ER 1043 applied; Harriet Caton v R. R. Caton and T. B Caton (1867) L.R. 2 H.L. 127.
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4. Although section 4 requires a memorandum or note in writing, it is not necessary that every term agreed by the parties be included in the note or memorandum. It is imperative however that all the essential terms of the agreement except terms implied by law be included. The contents of the memorandum or note must show that a binding contract was concluded. Where essential terms agreed are omitted from the memorandum or note, the requirement of section 4 would not have been satisfied as the contract evidenced by the memorandum or note would not be the contract the parties entered into. The case at bar involved the sale of a plot of land and the construction of a villa within a communal property which placed additional obligations (such as conclusion of agreements with third parties) and restrictions on property owners. In those circumstances, the minimum terms of parties, property and price, as drawn from the emails, would not be sufficient to establish a binding contract. The language of both parties shows that they were still in negotiation. There were still several matters to be agreed and these matters cannot be classified as merely some minor details to be worked out. Therefore, the emails on which the appellant relied do not satisfy the requirement of section 4. It was open to the learned master to grant summary judgment on this basis.
Beckett v Nurse [1948] 1 KB 535 applied; Tweddell v Henderson [1975] 1 WLR 1496 applied; Megarry & Wade: The Law of Real Property 5 th edn., Sweet & Maxwell 1984, p. 580 cited.
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5. The summary judgment procedure and strike out procedure are two distinctly different procedures. The learned master having determined the application on the summary judgment procedure cannot be criticised for not also determining the strike out application. Even if the claim was not one which should have been struck out because it was not plainly bad in law, there was nothing to prevent the learned master from entering summary judgment on the ground that while it may not have been plainly bad in law, there was no reasonable prospect of success.
Dr. Martin Didier et al v Royal Caribbean Cruise Ltd SLUHCVAP2014/0024 (delivered 6th June 2016, unreported) followed.
This appeal concerns the interpretation of section 4 of the Real and Personal Property (Special Provisions) Act ("the Act") 1 and the Electronic Transactions Act. 2
The appellant is a company wholly owned by Mr. Bernardo Bertucci. It is the owner of certain lands in Morne Rouge, Grenada. The appellant sought to develop its land by subdividing it and constructing villas for sale. To this end, Mr. Bertucci determined that work on the foundation for the construction of one of the villas ("Villa 5") would commence in January 2013. He therefore held discussions in December 2012 with Ms. Sheila Harris, an attorney in Grenada, who arranged for Mr. Bertucci to meet with the respondent, Mr. Hamilton, to discuss the sale of Villa 5 to him. Mr. Bertucci met with Mr. Hamilton on 6 th March 2013 and thereafter they exchanged several emails in relation to the sale of Villa 5 to him.
In July 2013, Mr. Hamilton informed Mr. Bertucci that he was no longer interested in purchasing Villa 5. Mr. Bertucci responded indicating that there was already a binding contract between the parties since 8 th April 2013 and his company instituted proceedings in which it claimed among other reliefs, damages for breach of contract. The appellant relied on the emails between Mr. Bertucci and Mr. Hamilton to establish the contract.
Mr. Hamilton, in his defence, denied that he had entered into a contract with the appellant and he further contended that there was no agreement or note or memorandum in writing signed by him as required by section 4 of the Act.
The learned master granted the application for summary judgment and ordered the appellant to pay the respondent's costs. She made no finding in relation to the application to strike out the claim.
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