Rowe JA, Taylor JA, Zacca JA
IN THE
BETWEEN
MICRO IND.
COURT OF APPEAL OF THE CAYMAN ISLANDS
Civil A
(Grand Court Ca.
JUSTRIES LTD.
30-09-03
LANDS
appeal No. 21 of 2003
use No. 785 of 2002)
Plaintiff/Respondent
AND
CONDOCO
BEFORE: The R The H The H
Julian Malins, Q.C.,
Raymond Alberga, Q.C.
Heard: July 28, 2013
BRAND CAYMAN RESORT LTD.
Honourable Mr. Justice E. Zacca, President
honourable Mr. Justice I. Rowe, Justice of Appeal
honourable Mr. Justice M. Taylor, Justice of Appeal
and Kyle Broadhurst, for the Appellants
C, and Anthony Menzies, for the Respondents
33 Reasons released: September 30, 2003
Defendant/Appellant
TAYLOR, J.A.
The appellant
performance of the s
complex now being b
(WORD)
REASONS FOR DECISION
purchaser comes to this court for a second time
agreement for sale of a condominium apartment
built by the respondent on Seven Mile Beach.
he seeking specific
in the Ritz Carlton
In the first act
the floor area of the
attached plan. In di
judgment in favour
performance should
construction of the a
smaller suite than th
-2-
tion the purchaser sought specific performance of the c
unit, which appears in materially different figures
ealing with this 'horizontal' dispute, a Grand Court
of the purchaser but deferred for trial the questi
on agreed, or only damages. This court upheld the ju
greement, found no basis on which the purchaser cou
at contracted for, and held that specific performance
contract as it relates to
in the contract and
judge gave summary
on whether specific
legal decision on the
d be provided with a
should therefore be
ordered summarily.
the present second
floor-level siting - th
In issue in the
apartment on the fou
the light of a subseq
to seven storeys. The
contending that the c
the suite contracted for. During the hearing of the appeal we were told that the
ection, one seeking specific performance of the agri-
vertical' location of the apartment.
s second action is the meaning of the term of the ag
th floor of what was to have been a five-storey structu-
rent decision by the vendor to increase the height of th
purchaser claims the right in these circumstances to ha
onder is one for "sub-penthouse" accommodation.
or is one located three stories up from the bottom or o
purchaser had started
ment with respect to
reement locating the
e, when constructed in
e building from five
ve a sixth-floor unit,
The issue is whether
he storey down from
the top. The action of
vendor the right to do
The purchaser
by the vendor in ad
number of units whi
contends that this wo
that promised by the a
(WORD)
alls into question, among others, those provisions of th
ange the development plan.
seeks also to extend the scope of the second action so
ing to the planned development, in proximity to the
ch will not be owner-occupied, but instead rented
dld result in the apartment contracted for being differen
agreement, and presumably less valuable.
e contract giving the
as to plead a breach
purchaser's suite, a
out. The purchaser
nt in substance from
Applications
dismissal of the acti
and leave to amend
accommodation. To
determining the first
parties agreed that w
and all other issues s
- 3 -
by both sides were brought on together. The ver-
on while the purchaser sought summary judgment for
so as to add the claim with respect to the propos-
e vendor sought summary dismissal based on the
action and on the ground that the claim in the second
that may be described as the res judicata-related argum-
raised by the applications for summary judgment from
lor sought summary
specific performance
ed addition of rental
order of this court
without merit. The
nt be first dealt with,
both sides be heard
later, if need be, as a
The Grand Cir-
res judicata-related re-
ferred the matter by
with. We said that w
The vendor's
have been brought o
action, and that, hav-
so the purchaser's application to add the further claim.
ard judge allowed the vendor's application for sum-
issued the action in its entirety. We all
back to the trial court for determination of all issues r
we would later provide written reasons.
position on the sole issue before us was that the pres-
ent decision by the purchaser in, or contemporane-
ing failed to have the matter dealt with prior to our
s either based by the rule in Henderson v. Henderson
by judgment on the
owed the appeal and
remaining to be dealt
ent dispute ought to
but now, the first
decision in the first
from litigating it as
should be taken to ha-
court in that action do-
fourth floor. The vi-
performance now so
contravening the exist-
(word)
ere effectively concluded the dispute when it approved a
tributing the apartment by a unit number showing it
endor contended that it could not conform with the
right -- that is to say one stipulating for a sixth-fl
ng decree calling for one on the fourth floor.
The trial court
Henderson v. Hender
In correct
subject
complaint
under
same
been
ruled
by
a
judge
stated
the
principle
laid
down
by
Vice
Chi-
son
(1848)
[1843-60]
All E.R.
378
(at
pp.
381-2):
dy, when I say, that where a given matter becomes of litigation in, and of adjudication by, a
court
requires
the
parties
to
bring
forward
their
whole
case,
and
will not (especially circumstances) permit the same parties to or subject of litigation in respect of matter which might
ought
forward as part of the subject in contest, but a legalized, properly
anceIor Wingram in
court
es the
jur
of
that
ex-
en the
have
which
inadvi-
of res-
upon
an oppo-
proper
parties
forward
The question was twofold: (i) whether the purchaser ought to have brought
before taking its decree of specific performance in
her by taking that decree in terms referring to a fully even be deemed to have accepted a resolution of the
any action be deemed to have accepted a resolution of the
being to the area of the apartment.
right,
the
plea
form
which
ought
at the vertical dispute
his court in the first
urban or suite, the
floor-level dispute
The sequence
The summons
on for hearing on Ap-
2002, finding for the
leaving for trial the ci
awarded. At a hearing
(WORD)
of events in the two actions is important.
By the plaintiff purchaser for summary judgment in
til 24, 2002. The trial court judge gave judgment in the
purchaser on the interpretation of the contract rega-
question whether specific performance should be decre-
ing on June 4, 2002, to settle this order, counsel for the
plaintiff
The first action came
t action on May 14,
ding floor area but
ed or only damages
purchaser mentioned
further claim relating to a planned increase in height
or said no such decision had been made, that if an
d by the planning authority the vendor might not take
aim was 'premature'. On July 15, 2002, after the ver-
it the first action but before the purchaser had cross-ap-
pose to correspondence from the purchaser's solicitor
in building size "the debate is entirely premature pen-
of the building, but
increase in building-
advantage of it, and
dor had appealed the
opinion, the vendor's
st that with respect to
ing determination of
the issue of planning
(should, indeed, that a
writ and statement of
made. The fact that
the second action on
Meanwhile, c
judgment in the first
for the vendor broug-
suggesting that the br
consent and, thereafter, the communication to your
be the decision) to proceed". On October 25, 2002, the
claim in the second action asserting that such a deci-
t had been made was confirmed by the vendor when
November 27, 2002.
In November 18 and 19, 2002, the appeal and cross-ap-
plication came on for hearing before this court. During
action came on for hearing before this court. During
the writ and statement of claim in the second acti-
ng of this further action disentitled the purchaser to
ning of this further action disentitled the purchaser to
tient of the decision
purchaser issued its
ion had in fact been
t filed its defence to
peal from summary
that hearing counsel
for to our attention,
the relief sought in
the first, a position th
appeal from summary
ordered specific perf
purchaser contended,
The formal or
performance in the fo
(word)
at we did not accept. On November 28, 2002, we dis-
judgment in the first action, allowed the purchaser's
tance in respect of the square footage of the apa-
the only matter in dispute in those proceedings.
rcher of this court in that action, dated November 28, 20
following terms:
92, directed specific
Pursuant
Plaint
and a
agreed
Plaint
lively
constr
described
12C,
USS2.
The reference to the
-6-
ant to Order 86 of the Grand Court Rules 1995, that be granted specific performance of the written agenda dated the 7th of February 2000, wherein the Plaint to buy and the Defendant agreed to build and sell off an apartment, with approximately 5490 square feet area, numbered 411, to be contained in a building located by the Defendant on the north part of the pad as Registration Section West Bay Beach South, Panel 11 in consideration of a purchase prior to July 2000.
number '411' is taken from the agreement as the num-
at the
ement
aintiff
to the
ect of
to be
land
e
Block
C
over there given to the
suite to be sold to t
located on the fourth
further floors to the
appeal, nor was the
apartment located on
In written rea-
the time of the appeal
to build a seven-storey
square footage without
the purchaser. The agreement and associated plans sh-
level. But whether the vendor would be entitled under
original plan for the building was in no sense before
question whether the purchaser would in that ev-
a floor other than the fourth.
enons dismissing the present action, the Grand Court ju-
cial in the first action the purchaser was already aware that
in the first action the purchaser was already aware that
ly structure and "could have asked in that action for an
at identifying the apartment as no. 411, as specified on
how that this suite is
the agreement to add
e this court on that
at be entitled to an
dge observed that at
the vendor intended
n order detailing the
he plan, being noted
on the order". The j-
ask for apartment
contract in the terms
more specifically with
Considered in
judgment on that app-
our view be determin-
(word)
dge concluded that the purchaser "was content at that
time" and was "estopped from seeking specific perfor-
mance of the same
at the relief is now sought". The judge did not find
application of the rule in Henderson v. Henderson (ab-
the context of the pleadings in the first case, and
al, the reference to the apartment number stated in the
tive of the question of the proper vertical location of
time to specifically
stance of the same
it necessary to deal
ove).
of our reasons for
agreement cannot in
the apartment in the
event the building was
known to be a n
shows that it was no
served to describe th
reference have been
been decided in the fi
Thus the record
ere constructed to a different height than that originally
matter in issue between the parties, but the parties knew
at in issue in that action. The reference to the apartment
the subject matter as stated in the contract, but the ver-
milled into believing that the issue raised in the secon
rst, so as to give rise to an estoppel.
version of the present appeal is not given in 1
y contemplated. This
as the record plainly
at number in the order
lor could not by this
did not had thereby
been decided in that earlier action.
Henderson v. Hender
court for decision as a
It cannot, of
specific performance
will thereafter those
Henderson (above),
plc, [1991] 2 A.C. 9
proposition that it w
which were clearly not pre-
son (above) the purchaser was obliged to bring the set-
forth of, or contemporaneously with, the first action.
course, be said that a contracting party is entitled o
in respect of any contract - that would be a licence to
terms not dealt with in the initial litigation. The n
s re-stated by Lord Keith in Arnold et al. V. Nation
3 (1985), a passage (at p. 97) quoted by the trial judge, be an abuse of process for a party to raise in a later
part of the subject matter of the earlier proceeding how-
ond claim before the
ly to one decree of
he other to breach at
ale in Henderson v.
l Westminster Bank
tax rather for the
per proceeding issues
and could clearly have
In this case th
because there was no
raised in the trial co-
vendor's counsel sta-
building height. The
(word)
been raised in that earlier action.
A vertical dispute could not have been argued as pa-
trial decision on the point that could be appealed. It
rt prior to summary judgment being given in that ac-
ted at that time, no decision had then been made to
vendor's position on the present appeal is that the
case should proceed to a
trial.
of the first appeal,
could not have been
ion because, as the
alter the proposed
purchaser could and
should either have
contract, or have app-
all liability issues had
its order. Counsel of
action, that action sh-
The law so le-
cted to seek a quia timet injunction restraining an
130 (C.A.). There w
inju nction, nothing I
cause of action accru-
should have been br
purpose of the rule
circumstances such as
for one breach of con-
trit cannot be amended to add a cause of action which
d; see also Roban Jig & Tool Co. Ltd. et al. v. Taylor,
ere no grounds on which the purchaser could have c
having been threatened which could have prejudiced
ted. We know of no authority for the proposition th-
ought on for decision prior to resolution of the app-
in Henderson v. Henderson would not, in our
lice by denying the aggrieved party the right to ob-
tract until all subsequent breaches that might be allege-
d; see also Roban Jig & Tool Co. Ltd. et al. [1979] F.S.R.
did not exist at the
8 (C.A.). [1979] F.S.R.
btained a quia timet
its rights before the
at the second action
al in the first. The
view he served in
in rather in an action
ced to have occurred
were also brought on
as much an impediment
that the Henderson ru-
(WORD)
for adjudication in later actions. Such a requirement
ent to the prompt resolution of disputes between the
be seeks to prevent.
could, indeed, prove
parties as the mischief
It was for the
of Claim be re-insta
parties be remitted to
We ordered th
-9-
se reasons that we allowed the appeal, ordered that the
ced, and directed that all other matters raised by the
the trial court for hearing and determination.
at the appellant have its costs here and below, to be tax-
e Writ and Statement
applications of both
parties not agreed.
E. Zacca, P.
I.D. Rowe, J.A.
M.R. Taylor, J.A.