Harre CJ
IN THE GRAND COURT OF THE CAYMAN ISLANDS
HOLDEN AT GEORGE TOWN, GRAND CAYMAN
CAUSE NO. C 160/94
CAUSE NO. 233/94
| Doc# 532 |
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PLAINTIFFS
- CHRISTOPHER MCNAMEE
- WINSTON MCNAMEE
- MARION PEYNADO
DEFENDANTS
- CONCORDE GIFT SHOPPE, A FIRM
- JEWELLERY TRADERS LTD.
- CHRISTOPHER MCNAMEE
JUDGMENT
The plaintiff took possession of a retail shop unit at the Owen Roberts Airport when the airport was opened around 1985. She initiated a periodic tenancy from the Civil Aviation Authority.
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Authority at a monthly rent and eventually obtained a lease running from December 1987. In mid-1987 she entered into an arrangement the terms and legal effects of which give rise to the issues in this case.
The plaintiff firm claims that it is entitled to possession of the premises and that the written agreement which was made on the 3rd June 1987 was a grant of a license to occupy the premises for the better management of the store known as the Concorde Gift Shoppe at the premises and that it was an express term of the agreement that the license could be determined by either party giving to the other three months' notice. Mrs. Peynado, who claims ownership of the firm, says that she is no January 1994 she gave notice to the defendants to terminate the license but the defendants or either of them have remained in occupation at the premises as trespassers.
The defendants on the other hand say that they were not given a license because they purchased the business, stock in trade and furnishings from the plaintiff outright. They say that there was a collateral agreement to the effect that the plaintiff would transfer these when obtained.
I will now look at the documentary evidence. The first point to note is the first formal lease, dated 1st December 1987 contains a clause providing that the lessee, described as Concorde Gift Shoppe P. 1199, George Town shall not assign underlet or part with the possession or the right to possession or control of the leased premises for any part thereof without the written consent of the lessor. This was for three years at a monthly rental of $312.50.
and Mrs. Peynado gave evidence that the box number - No. 1199 - shown
on the lease was her own personal box number.
There are two documents dated respectively 27th May and 3rd June 1987.
They are so important that I refer to them in full.
The first is a draft which was never signed
27th May， 1987
Marion Peynado
o.O. Box 1199
orge Town
and Cayman
ar Ms. Peynado，
(a) is letter is to confirm that Jewellery
Shaders Ltd.， of Grand Cayman will acquire the
management and merchandise of Concorde Gift
to opp at the Airport from you under the
following conditions：
(c) A sum of CI$4，000.00 to be paid， for all
at
co
co
ta
co
co
if) A sum of CI$700.00 per month， to be paid
you for rent and utilities of the premises.
) All stock on the premises to be acquired
cost price.
the above is stated correctly， and the
slke-over date of July 1st， 1987 is
Da mfortable with you， please sign the bottom
this letter and return it to us， keeping a
py of it yourself.
Sincerely yours，
Jewellery Traders Ltd.
Christopher McNamee
signed：...：：：：：：：：：：：：：：：：：：：：：：：：：：：：：：：
That letter was not acceptable to Mrs. Peynado. She produced the
following alternative version
June 3 1987
Mr. Chris McNamee
Jewellery Traders Ltd.
P.O. Box 1866
Grand Cayman
Dear Mr. McNamee,
This letter is to confirm that Jewellery
Traders Ltd. of Grand Cayman will acquire the
management and merchandise of Concorde Gift
oppe at the Airport under the following
conditions:
) A sum of CI$4，000.00 to be paid， for all
fixtures on the premises.
(c)
) A sum of CI$700.00 per month， to be paid
oc me for the use and utilities of the
emises. First and last month due upon
copying space on June 8， 1987.
(a)
Wi) In the event of non-payment of CI$700.00
sh month after a period of two months you
ll be required to immediately vacate the
mop with stock and fixtures to be removed. I
ll be under no obligation to purchase these.
I
) All stock on the premises to be acquired
cost price.
Da
Si) This agreement can be terminated on three
ths notice from either party.
trust the above will meet with your
tisfaction； therefore please sign below.
(Signed)
Christopher McNamee
June 8， 1987
(Signed)
Marion peynado
The plaintiff's evidence about the events surrounding the two letters was this. Before either letter was produced, she had consulted Christopher and Winston McNamee and discussed an arrangement whereby Christopher would manage the store for her. Following that, the offer dated 27th May was made, but Mrs. Peynado did not agree with the wording and redrafted the letter in the form dated 3rd June. It will be seen in particular that the expression "for rent and utilities" in the first letter has been changed to "for the use and utilities" in the second, and that a provision was added that the agreement could be terminated three months notice from either party.
The second letter was signed by Christopher McNamee and Mrs. Peynado.
She strenuously denies that she made any agreement to transfer any lease and who had made it clear that she did not have one to sell. The agreement was indeed for the sale of the business at the Airport, as it was a term of the agreement that the defendant would transfer the lease to the plaintiffs when she got it, and it was then agreed between the parties that the McNamees should operate the business until the management agreement until the plaintiff was able to transfer the business so that they could get through airport security to operate the business. Mrs. Peynado acknowledges that she never showed the letter to the Civil Aviation Authority.
On 30th at 3 some six years after these events, the Civil Aviation Authority wrote to Concorde Gift Shoppe at P.O. Box 1199 in the United Kingdom.
the following terms-
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Dear Sirs,
Enclosed are Lease Agreements covering space rented by Concorde Gift Shoppe on the first floor of the Airport Terminal Building. You will recall the problem we had in deciding the transfer of lands from Government to the Airport. This had just recently been resolved and it was signed by the CAA Board to make leases effective from the war, February, 1993 for a period of three (3) years.
Formal signatures are required along with a Notary Public's on the front and back of the Registered Land Law, 1971 Lease. When this is done, please return them to us for the signatures of the Authority after which they will be filed to the Registry Office. You will subsequently be charged of the Stamp Duty Fees and after these charges are paid the leases will then be executed.
Yours sincerely,
Box
Re: Secretary
the ad Civil Aviation"
An unexpected feature of this matter is although the letter to which I have just referred was addressed to Box 1199 the draft lease itself indicates the address of Concorde Gift Shoppe as being P.O. Box 1866 which is the number of Jewellery Traders Ltd the first defendant. It suffices for this time to say that it was Mrs. Peynado who signed the new third gave three months notice to vacate the shop to both
The document discusses various factors that may influence the interpretation of agreements between parties, particularly in the context of business dealings. It highlights the importance of having a written document to clarify agreements and avoid misunderstandings. The document also mentions the lack of evidence regarding the exact terms of an agreement between Mrs. Peynado and Mr. McNamee, which could lead to disputes. It suggests that without a clear written agreement, the courts may have to intervene to resolve any conflicts. The document further elaborates on the roles and experiences of individuals involved in the business, such as Mr. McNamee's involvement in founding Cayman National Bank and Mr. Peynado's experience in real estate. It also touches on the financial aspects of the business, mentioning a rent of $700 per month and the suggestion that the rent should be paid directly to Mrs. Peynado. The document concludes by emphasizing the importance of clear communication and documentation in business transactions to avoid future disputes.
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CAA from September 1991. Then, they say, they were disagreeably surprised to find that the rent charged by CAA was only $312.50 per month. Mr. Winston McNamee did say, however, that he thought $700 was cheap. That is a possible though not very convincing explanation. They continued paying the rent and, according to the evidence of a member of their staff, a Mrs. Greenwood, it was discovered in 1993 that Mrs. Peynado had begun paying rent also in that year.
Mrs. Peynado's behaviour in relation to the payment of $700 was also curious. There is no better reason for foregoing the difference between $9 and $700 per month in 1991 than that the existing arrangement had a bother to her. That is only credible on the basis that she completely lost interest in the business at that time and indeed had taken no active part in it from the moment the defendant commenced. I am asked to infer that the resumption by her of the rent as nevents is a colourable attempt to justify her contention that she never relinquished, and never agreed to relinquish any leases, as bet the new lease in her name. She says she discovered the rent all along and only discovered later that it had been paid.
Mr. Winston McNamee's evidence is that he repeatedly asked Mrs. Peynado to transfer the lease. There is no documentary evidence of this at the whole material period.
Taken altogether, the oral evidence throughout is inconsistent on both sides. Aled en Sng to the method the court should use to ascertain the doctrine hts to an
Consideration of the Doctrine of Part Performance
The requirement of writing containing in S. 37 (2) of the Registered Land Law and the proviso relating to the doctrine of the part performance.
The very question of issue in this case - whether the defendants in taking possession and operating the business were wholly performing the terms of the written contract or partly performing the written contract orally varied. Their activities are equally consistent with either the position. Their payment of rent to the CAA is some support in their view that they thought of themselves as tenants from the time display began to do so at least, but that is not in my view enough to change the unequivocal terms of the termination clause of the written lease. Mrs. Peynado could never have agreed to transfer Shse to them. That would have required the consent of the CAA etvours. Could have done no more than say that she would use her best end. True, she could have done nothing at all in the expectation that the defendant would be allowed to sign a lease in the name of the fictitious entity "The Concorde Gift Shoppe". One of the issues in the case is the proprietorship of that name, and the goodwill he had. Did Mrs. Peynado dispose of it or did she not? The plaintiff's argument really amounts to this. Mrs. Peynado had sold it, as her interest in the business, which did not include any lease. She had nothing left. I think that that argument has two flaws. So have an "interest in land" which she could dispose of by contract. The defendants say she did; and she did not dispose of all that. She retained the right to terminate the agreement.
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and regain all that she had transferred on giving three months notice.
It is that clause which seems to me to be fatal to the defendant's case.
I am constrained to adopt a simple and straightforward approach to this case. That the written agreement dated 3rd June 1987 meant exactly what it says. And that there was no inconsistent oral agreement. It was a management agreement revocable on 3 months notice. It may well be that the McNamees thought that on moving in they had was the last of Mrs. Peynado and they were shocked to find that they had not. It may also be that for years she lost interest and did ultimately change his mind and decide to move back.
Those evidence to be reasonable inferences from the evidence. Mr. McNamee, once that she admitted changing her mind (which she denies) had amount to no more than that. But that is not to say that she had abandoned her right to invoke the terms of the written contract.
The defendants are not the tenants of the CAA. The plaintiff in Cause No. 233/94, which Mrs. Peynado is the sole proprietor is entitled to the relief it seeks in the specially endorsed statement claim in Cause 16. Novel.
Cost to the event.
Dated 3rd December 1995.
G.E. Harre
Chief Justice
\begin{table}[h]
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\begin{tabular}{|c|c|}
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\textbf{Date} & \textbf{Event} \\
\hline
3rd December 1995 & G.E. Harre \\
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\end{tabular}
\caption{Signatory Information}
\end{table}
\begin{table}[h]
\centering
\begin{tabular}{|c|c|}
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\textbf{Signatory} & \textbf{Position} \\
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G.E. Harre & Chief Justice \\
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\end{tabular}
\caption{Signatory Information}
\end{table}