Harre CJ
```html 1 IN THE GRAND COURT OF THE CAYMAN ISLANDS HOLDEN AT GEORGE TOWN, GRAND CAYMAN ON 21ST NOVEMBER 1994 CAUSE 465/93 BETWEEN DAVE ERIC RILEY AND MERVILLE RILEY AND GRAND CAYMAN GOLF RESORTS LIMITED PLAINTIFFS DEFENDANT For the plaintiffs: Mr. Conor Griffin Mr. Steve McField For the defendant: Harre C. claim This is a counterclaim arising from a contract to purchase a lot in a development known as Patrick's Island on Grand Cayman. The pleading is brief and by referring to them by direct quotation I can most concisely describe the issues. The following appears in the special endorsement to the written agreement: The Defendant agreed with the Plaintiffs to sell to the Plaintiffs a plot of land at Spotts Registration Section 24, part of a development to be known as Patrick's Island and Patrick's Lagoon. The said agreement provides (inter alia) for the Defendant to refund to the Plaintiffs any money under the agreement in the event of the Plaintiffs failure to deliver a registerable title within 12 months of the date of the agreement, which was January 1993. This is covered by clause ```
#9 of the said agreement. 3. The defendant has failed to deliver a registerable title by the 1st January 1993, and the Plaintiffs have demanded the return of the sum of CI$21,000.00 paid by way of deposit under the said agreement. The Plaintiffs therefore now claim the said sum of CI$21,000.00 together with interest at 10% pursuant to the Judicature Law and costs." Particulars showing a sum claimed at the date of the writ of CI$22,539.00 follow. The defence admits the agreement on or about 14th April 1992 and continues as follows:
Plaintiff alleges the Defendant denies any agreement with the Plaintiff that the 1st day of January 1993 was the date on which the Plaintiff was to deliver a registerable title to the Defendant with the benefit of planning permission.
The defendant repeats paragraph 2 of the defence and states that the Defendants were duly notified of the Plaintiffs' willingness and ability to transfer title to the Plaintiffs on payment of CI$21,000.00.
The Defendant states that date for the delivery of a registerable title with the benefit of planning permission was left blank in the contract. Subsequently, the Defendant became aware that such date had been filled in when the Plaintiffs demanded for refund of their deposit.
On the date of the 1st January 1993 or was notified into the said contract the Defendant that it was done without his agreement, 7. age, acquiescence and or consent.
The date of the 1st January 1993 is or was or about 2nd August 1993 the Defendants, by letter post, notified the Plaintiffs that the Plaintiffs were in a position to transfer title to the Defendant and by the way of counter claim the Defendant repeats paragraphs 1 to 5 of the defence.
The document appears to be a legal document, possibly a court filing or a legal brief, discussing a dispute between parties. Below is a faithful transcription of the visible text, formatted according to the instructions provided: --- **3** **8.** By letter dated on or about 21st September 1993 the Plaintiffs notified the Defendant that they "would like our deposit of CI$21,000.00 returned to us immediately...." **9.** In breach of the said agreement the Plaintiffs have refused to complete the said agreement by taking title and paying to the Defendants the balance of the purchase price of CI$21,000.00" and the defendant counterclaims CI$21,000, the balance of the purchase price, interest and costs. The issue in the case, both of fact and law arises from two clauses in the agreement dated 14th April 1992. Clause 9 in the proforma contract reads as follows: "Whereas the Vendor is unable to deliver a marketable title, together with the benefit of clause 9.9g permission for the subdivision of the lot 19 Green Ch the return of all money paid pursuant to clause 11.1r, gr 2a hereof and as specified in the Fourth Schedule, hereinafter referred to as the "Fourth Schedule", the Vendor shall have any further rights or obligations whatsoever in respect of this contract." And clause 11 reads as follows: "Whereas the Vendor is unable to deliver a marketable title, together with the benefit of clause 9.9g permission for the subdivision of the lot 19 Green Ch the return of all money paid pursuant to clause 11.1r, gr 2a hereof and as specified in the Fourth Schedule, hereinafter referred to as the "Fourth Schedule", the Vendor shall have any further rights or obligations whatsoever in respect of this contract." With regard to clause 9, the 1st plaintiff and his two spouses agree that the notice given hereunder shall be by registered air mail if the other party resides outside the Cayman Islands and shall be served seven (7) days after posting thereof, and shall be addressed to the attorneys at law of the Vendor, or the address as may be notified by either party to her from time to time." --- This transcription is based on the visible text in the image and does not include any assumptions or inventions.
```markdown 4 The witnesses, who were the real estate agents who acted for each party, stated unequivocally that the defendant was present, with them and the 1st plaintiff, at the signing of the agreement and that all 3 copies had "January...93" hand written in the blank spaces underlined, so as to complete the expression "1st day of January 1993". I attach no significance to the discrepancy between this and the 4th January which appeared in the original offer to purchase. That was, by reason of the New Year holiday, the first working day of that month. Crighton, the defendant's agent, said he wrote the words in himself and identified his handwriting. I shall now deal in some detail with the evidence given on behalf of the defendant denying this. This evidence is given by Mr. Huig Zuiderent (a.k.a. Hugo) the defendant's only witness. In response to support of his denial Mr. Zuiderent had to deal with certain affidavits of evidence passing between him, acting on behalf of Grand Cayman Grand Wrts Ltd., the plaintiff and his attorney. The plaintiff's affidavit written in the following terms on the 26th July 1993 - Irland's Island W.IX 1320 GT Chas. W. Cayman Island The affidavit was on: Hugo Zuiderent This letter is in reference to the decision of March of 1992 an agreement to purchase the comp of lot #124. I put down a deposit of $21,000.00 and the balance to be paid upon completion. The agreement stated that the land needed to be delivered by January 4, 1993. In June of 1993 I needed that I could not wait any longer for a ```
5 house so I purchased a house already completed. Therefore I can not afford to purchase the land and sit on it for several years. After several attempts to reach you to discuss this situation I finally had to call Eric Bosch who was the Real Estate Agent. Mr. Bosch said he spoke to you and you said I needed to give you two weeks notice in writing. That is why I am writing this letter to inform you that I have decided to cancel our agreement and I need to get my deposit back. I will be away for several weeks but you can either mail it to P.O. Box 612 G.T. or drop it off at Tri-Star Cayman Ltd. to Jeff Pouchie. P.S. I may be interested in a canal lot at a later time and I hope that there will be no hard feeling over this situation. Sincerely, Twa Tiley. Dave hat was a registered letter and the receipt indicated the address is Hugo Zuiderent and the date of arrival as 29th July 1993. The letter was signed by one Hunter as addressee and the signature of the address of destination (apparently the Post Office) appears to be unidentifiable initials YM. An issue of law with which I shall have to deal later is whether the letter constituted a valid notice to servendor as required by clause 11. The defendant's evidence of a P.O. Box 1320 GT, the address shown in that clause was that an agent management company called International Corporate Management Ltd.
6 It conveyed the information that GCGR was in a position to transfer title to the lot at Patrick's Island and that the balance of the purchase price outstanding was CI$21,000. The 1st plaintiff's evidence was that he was away from Cayman at that time. His response came in the form of a letter from his attorney dated 2nd September referring to the 1st plaintiff's letter of 26th July which was described as "demanding the return of the part payment of CI$21,000 because of your failure to complete the transaction by the 1st January 1993 in accordance with clause 9 of the purchase agreement". In fact the plaintiffs' letter had referred to 4th January 1993, the date inserted in the original offer to purchase. The following is the defendant's response by fax dated 6th September and read as follows: We are pleased to inform you that we have received your faxed letter dated 28th September 1993. We are referring to the letter of 28th July 1993 to which you referred in your letter dated 28th September 1993. We are surprised that Mr. Riley now wishes to cancel the contract agreement with us, some 9 months after the registration of the sales agreement in Clause 9 of our sales agreement. We did not correct that Mr. Riley did speak to us in the letter dated 28th July 1993 and indicated that he might have to postpone the agreement due to personal reasons. Our understanding is that Mr. Riley has not called for any notices to be sent out and we never received a notice. We would appreciate if you could send us a copy of your letter, and indicate to us who collected it at our last office.
The correspondence resumed with a letter dated 21st September signed by both plaintiffs, and sent to GGCR at the P.O. Box number shown on the defendant's letter of 2nd August. The material part reads as follows: "This letter is to inform you that Dave and Mervile Riley would like our deposit of CI$21,000.00 returned to us immediately due to clause 9 which states that the land had to be completed by January 1993. Since the land was not completed we decided in July 1993 to purchase a home. I have made several attempts to discuss this situation with you over a period of ten weeks and since you have made no attempt to resolve this matter I have had to seek legal advice." The letter was received by the defendant. The defendant also accepts that as late as April or May the 1st plaintiff carried discussing the possibility of buying another adjoining lot at Pag to w Island, but that fact shows no more than he was not yet seeking withdrawal from his contract with the vendor at that time. It there is little weight as an indication of what the terms of clause 9 are. There was swift exchange of correspondence between the plaintiff and the defendant between 21st and 30th September. It was threatened by the plaintiff's attorney on 21st. Letter 22nd from the defendant, signed, as always, by Mr. Zuidvee contained the following passage of importance in: [The rest of the text is cut off and not visible in the image provided.]
relation to the terms of clause 9. We have received from you a copy of the registration slip, however we do not see our signature on this, although the letter was addressed to the undersigned personally. We also have checked a copy of the sales agreement, which we have in our possession and we do not see that Clause 9 has been initialled. Could you please send us a copy of the relevant page of Mr. Riley's contract. Upon receipt we will immediately contact you. The attorney's response dated the following day, 23rd September, included the following observation on this: Clause 9 of agreement has not been initialled but there is no particular requirement for this: is Cayman Golf Resorts Limited denying the date included in that clause? We wish to clarify your fax of today's date, we concern clause 9. Clause 9 in our agreement does not show a date at all and therefore not initialled. We checked our agreement till September 22, and the defendants' response came the same day. It was dated September 23. This clarification to your fax of yesterday with regard to clause 9 implies the issue as far as we were concerned not. Clause 9 in our agreement does not show a date at all and therefore not initialled. We have filled out the agreement, these are filled out by the Realtors and are then presented to us. The client has signed the agreement, after I do sign and initial the agreement. Look at the agreement, clause 2b has been served notice to complete, if Mr. Riley is willing to listen some more time, we might be willing to listen to your proposal. c] "On the other hand, if we are not satisfied with your proposal."
Further argument ensued in correspondence as to contractual procedure and the agency position. I need not refer to it. A writ was issued on 14th October. Acceptance of the defendant's version of events would involve the following propositions: - That the 1st plaintiff and his two witnesses are all wrong in saying that Mr. Zuiderant was present with them at the signing of the contract dated 14th April. - That the handwritten element in clause 9 was inserted by him. - That the date was in clause 9 at the signing. The realtor said that they (and in particular Crigton, the defendant's agent) were wrong in saying that the date was in clause 9 at the signing. Mr. Zuiderant, having accepted (as he said) on 6th September of the date of what was said by the plaintiffs' attorney on the 2nd of September some 9 months earlier had been inserted in clause 9 of the agreement said in his letter of 22nd September only that his clause 9 had not been initialled by reason of the explanation on 23rd to which I have referred. I find it incredible that if Mr. Zuiderant had discovered on 2nd September that no date was inserted in clause 9 of his copy of the contract he would not have said so in his letter of that day. I reject his evidence that this was so. I also find it
10 incredible on more general grounds that both parties and their real estate agents would have let such an important matter go by default at the time when the agreement was concluded. I now turn to the question of notice. My view is that the provisions of clause 11 of the contract apply to a demand under clause 9 and indeed the opposite view has not been relied upon with any conviction before me. The question is whether the 1st plaintiff's letter of 26th July constituted notice to the vendor in accordance with clause 11. The was a correct postal address of the company as set out in that clause 1 used. Mr. Zuiderant gave evidence of his belief that that was not the postal address of the registered office but it mattero Hugt From the receipt slip I infer that the envelope was addressed Isawar Zuiderant, the controlling director and shareholder of the co the end that the name of GGGR did not appear on that envelope. I plan certainly did not appear on the letter itself. "Patrick", the name of the development, which is described on the cover di sales contract as "a development by Grand Cayman Golf Resorts I s of so appear. Laws (a) following general proposition with regard to the requirement (a) notice to a company are well established. See Halsbury of England 4th Edition Vol 7 (1) paragraph 990 -
```html 11 should either be given to the company through its proper (b) Notice to a director or other officer of the company in that character is sufficient. (c) Even an oral notice given to a managing director or the secretary in the course of his duties as such suffices. (d) The notice which a company receives through its officers or other agents is not properly called constructive notice but is actual notice. or Relating this to clause 11 of the contract, I find that, as a general proposition of law, notice to the vendor company could be sufficient upon if addressed to Hugo Zuiderant, its controlling director of ontreholder. It is trite, and common ground, to say that if a determination is made in rem in accordance with the provision that one of the parties thereeto must be given in accordance with the contract. But the contractual requirement of clause 11 of the notice should be sent by registered mail to the address given in the contract - was complied with. P.O. Box 1320 George To Theh J that address and the demand was actually received there on the quit y. n contents of the 1st plaintiff's letter dated 26th July are not me unambiguous notice of his demand under clause 9 of the contract the return of the money paid under clause 2a and as specified Fourth Schedule even though the corporate name of the vendor was mentioned. -ay an ra ia wn ac 29 ```
```html 12 So in the light of all that have said I make the following findings of fact and law- The contract made between the parties and dated 14th April 1992 included in the third line of clause 9 the date 1st day of January 1993. The fact that this date appeared in manuscript did not raise a legal requirement that it should be initialled as agreed. It was not a deletion or alteration but something which had to be there to give the clause any meaning at all. Se notice under clause 11 of the plaintiffs' demand under ted 26 was given to the company by the plaintiffs' letter 9th ausesth July 1993 and actually received by registered post sit at the address specified in the contract. cordir 2 .. pogly, the claim for the return of the plaintiffs' demand under cordar egwu of $21，000 as set out in the special endorsement to slils. of summons succeeds and the defendant's counterclaim ink th The plaintiffs have also claimed interest at 10% in S 62 (2) of the Judicature Law and I have considered awarding that. On balance, however, I sts irthat post judgment interest at 7 1/2% in accordance ve 2 (1) properly meets the justice of the case. 1111111111111111111111111111111