Simrose v Chambers

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Glasgow, J.
• Judgment Date: 26 June 1972
• Neutral Citation: VG 1972 HC 6
• Docket Number: No. 28 of 1969
• Date: 26 June 1972

High Court

Glasgow, J.

No. 28 of 1969

Simrose

and

Chambers

Appearances:

J.S. Archibald for Plaintiff

J. Rowan Henry, Q.C. for Defendant

Contract - Sale of land — Breach — Damages.

Glasgow, J.

1 The Plaintiff Company's claim against the Defendant is for $10,000.00 damages for alleged breach and repudiation of an agreement in writing made between the Plaintiff Company and the Defendant during 1969 for the sale of a property at Greenbank in the Island of Tortola in the Territory of the British Virgin Islands and for loss and damage occasioned to the Plaintiff Company by the said breach and repudiation.

2 The Defendant in his Defence denied that he is indebted to the Plaintiff Company and denied the allegations contained in paragraph 6 and paragraphs 3.1 to 19 of the Statement of Claim. The Defendant alleged that the Plaintiff Company was in breach of its contract to complete a dwelling house which it had contracted to build on the said property, The Defendant, by way of counterclaim, claims a refund of $100.,00 which he paid as a deposit to the Plaintiff Company.

3 The facts which gave rise to this action are as follows: On the 26th March, 1969 the Plaintiff Company, which is a land developing concern, and the Defendant, an architect, entered into a written Agreement whereby the Plaintiff Company agreed to sell and the Defendant agreed to purchase a piece or parcel of land situate on Sit No.4 of Parcel 20 of Greenbank Estate on the Island of Tortola in the Territory of the British Virgin Islands containing by admeasurement 0.73 acres together with a right to pass and repass at all times and for all purposes over a specified Estate road. The said Agreement also provided that before completion the Plaintiff Company would construct upon the said premises a dwelling house in accordance with the terms and conditions outlined in the letter written to the Defendant on 13th February, 1969 and signed on behalf of the Plaintiff Company by Sam Penrose Managing Director. The agreed purchase price of the house and land was $65,000.00. This included $100.00 which the Defendant had paid to the Plaintiff Company by way of deposit when the said Agreement was signed.

4 The Plaintiff Company proceeded with the construction of the dwelling house upon the said land and the Defendant visited the said house on numerous occasions. A number of alterations were made to the house at the Defendants request. On the 19th May, 1969, when the said house was substantially complete, the Managing Director of the Plaintiff Company received from the Defendant a letter in the following terms-

“Dear Sam

HOUSE AT GREENBANK

For sometime now you will have realised that I have been very concerned about the question of a mains electric supply to the house. In fact in my initial letter to you I mentioned that I would not take possession unless an electric supply had been installed.

I have not ascertained that B.I.C.C. are not expected to return to the Island until June or July following which, they wall take four weeks to settle in and re-organise themselves before completing previously unfinished work. I am informed by the Chief Electrical Engineer that the Greenbank area is not scheduled to be commenced until late in the year, and I am advised that a supply cannot be expected much before Christmas.

As I have a young family and an invalid mother-in-law to care for, we are frequently faced with ‘disturbances’ during the night, and I cannot contemplate the inconvenience of a generator and all the attention and maintenance it will require. In addition to this I have expressed concern at the way in which the afternoon sun enters all the rooms. Recently in your absence, I called on Michael Helm, but it seems he had not mentioned it to you. In my opinion, this is a fault in the design and it is essential that a sunbreaker of some kind should be placed externally over the windows facing the west. Last Sunday I visited the house after heavy rains and I was very surprised to see that water had been blown through the closed louvred doors in the lounges resulting in permanent damage to the parquet floor. It seems that water runs down the external face of the concrete beam over the doors, and backs under the soffit and the subsequent drips are then blown through the fixed louvres.

In view of all these points I have reluctantly come to the conclusion that I cannot proceed with the purchased and I shall be grateful if you will return my deposit of $100. I would like to mention that I have spent more than $500, on landscapping the garden to date, and I appreciate that may be my personal responsibility.

I would like to thank you and Mr. Simmonds for your kind attention throughout our negotiations.

Yours sincerely,

Alan Chambers”.

5 Mr. Sam Penrose, the Managing Director of the Plaintiff Company replied to the Defendants letter in the following terms:-

“Dear Alan,

Simrose Limited, Development at Greenbanks – House No. 3

It is no exaggeration to say that I was astonished to receive your letter dated 19th May and to learn that you wish to terminate our contract for the above house. Only if we had another immediate buyer for the property on similar terms could we agree to this, and that is not the case.

You mention three objections, and of these the main one is concerned with the supply of electricity, I have already told you on more than one occasion that in view of the delay in the provision of the mains current we will install a generator to provide a full-time supply except for brief maintenance stops daily which we would arrange as far as possible to suit your convenience. The cost we had not discussed fully; but I was going to suggest we install a meter and charge the same rates as the Electricity Department. Should that not be practical, we could agree a standing charge. An order was placed for the generator nearly three weeks ago.

You also mentioned the effect of the afternoon sun in certain rooms. I must point out that the plans and aspect of the house were known to you, prior to the contract. The plans do not provide for external sun-shade; but these can of course be fitted at little cost.

Your last point was that rainwater had been blown through the louvre doors in the lounge and had damaged” the flooring. I explained to you whilst on the site and again later, that these particular doors are not intended as a permanent fixture, but were installed temporarily pending the arrival of the correct ones. These are now being fitted. As for damage to the floor, we will naturally see that all necessary repairs are carried out before completion.

I must point out that in building this house we have gone quite abnormal lengths in an endeavour to meet your wishes and have in fact incurred considerable inconvenience and expense in postponing other work in order to expedite completion, I sincerely hope that in this letter I have allayed your fears and that we can carry though this contract in the atmosphere of good will and cooperation which we have enjoyed up to now.

Yours truly

Sam Penrose”.

6 On the 2nd June, 1969 Mr. Penrose received a letter of the same date signed on behalf of the Defendant/“M. Barker”. The letter reads as follows:

“Dear Sam,

GREENBANK

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