William J. Oliver v Joseph Sylvester
| Jurisdiction | British Virgin Islands |
| Judge | MATTHEW J. Ag. |
| Judgment Date | 30 October 2002 |
| Neutral Citation | VG 2002 HC 54 |
| Docket Number | CIVIL SUIT NO. 120 OF 2000 |
| Court | High Court (British Virgin Islands) |
| Date | 30 October 2002 |
IN THE HIGH COURT OF JUSTICE
CIVIL SUIT NO. 120 OF 2000
Mr. K. Anderson for the Claimant
Mrs. M. Loue Creque for the Defendant
The action is for breach/repudiation of a contract for the sale of a vessel by the Claimant to the Defendant and for damages arising from the breach/repudiation. There is a counterclaim by the Defendant.
The Claimant's case is that by virtue of an Agreement dated April 17, 1998 executed by the Parties, the Claimant agreed to sell and the Defendant agreed to purchase all the shares in Northfield Sailing Limited which had as its main asset, the vessel, ‘Three No Trump,’ for the sum of $50,000.00
The Defendant made one payment of $10,000 in accordance with the sale agreement and thereafter breached the said agreement but paid $3,000 thereafter and made no further payments.
The Claimant contends that the Defendant has repudiated the contract and he has accepted such repudiation. He therefore claims $17,000 being the sum due under the contract at the time he commenced the action and a further sum of $20,000 being anticipatory damages.
The Defendant asserts that the sole asset of the business, the vessel, was the only reason why the Defendant entered into the Agreement to purchase the company, a fact which the Claimant was at all times aware.
The Defendant states that it was agreed between the Parties that the Claimant would garner charters on the vessel for the Defendant and the Defendant would pay the Claimant from the funds earned in the charter business.
In pursuance of this, says the Defendant, the Claimant advised the Defendant that he had charters organized and had received a deposit in respect of them but later cancelled those charters as he was unable to contact the Defendant.
Moreover, the Claimant held out the vessel to be ‘free from all liens, charges or encumbrances whatsoever and is properly licensed under all applicable laws, rules and regulations.’ The Defendant states that the vessel was neither licensed nor insured and as such the Defendant was unable to derive the use and benefit of it.
On October 6, 2000, the Claimant filed a writ of summons indorsed with statement of claim which was later amended on May 18, 2001 in which he claimed the amount of $37,000 being the balance of the contract price, interest, damages and costs.
In his defence and counterclaim filed on November 20, 2000 the Defendant admitted that the Claimant gave him possession of the vessel on April 17, 1998 but in breach of clause 2 (a) of the Agreement the Claimant supplied the vessel which was not licensed under the applicable laws, rules and regulations.
The Defendant further stated in his defence that by reason of the matters aforesaid the vessel has proven useless for the purpose for which it was sold to the Defendant and the Defendant sets up the said breaches of warranty in extinction of the sum claimed by the Claimant.
By way of counterclaim the Defendant says that he has incurred costs and expenses in the amount of $5,168.00 to carry out the recommendations of the Marine Surveyor which were necessary to make the boat insurable and thereafter a vessel in which passengers can be safely transported.
In view of this last paragraph it is difficult to see how the Defendant can contend as he did earlier that the vessel has proved useless for the purposes for which it was sold, and especially, as the evidence will show, he did go on charters with the boat however few as he claims.
On December 18, 2000 the Claimant filed his reply and defence to the counterclaim in which he joined issue with the Defendant on his defence save in so far as the same consists of admissions.
The Claimant stated also that the representations and warranties contained in clause 2 (a) of the Agreement were fulfilled, and there is a general denial by the Claimant of each and every allegation made by the Defendant in his counterclaim.
On June 7, 2002 the Claimant, a native of Canada, filed his witness statement. There he said he was the sole shareholder and director of Northfield Sailing Limited of which the only asset was a 44 foot vessel called ‘Three No Trump.’
He said the boat was kept in Tortola and he would come down to the island from Canada to go sailing at least one a year. He said he hired the Defendant to maintain the boat while he was in Canada.
He said that he agreed to sell the boat to the Defendant in 1998 for a price of $50,000 and that payment would be made in five yearly installments of $10,000.
He sated that as far as he understood he was not under any obligation to provide charters in relation to the boat.
He alleged that the Defendant had been using the vessel to do day sails on his own since 1997 both before and after the agreement was signed.
In addition to his written statement the Claimant gave oral evidence at the hearing. The Claimant reiterated that there was no agreement that the Defendant would pay him only if he got charters for the vessel.
Under cross-examination the Claimant stated that he knew the Defendant for over 10 years and from 1983 or 1985 the Defendant used to look after his boat.
The Claimant agreed to the correctness of a document dated December 15, 1989 indicating that he had given a half share of the vessel to the Defendant but he said he paid the Defendant thereafter $12,000 for a full release of the latter's claim to the boat.
The Claimant denied that the Defendant told him how could Defendant pay when Claimant did not send charters. He again said he did not promise to send the Defendant charters.
Joseph Sylvester filed a witness statement on August 14, 2002. He agreed that the written Agreement was signed on April 17, 1998 but he said before that they had agreed that the Claimant would be obtaining charters for the vessel.
He did not deny that he had paid only $13,000 of the contract price of $50,000. He said he made certain expenditures on the vessel as an effort to bring the vessel up to standard.
The Defendant also gave testimony at the hearing and was subject to cross-examination. He said the terms of the agreement were that the Parties would do charters and that was agreed before the signing of the written agreement.
He said it was not true that he never intended to pay the Claimant. He gave evidence of his counterclaim and he admitted receiving the $12,000 for the Claimant but he said it was not sufficient for his labour and maintenance.
Under cross-examination he said he did not agree to buy the boat as it was and said further: ‘I never...
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