Blue Haven Enterprises Ltd v Tully (Duclie Ermine) et Al
| Jurisdiction | UK Non-devolved |
| Judge | Lord Scott of Foscote |
| Judgment Date | 29 March 2006 |
| Neutral Citation | [2006] UKPC 17 |
| Court | Privy Council |
| Docket Number | Appeal No 57 of 2004 |
| Date | 29 March 2006 |
[2006] UKPC 17
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Steyn
Lord Hope of Craighead
Lord Scott of Foscote
Lord Brown of Eaton-under-Heywood
Privy Council
[Delivered by Lord Scott of Foscote]
The issue on this appeal is whether in the events which have happened the appellant, Blue Haven Enterprises Ltd ("Blue Haven"), can succeed in its claim for unjust enrichment against the 2nd respondent, Mr Robinson. Their Lordships have concluded, in agreement with the trial judge, Langrin J, and the majority in the Court of Appeal, Downer JA and Walker JA (Harrison JA dissenting), that it cannot. To explain why that is so it is necessary to start by recounting the essential facts which led to the claim being made.
The facts
The 1st respondent, Mrs Tully, is the executrix of the deceased owners of an estate in the Blue Mountains region of Jamaica. The estate is about 95 acres in extent. In 1985, when the story begins, the estate was undeveloped (its condition was described as "ruinate") and its title was unregistered. But it was eminently suitable for development as a coffee plantation and Mrs Tully wanted to sell it.
By a contract dated 14 November 1985 Mrs Tully contracted to sell the estate to Mr Robinson for the sum of $260,000 (references to $s in this judgment are references to Jamaican $s – their Lordships have been told that in 1985 the rate of exchange was roughly $10 to £1 but that rampant inflation has taken the rate to around $113 to £1). Mr Robinson wanted to develop the estate as a coffee plantation. The estate was described in the contract as containing 130 acres or thereabouts. The discrepancy between 130 acres and 95 acres led not surprisingly to a dispute between Mrs Tully and Mr Robinson. Mr Robinson contended that he was entitled to an abatement of the price to take account of the substantially reduced acreage that Mrs Tully could sell. Mrs Tully disagreed and, after serving a notice to complete, purported to terminate the contract. She put the estate on the market again. Mr Robinson responded by commencing proceedings (No E160 of 1987) for a declaration that he was entitled to a pro rata abatement of the purchase price and for an injunction to restrain Mrs Tully from selling to anyone else.
Mr Robinson's proceedings were successful. On 11 January 1989 Gordon J gave judgment in his favour allowing him a price abatement of $71,000 and granting an injunction restraining Mrs Tully from selling the estate otherwise than in accordance with the 1985 contract "or from pursuing further any existing contract of sale in relation to the said land otherwise than to [Mr Robinson]". Mrs Tully appealed but on 13 July 1992 the Court of Appeal dismissed her appeal and on 10 March 1993 the Privy Council dismissed her petition for leave to appeal. So the injunction granted on 11 January 1989 was confirmed.
Unfortunately Mrs Tully had already entered into a contract dated 5 January 1988 to sell the estate to a Dr Oswald White "or his nominee" for the sum of $450,000. Blue Haven, a company controlled by Dr White, was his nominee. But it is convenient to continue to refer to Dr White as the intending purchaser of the estate. Dr White, like Mr Robinson, wanted to develop the estate as a coffee plantation. Mrs Tully had told him nothing, and he knew nothing, of her 1985 contract with Mr Robinson or of the litigation regarding that contract.
The 1988 contract required the $450,000 purchase price to be paid in three stages: $67,500 was to be paid as a deposit on the signing of the contract, a further $112,500 was to be paid upon the production of a survey plan of the estate, and the balance of $270,000 was to be paid on completion. Completion was to take place "on the issue of a Registered Title for the lands" in the name of Dr White or his nominee. It is interesting to notice that the contract contained a price abatement provision allowing a price reduction if the survey should disclose that the estate contained less than 100 acres. The reduction was to be $3000 per acre for the shortfall. It appears that Mrs Tully and her attorney, Mr Fraser, had learnt something from their experience with Mr Robinson.
The $67,500 and $112,500 together constituted 40 per cent of the purchase price of $450,000. The contract provided that upon the payment by Dr White of 40 per cent of the purchase price (whether the full price or an abated price) he would become entitled to take possession of the estate and on or about 29 September 1988 Dr White was allowed to take possession. Paragraph 9 of the agreed statement of facts says that -
"Dr White paid the purchase price under the [1988] contract and was put into possession of the land by letter dated 29 September 1988…"
The "letter" was signed by Mr Fraser, Mrs Tully's attorney, and was expressed to certify that Dr White was "entitled as from the date hereof to possession …" of the estate. The document, and Dr White's entry into possession, predated the grant by Gordon J of the injunction. Their Lordships infer that by 29 September 1988 Dr White had paid 40 per cent of the purchase price. He was under no obligation to pay more than that until completion and there is no evidence or reason to believe that he did so.
Once in possession Dr White set about developing the estate as a coffee plantation. He cleared land for planting and planted some 60 acres with coffee plants. He also put in place some of the necessary infrastructure of a coffee plantation, including the building of workers' cottages, a coffee house and offices and constructing a road. By 1992 the coffee plants were sufficiently mature for a crop to be taken and in 1992/1993 and 1993/1994 Dr White harvested and sold a coffee crop.
Critical factual issues in this case are when Mr Robinson became aware of Dr White's activities on the estate and when Dr White became aware of Mr Robinson's claim to the estate. Mr Robinson's first knowledge that Mrs Tully had contracted to sell the estate to someone else came in August 1988. Mrs Tully had applied for an order dismissing Mr Robinson's 1987 proceedings on the ground of his delay in prosecuting them. The application failed but an affidavit in support of it was sworn by Mr Fraser on 3 August 1988. In his affidavit Mr Fraser said that
"… the Defendant [Mrs Tully] has entered into a contract to sell the land … and the absence of prosecution of the suit is impeding the said sale."
This was nearly two months before Dr White took possession and it is a reasonable inference that the contents of the affidavit came to Mr Robinson's attention at a time before Dr White had gone into possession of the estate. The information that Mrs Tully had entered into a contract to sell the estate to someone is probably the reason why the injunction granted by Gordon J on 11 January 1989 took the form that it did.
There is no evidence that in the period between August 1988 and January 1989 Mr Robinson visited the estate. He had no reason to know that the unknown second purchaser had paid a substantial part of the purchase price, been allowed to take possession and begun the development of the estate as a coffee plantation. He did, however, visit the estate towards the end of January 1989 and visited it again a month or so later. Langrin J recorded in his judgment (pp 206/207 of the Record) Mr Robinson's evidence about these two visits.
"[Mr Robinson] visited the property where he observed that someone had just begun planting coffee. He wanted to stop anyone from planting coffee on the land. He saw one Mr Dillon on the property whom he asked who was planting the coffee. Mr Dillon said he did not know. Mr Robinson testified that he told him what they were doing is illegal because there was a court order making him the owner of the land. Mr Dillon refused to give his employer's name and Mr Robinson asked him to give his employers a note. Robinson wrote a note including his telephone number and address and requested him to give the note to his employer. The conversation with Mr Dillon lasted about half an hour. About one month later he returned to the property and spoke to Mr Dillon who said he had delivered the message to Dr White."
Mr Dillon was Dr White's farm manager. Thereafter Mr Robinson visited the property about three times a year until 1994. There is no evidence that he spoke again to Mr Dillon.
Mr Dillon was not called to give evidence at the trial and Dr White, who had been murdered on 18 June 1993, was not alive to do so. Evidence was, however, given by Mrs White, Dr White's widow. She gave evidence of a telephone conversation in 1992 between her husband and Mrs Tully. She had heard Dr White's end of the conversation. The relevant passage from the transcript of her evidence reads as follows:
"He [Dr White] told her he had heard about Mr Robinson, someone came there saying he had purchase the land."
This evidence led Langrin J to make the following findings about Mr Robinson's January 1989 visit.
"… in January 1989, when the planting of coffee had commenced Robinson informed Dillon, Dr White's farm manager, of his ownership of the land and sent a note to Dr White informing him of the situation. This information was related to Dr White."
Their Lordships will return to these findings and their significance but it is convenient to record here that both in the courts below and before the Board it was submitted that there was no admissible evidence that Mr Dillon had given to Dr White the note given to him (Mr Dillon) by Mr Robinson. Mr Robinson's evidence that, on his second visit, Mr Dillon had said that he had given the note to Dr White was not evidence that Mr Dillon had in fact done so. Their Lordships agree...
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