Donna Dorsett-Major v Allan R Crawford

• Jurisdiction: Bahamas
• Judge: Sir Michael Barnett, P
• Judgment Date: 13 January 2022
• Neutral Citation: BS 2022 CA 4
• Docket Number: SCCivApp. 61 of 2020
• Court: Court of Appeal (Bahamas)

Between

Donna Dorsett-Major

(Trading as Dorsett Major & Co, a firm)

Appellant

and

Allan R. Crawford

Sharon M. Crawford

Respondents

Before:

The Honourable Sir Michael Barnett, P

The Honourable Mr. Justice Evans, JA

The Honourable Madam Justice Bethell, JA

SCCivApp. 61 of 2020

IN THE COURT OF APPEAL

Civil appeal — Negligence — Professional negligence — Breach of fiduciary duty — Findings of fact made by a trial judge — Judicial deference — Duty of care — Breach of duty of care — Pleadings — Whether the appellant acted for both parties in the sale of land transaction — Whether the appellant owed the respondents a duty of care — Whether the appellant breached her duty of care owed to the respondents

The appellant is a counsel and attorney-at-law. Her client, Christopher Stubbs, and his company, Shanna's Cove Estate Company Ltd. (Shanna's Cove) (the vendors) agreed to sell a parcel of land in Cat Island to the respondents (the purchasers). A draft conveyance was prepared upon which handwritten amendments were made and agreed to; the conveyance was executed by the parties and payment was made by the respondents. Following the sale of the land a dispute arose regarding construction by Stubbs which encroached on an access road bounded by property belonging to Stubbs and Shanna's Cove and the property purchased by the respondents which, according to the respondents, it was agreed to by the vendors and the purchasers to remain unobstructed.

As a result, the respondents commenced this action against the appellant on the basis of professional negligence and breach of fiduciary duty. The respondents submit that the appellant acted for both the vendor and the purchaser in this transaction and failed in her duty to properly advise them causing them loss and damage. The appellant submits that she acted only for the vendor. The outcome of an action against Stubbs and Shanna's Cove is the subject of a separate appeal.

The judge below found that the appellant acted for both parties to the transaction, that the appellant did not ensure the respondents received adequate legal advice, that as a result the respondents purchased land that did not meet the boundary specifications they intended, that the land was not properly surveyed by a licensed surveyor and that the appellant did not advise the respondents about the weight and effect of verbal agreements relative to the access road. Consequently, the judge found the appellant liable for the loss and damage suffered by the respondents and ordered damages to be assessed. Dissatisfied with the judge's findings the appellant launched this appeal.

Held: appeal dismissed. The parties will be heard on the issue of costs on 27 January 2022.

The proper approach to the review by an appellate court of the trial judge's findings of fact is that an appellate court should only interfere with those findings if it is satisfied that the trial judge was plainly wrong. In her judgment the judge identified various pieces of undisputed evidence to support her finding that the appellant acted on behalf of the respondents. As such, there is no basis to interfere with the judge's finding that the appellant acted for the respondents and, therefore, owed them a duty of care. The duty of care owed to the respondents was that of a “reasonably competent practitioner”. On the evidence, the appellant failed to meet that standard and therefore breached her duty of care to the respondents.

Bahamasair Holdings Ltd. v Messier Dowty Inc. [2018] UKPC 25 applied

APPEARANCES:

Ms. Krysta Mason-Smith, Counsel for the Appellant

Mrs. Giahna Soles-Hunt with Mr. Glen Curry, Counsel for the Respondents

Sir Michael Barnett, P

Judgment delivered by the Honourable

1 . This is an appeal by a counsel and attorney of this Court against a finding of professional negligence made against her by a trial judge.

2 . The claim arises out of a real estate transaction whereby the respondents purchased a parcel of land in Cat Island from the appellant's clients, Christopher Stubbs and his company, Shanna's Cove Estate Company Limited (Shanna's Cove).

3 . The judge found that the appellant represented both the respondents as purchasers and the vendors, Stubbs and Shanna's Cove. The judge found that the appellant breached her duty of care to the respondents and such breach caused them damages, which she ordered to be assessed.

4 . This appeal is against the finding of liability.

THE FACTS

5 . In the summer of 2010, Mr. Stubbs agreed with the respondents to sell to the respondents property in Cat Island owned by his company Shanna's Cove. On 30 August 2010, the parties attended the office of the appellant to have the formal agreement for sale prepared and executed. A draft conveyance (not an agreement for sale) was presented to the parties for their review and approval. The respondents reviewed the draft conveyance and made several handwritten amendments which Mr. Stubbs subsequently agreed to, provided that the respondents paid for resurveying the property. The property was resurveyed, but when the final version of the conveyance was prepared, the written description of the property did not match the plan which was attached to the conveyance.

6 . Subsequently, a dispute arose between the parties principally with respect to a 15-foot access road between the property purchased by the respondents and property owned by Stubbs and Shanna's Cove. It escalated when Stubbs commenced construction of a building allegedly encroaching on the access road. The respondents contended that there was an oral agreement between the parties that the access road between the parties' respective properties would remain unobstructed. Despite requests by the respondents that Stubbs and Shanna's Cove cease construction on the access road, he refused to do so. Stubbs and Shanna's Cove also constructed a septic tank on their property, but very close to the ocean and directly in front of the respondents' property without inspection access covers and in contravention of the rules and regulations governing the placement of a septic tank.

7 . The respondents commenced an action against Stubbs and Shanna's Cove as well as against the appellant. The outcome of that action is the subject of a separate appeal.

8 . As against the appellant, the respondents claimed that she acted negligently when she failed to properly advise them in the execution of a conveyance that did not accurately reflect their negotiations with the first appellant.

9 . The pleaded case was as follows:

• “4. During the summer of 2010, in a series of meetings and telephone calls between the Crawfords and Mr. Stubbs, it was agreed in principle that the Crawfords would purchase a parcel of real estate within Shanna's Cove (hereinafter referred to as “Parcel A”) from SCEC for a price of One Hundred Fifty Thousand Dollars ($150,000.00), with the Crawfords to be responsible for the payment of the applicable stamp duty and their own legal fees. Mr. Stubbs suggested that the parties be jointly represented in the transaction by an attorney who customarily acted for himself and SCEC, Mrs. Donna Dorsett Major of the firm Donna Dorsett Major & Co. The Crawfords agreed to this suggestion and confirmed their agreement to Mrs. Dorsett-Major in a subsequent telephone call. It was further agreed that the parties would meet at Mrs. Donna Dorsett-Major's chambers on the 30th of August 2010 to finalize the terms and complete the transaction.

• 5. During the meeting on the 30th of August 2010, Mrs. Dorsett Major produced a draft Conveyance for Parcel A with a plan of the property attached. In the presence of Mrs. Dorsett Major the Crawfords requested that the northern boundary of Parcel A be increased from the 60 feet shown on the plan to 75 feet in order to allow space for the construction of a separate garage on the property. Mr. Stubbs agreed to this on the condition that the Crawfords pay for the property to be resurveyed. The Crawfords agreed to this condition and paid the cost of the new survey to Mr. Stubbs then and there. Mr. Crawford and Mr. Stubbs then sketched corrected property lines and wrote corrected measurements for the property lines onto the plan attached to the Conveyance. These hand-drawn corrections where then initialed by the Crawfords. All of the aforementioned discussions and negotiations and the drawing of the proposed new boundary lines took place in the presence, and with the participation of Mrs. Dorsett Major.

• 6. The effect of the widening of the northern boundary of Parcel A from 60 to 75 feet was to decrease the size of a parcel of land shown on the plan as running along the eastern boundary of Parcel A and marked “ACCESS RD” (hereinafter called the “Access Road”) from approximately 90 feet x 90 feet x 15 feet x 25 feet to a regular 90 x 15 foot rectangle. In the discussions and negotiations that followed the hand-drawn corrections to the plan, Mr. Stubbs agreed that the Access Road was already provided for in the title documents of other purchasers in Shanna's Cove and would never be built upon or obstructed in any way. Mr. Stubbs stated that the Access Road would a) provide other property owners with the beach access promised to them, b) would provide the Crawfords with easy and permanent vehicular access to the back portion of Parcel A and c) would serve as a buffer between Parcel A and the parcel of' land shown on the plan and marked “B”.

• 7. Following the hand-drawn corrections to the plan and the aforementioned agreements and assurances, the Deed of Conveyance was executed by both parties and payment was made by the Crawfords.

• 8. On a date uncertain several weeks after the meeting and execution of the Conveyance, Mrs. Dorsett Major forwarded to the Crawfords a draft Agreement for Sale to which was attached a plan of Parcel A that appeared to have been corrected in accordance with the hand-drawn corrections...