Ginter et Al v Bethel
| Jurisdiction | Bahamas |
| Judge | Mohammed, J. |
| Judgment Date | 27 January 2005 |
| Court | Supreme Court (Bahamas) |
| Docket Number | CLE/gen/604 of 2003 |
| Date | 27 January 2005 |
Supreme Court
Mohammed, J.
CLE/gen/604 of 2003
Mr. Gregory Armbrister and Mr. Joseph Ledee for the plaintiffs.
Mr. Dorsey McPhee for the defendant.
Real property - Conveyance — Independent title search — Power of attorney — Failure to have good right to convey — Defendant conveying disputed property to plaintiffs who paid purchase price — Independent title search revealed that defendant had no title to property — Whether plaintiff entitled to return of their monies — Conveyancing and Law of Property Act, s.7 — Finding that plaintiffs entitled to return of their monies.
By an amended Statement of Claim filed June 27, 2003 the plaintiffs claim is set out as follows:
“1. The plaintiffs, husband and wife, were at all material times business people, operating the Swiss Pastry Shop out of rented property located on Prince Charles Drive, New Providence, Bahamas.
2. The defendant at the material time was an entrepreneur involved in the sale of land purportedly purchased from her late father, Attorney David Bethel.
3. The plaintiffs were seeking to relocate to property owned by themselves, and to this end they had so informed one Mr. Walter Hanchell, a Real Estate Agent.
4. On or about the 12th of September A.D. 2000 the said Walter Hanchell, showed the vacant property concerned to the plaintiffs.
5. The property is situated on Prince Charles Drive West off the road leading to St. Augustine's College, or more particularly described in a Conveyance between the defendant and the plaintiffs and dated the 26th of July, 2001.
6. By the said Conveyance, the defendant conveyed the property to the plaintiffs as Beneficial Owner at a price of B$ 90,000.00 less B$ 2,700.00 Stamp Tax.
7. Before the related Sale Contract of June 6th 2001 was signed, and in order to induce the plaintiffs, the defendant offered to assist the plaintiffs by procuring for them a permit for the construction of an intended building on the said property.
8. The defendant made application to the Physical Planning authorities with a view to obtaining an approval for said construction in principle, which was granted by letter of 27th September 2001.
9. The defendant also executed a waiver of liability on the 21st February 2002 as a condition of the grant of a permanent approval from the said Authorities.
10. To the end of the construction of said intended building, the plaintiffs engaged the services of an architectural firm at a cost of B$12,000.00.
11. On or about the 29th of May 2002 the plaintiffs paid the Physical Planning authorities the sum of B$986.00 in building fees.
12. The plaintiffs also engaged the services of a firm of Attorneys for the purposes of the Conveyance at a conveyance fee of 2 1/2% of the purchase price of the property.
13. After the conveyance of the property the plaintiffs further engaged the services of a landscaping firm to clear the property of its over growth at a cost of B$475.00.
14. Upon clearing the said land, one Mr. Dwight Higgs approached the plaintiffs and evicted them from occupying the land, claiming that his family owned the property and that the defendant had no title to it whatsoever.
15. Thereupon the plaintiffs reverted to their Attorneys but nothing seems to have turned on the reversion despite months of back and forth communication.
16. The plaintiffs also reported the matter to the Ethics Committee of the Bar Association, as they felt that their Attorneys, who were paid a full conveyance fee, ought to have advised them that the defendant did not own the land.
17. The plaintiffs also hired an agent at a fee of B$250.00 to conduct an independent title search, the report of which was delivered o the 16th October 2002.
18. The findings of that title search are as follows:
(i) One Irving Mckinney, claiming to be the heir-at-law of a purported owner of the property, issued a Power-of-Attorney to one Cubell Fox.
(ii) The Power-of-Attorney was recorded on the 7th May 1968 in Volume 1254 at pages 238 to 241 in the Registry of Records in the City of Nassau, Bahamas.
(iii) By said Power-of-Attorney Cubell Fox conveyed said property to David Bethel, the defendant's father, on the 29th November 1969, who in turn conveyed it to the defendant on the 5th of July 1991.
(iv) On the 17th March 1971, some 16 months after the Conveyance to David Bethel, the said Cubell Fox secured for the said Irving McKinney, Letters of Administration in the estate of the Donors father, the late George McKinney, the purported owner.
(v) The said Cubell Fox purported to transfer the said land to the said Irving MCKinney by an Assent Conveyance dated 19th March 1971.
(vi) On the 18th of July 1972, the said grant of Letters of Administration was revoked by Order of the Court.
19. The said Power-of-Attorney directed Cubell Fox to quiet the said land under the Quieting Titles Acts, 1965; but he omitted to do so, David Bethel omitted to do so and the defendant omitted to do so.
20. As a consequence the transferee David Bethel had no title to the property; and so Tanya Bethel, the defendant, to whom David Bethel conveyed the property on the 5th July 1991 could not have any title to the said property.
21. The defendant had had sufficient time and available expertise in the person of her father, an Attorney, to ascertain whether or not she had title to the property.
22. The defendant at all material times held herself out as being the true owner of the property.
23. The plaintiffs did pay to the defendant the purchase price of the property as per the Sale Contract between them dated the 6th June 2001 and as per the Conveyance between them dated the 26th July 2001.
24. The defendant's receipt of the purchase price did confer a benefit upon her; nor has the defendant repaid any of the funds received.
25. The very helpful defendant who obtained Planning approval for the plaintiffs refused to meet with the plaintiffs upon their eviction from the property.
26. Money representing the price of the property has passed from the plaintiffs to the defendant with no consideration whatsoever flowing from the defendant to the plaintiffs.
27. The plaintiffs have suffered loss and damage as a result of the defendant's breach of covenants implied in her conveyance of the property to the plaintiffs as beneficial owner.
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(1) Failure to provide a property that was free from any estate interest or claim.
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(2) Failure to have a good right to convey the said property to the plaintiffs.
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(3) Failure to provide the plaintiffs with quiet and undisturbed enjoyment of the said property.
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(1) Damages and/or monies had and received.
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(2) Interest pursuant to section 3 of the Civil Procedure (Award of Interest) Act, 1992.
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(3) Costs.”
| PARTICULARS OF DAMAGE | B$ | |
| (a) | Price of Property less 1/2 Stamp Duty | |
| (b) | Legal fees | 2,250.00 |
| (c) | Photocopying charges | 40.00 |
| (d) | Title Search | 300.00 |
| 89,890.00 |
| PARTICULARS OF SPECIAL DAMAGES | B$ | |
| (i) | Independent Title Search | 250.00 |
| (ii) | Architectural fees | 12,000.00 |
| (iii) | Physical Planning fees | 986.00 |
| (iv) | Land Clearing charges | 475.00 |
| 13,711.00 |
By a simple Defence filed July 31, 2003 the defendant's defence is as follows:
“1. Paragraph 1 in the statement of claim is admitted.
2. No admissions are made with respect to paragraphs 2 to 4 in the statement of claim.
3. Paragraph 5 and 6 in the statement of claim is admitted.
4. The defendant denies paragraph 7 that her actions were to induce the plaintiffs and avers that the plaintiffs wanted assurance they could use the land for commercial purposes.
5. Paragraphs 8 and 9 is admitted.
6. No admission is made with respect to paragraph 10 and 11 in the statement of claim.
7. No admission is made with respect to paragraph 12 to fees paid to the plaintiff's attorney acting on their behalf in the...
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