Raynard Rigby KC was successful in advancing arguments before the Judicial Committee of the Privy Council that the appeal of Replay Destinations (Bahamas) Ltd. did not run foul of the rule in Devi v Roy [1946] AC 508 – that the Board does not, save in exceptional circumstances, entertain an appeal which challenges concurrent findings of fact by the courts below, even if it is an appeal as of right.
In Replay Destinations (Bahamas) Ltd (Appellant) v Royal Ltd and another (Respondents) the Board held:
10. There may be cases where the interpretation placed by an appellate court upon a first instance judge’s reasoning cannot be supported. But this case is not one of them. The Board is persuaded that the Court of Appeal’s interpretation of the judgment of the trial judge is both reasonable and indeed correct.
11. Turning to the issue of law, there is a significant contrast between the express terms of clauses 14 and 15 of the Contract. Clause 15 permits the purchaser to terminate (and recover the Deposit) upon breach by the seller only if the purchaser has complied with the Contract. But clause 14 entitles the seller to terminate and retain the Deposit upon breach by the purchaser with no (or at least no express) conditional requirement that the seller has complied with the Contract.
12. This asymmetry between clauses 14 and 15 of the Contract is not touched upon by the Court of Appeal or by the judge. Rather the Court of Appeal treats the requirement for compliance with the contract by the party giving the notice as settled law, by reference to two reported English cases about the giving of completion notices: Oakglade Investments Ltd v Dhand [2012] EWCA Civ 286 at para 39 and Quadrangle Development and Construction Co Ltd v Jenner [1974] 1 WLR 68 at 71 per Russell LJ. They were about differently worded contracts.13. The threshold for an appeal as of right on a point of law is a very low one. Without in any way intending to decide the point, which counsel for the Respondent understandably did not attend this case management hearing prepared to deal with, the Board considers that the differential language of clauses 14 and 15 of the Contract does make it arguable that clause 14 enables the seller to determine the Contract and retain the Deposit even if in breach of the Contract at the time of giving the required notice to the purchaser.
14. The appeal will therefore be permitted to proceed to enable that narrow point of law to be argued by the Appellant…
Mr. Rigby KC said – “I was happy with the decision and look forward to arguing the narrow point of construction before the Board when the matter is listed for a substantive hearing“.
This is the second appeal involving Replay Destinations that made its way to the Privy Council for final determination.
