The Court of Appeal in a Ruling issued on 25 January 2023 upheld the decision of Justice Klein in a matter involving a dispute by way of a purchaser/vendor Summons over the sale of a Unit in the One Ocean Condominium on Paradise Island.
In a majority decision of the Court, Isaacs JA held
The Agreement between the parties recognized that the legal description of the Unit was as it appeared in the amended Declaration. The respondent could not sell any greater interest in the Unit than what was to be found in the Declaration. The purchaser accepted this position albeit, quite possibly, with the understanding that the respondent would have to amend the Declaration so that the area of the Unit was accurately reflected therein.
Mr. Scott, attorney for the appellant submitted that the Judge ought to have implied terms in the Agreement to give it business efficacy or as it appears in the ground, “to apply a purposive and/or sensible construction to the Contract”. The short answer to Mr. Scott’s complaint is to be found in clauses 10 and 11 of the Agreement; and in clause 28 of the Agreement, to wit, where the following appears: “therefore, purchaser shall write in below any representations or promises that are not set forth in this agreement but that have been made by seller or its purported agents or employees and upon which purchaser is relying in making this purchase.”
The appellant did not inscribe any promise or representation in the Agreement to the effect that the Declaration would be amended before the sale went through; hence, she is impaled on her own failure to do so and bound by “the express provisions of the instrument”.
The Judge has done precisely what Mr. Scott contends for, that is, “apply a purposive and/or sensible construction to the Contract”.
The Vendor was represented by Raynard Rigby KC and Asha Lewis of Baycourt Chambers.
Happy with the decision of the Court, Mr. Rigby stated that “the decision should bring some clarity to the law relating to sale of Units in Condominium development where there is no dispute and no challenge to the validity of the Declaration of Condominium“.
Belitza Marling Sagary Silva v Replay Destinations (Bah) Ltd.Ct of Appeal
