BETWEEN:p class=MsoNormal align=center style="text-align: center; mer; margin-top: 1; margin-bottom: 1"> 1. RAM BINOD
2. SAVITRI RAM
Appellants
AND:
RATU JOSEPH MAE RATUMAITAVUKI
Respondent
Mr. V. Kapadia for the Appellants
Mr. A.R. Matebalavu for the Respondent
ass=MsoN=MsoNormal style="margin-top: 1; margin-bottom: 1"> This is an appeal against the judgment of the Suva Magistrate Court deld on the 14th of Septemeptember 1995 in which the appellants (the defendants below) were ordered to refund to the respondent (the plaintiff below) the sum of $12,500 paid pursuant to an oral agreement which fell through (to adopt the expression used throughout these proceedings).
The sole ground of appeal in the petition is as follows:
p class=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> "THAT the ed Trial Magistrate erred in law and in fact in granting jung judgment for the Plaintiff/respondent as it was against
the weight of the evidence adduced at the trial."
In considering this appeal it is necessary to set out the critical parts of the tmagistrate's judgment whichwhich are as follows after
briefly setting out the evidence of the plaintiff and the defendant: (pp.32 to 34 of the record):
ass=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> "The question to be considered is whether the $12,500.00 paid by the plaintiff should be refunded or not.
It is admitted that there is no writhat so ever to evidence anye any agreement regarding the deposit.
The two agreements have not been signed or executed hence the two draft agreement of sale and purchase are of no avail. They are not
agreements and they cannot be used to decide this issue.
The Defendant in evidence said he told the plaintiff that he will not refund the deposit if the sale fell through. On the words of
the defendant the plaintiff said: 'I will take the house in a couple of weeks and no worry.' If this was the plaintiff's reply then
I cannot hold that those words of the plaintiff meant the plaintiff agreed with the defendant that the deposit will not be refunded.
The plaintiff had no where in his nce said that he agreed to d to the deposit being forfeited in the event of the sale falling through.
On all the evidence taken into account I hold that the plaintiff had at no time agreed that the deposit will be forfeited in the event
of the sale falling through for whatever the reason. Under these circumstances are the defendants entitled to keep the plaintiff's
money? The answer is no.
The deposit be refunded. In this case there is no evidence at all that that the defendants has suffered any loss or damage by the
sale to the plaintiff falling through.
In fact the defendants have made a t. The land had been sold fold for $138,000.00. $13,000 more than what they would have got from
the plaintiff.
There is no evidence whatsoever to show the defendants were unable to sell the property to another offeror as the property was being
held for the plaintiff. There is also no evidence that the plaintiffs (sic) suffered any loss or damage by the delay that was caused
for the sale of the property.
In all the circumstances in this case and all the evidence taken into consideration I am satisfied that the Defendants have no right
to withhold the deposit and the full amount must be refunded to the plaintiff. The defendants cannot unjustifiably withhold the deposit.
It will be a case of the defendants enriching themselves unconscionably."
It is plain from the above excerpts that the trial magistrate based his decision on two main grounds, firstly, the absence of any agreement between the parties as to what was to happen to the deposit should the contract fall through; and secondly, the equitable doctrine of 'unjust enrichment'.
As to the 'first "(f/b>(fell) into error in holding that the deposit must be refunded because the receipt does not state that it is 'non-refundable'" and also in "(holding) that there was nothing expressly in writing stating that the deposit will be forfeited." Counsel based his submissions on 'the common law of deposit' which in counsel's view, 'is quite clear'.
In this latter regard the ourt was referred to several authorities including the leading case of Howe v. Smith (1884) 27 Ch.D.89; Soper v. Arnold [1889] UKLawRpAC 35; (1889) 14 A.C. 429; Hall v. Burnell (1911) Ch.D. 55; Martin v. Finch [1922] NZGazLawRp 156; (1923) N.Z.L.R. 570 and Lowe v. Hope (1969) 3 ALL E.R. 605. For present purposes however it is sufficient to refer to the convenient summary of the law relating to 'deposits' in Vol. 34 of Halsburys Laws of England (3rd edn.) which reads:
"A dt paid under a contract of sale serves two purposes; if thef the sale is completed it counts as part payment of the purchase-money,
but primarily it is security for the performance of the contract, and it is usual to provide expressly that, in the event of the
purchaser failing to observe the conditions of the contract, the deposit shall be forfeited to the vendor. Such a provision, however,
is not necessary, and, unless the contract taken as a whole shows an intention to exclude forfeiture, the vendor is entitled, by
virtue of the purpose of the deposit if the contract goes by the default of the purchaser to retain it as forfeited ..."
It is clear from the above and from dicta in the cases cited, that subject to the existence of a binding agreement and in the absence
of express provision, forfeiture of a 'deposit' in a contract of sale that has fallen through is dependant up on a finding that 'the contract goes by the default of the purchaser'.
This is also clear from what was sa Cotton L.J. in Howe v. Smith (op.cit) which was a case in whic which the written contract contained no clause at all as to what was to be done with the 'deposit' if the contract was not performed, at p.95:
"In order to enable the vendor (to retain the deposit), in my opinion there must acts on the part of the purchaser which not only amount to delay sufficient to deprive him of the equitable
remedy of specific performance but which would make his conduct amount to a repudiation on his part of the contract."
Counsel for the respondent whilst not necessarily disputing the correctness of the law advanced e submissions of the appellppellants'
counsel, nevertheless submitted that the law must be related to the facts of the case and any 'issues' arising therefrom must be determined, in the absence of express provision, according to the intention of the parties to the contract,
which, in this instance, was to be reduced into writing but for various reasons, never eventuated.
In this d Lord Denman C.J. said in Palmer v. Temple (1839) 48 .R.R. 568 at p.573:
"... in the absence of any specific provision, the question whether ther the deposit is forfeited depends on the intent of the
parties to be collected from the whole instrument."
In similar vein in Howe v. Smith <.cit) where the nature of a 'deposit' wab> was considered and the right of the purchaser to the return of it was rejected, Bowen L.J. said at p.97:
"The question as to the right of the purchaser toreturn of the deposit moneymoney must, in each case, be a question of the conditions
of the contract. In principle it ought to be so, because of course persons may make exactly what bargain they please as to what is
to be done with the money deposited. We have to look at the documents to see what bargain was made."
What then was 'the intent of the parties' > 'the conditions of the contract' that dealtdealt with the 'deposit' in this case? The evidence before the trial magistrate comprised a receipt (Exhibit 2) issued by the defendants (appellant) which reads, in part:
"being for Deposit to the house at 26 Laucala Bay Road.
$125,000.00. Balance $112,500.00"
The language of the receipt clearly describes the payment as a 'Deposit'and the 'Balance'' figure suggests that it is also intended as 'part-payment' of the purchase price and therefore might be said to fall within the 'classic' mould of money paid 'as a deposit and in part-payment of the purchase price'.
There was also the oral evidence of the defendant (at p.26) that at the time of receiving the money, he had somewhat prematurely "... told the plaintiff that the deposit will not be refunded", to which the plaintiff replied, "I will be taking the house in a couple of weeks and no worry."
Then there was the oral eve of the plaintiff (at p.16) that he "paid a sum of $12,500 as deposit ..it ..." which he "understood it was a deposit for house pending finalisation of (his) father's Estate" and later in cross-examination he said (at p.18): "I paid the deposit so that the defendant could sell the property to me."
On the basis of that evidence the trial magistrate held "that the plaintiff (respondent) had at no time agreed that the deposit will be forfeited in the event of the sale falling through for whatever the reason." In the light of the law as earlier discussed however, that was not a finding that the trial magistrate was entitled to make insofar as he considered 'the reason' for the contract falling through was irrelevant.
Not only does the ng fail to take into account the legal nature of a 'deposit' as 'an earn earnest or guarantee for the fulfilment of the contract' but more seriously, it ignores the dictum of Bowen L.J. in Howe v. Smith (op.cit) when his lordship said at p.98:
"It is quite certain that the purchaser cannot insi abandoning his contract anct and yet recover the deposit, because that would
be to enable him to take advantage of his own wrong."
The 'reason' or 'cause' of a contract falling through is plainly a relevant consideration that fundamentally affects the right of an innocent party to either
forfeit or recover any 'deposit' paid and cannot be ignored. Unfortunately in this case it was ignored by the trial magistrate and as a consequence no material findings
were made by him in that regard.
The result of this appeal is not concluded however, by either the trial magistrate's manifest 'error in law' or by his serious omission flowing therefrom, nor in my view, am I required to deal with that rather vexed question upon which the parties and counsels seriously differ. I say this
because of the nature of the submissions of counsel for the respondent on appeal.
In counsel's submission, the present case is not one concerning a 'deposit paid pursuant to a bina binding written agreement which made no provision for either its forfeiture or repayment in the event of
the contract falling through as in the authorities cited by counsel for the appellants, instead, after referring to the legal requirement
that a contract relating to the 'sale of land' must be evidenced by some writing, counsel in his submission writes:
"In this case-
ass=MsoNormaNormal style="margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> (a) no binding contracsted between the parties; and
(b) (ther(there was) no written memorandum or agreement between the parties that the deposit shall be non-refundable."
More particularly, counsel referred to the unsigned Sale and Purchase agreements (Exhibits D3 and 4) as not only evincing an intention on the part of the parties to reduce their agreement into writing but more importantly, the fact
that neither agreement was signed despite having been exchanged by the parties, confirms that they had not reached any consensus
as to the terms of a binding Sale and Purchase agreement. In counsel's words: "Accept the purchase price finalised and deposit paid but anything else was not agreed."
In effect, counsel's submission is that theence merely discloses that the parties were still at the nehe negotiations stage or at most, had orally agreed some basic terms which were to be incorporated into a binding written contract executed by them and therefore,
in the absence of a such a contract, there was no actual or enforceable agreement between the parties, and accordingly, the respondent
was entitled to the refund of his 'deposit' which counsel described in his submissions to the trial magistrate (at p.29) as 'merely (a) holding deposit'.
In Carruthers v. Whitaker and Anor (1975) 2 N.Z.L.R. 667 the New Zealourt of Appeal in rejecrejecting the existence of a concluded contract for the sale of land in that case where the Sale and Purchase Agreement was only signed by the purchaser
"Held: Where parties are proposing ter into a contract the mann manner in which it is to become binding must be gathered from the intentions
of the parties express or implied. In a contract for the sale of land there is a well-known common and customary method of dealing
in a document signed by both the vendor and the purchaser. Normally in such contracts the inference is that the above method is contemplated
by the parties."
Having carefully considered the evidence; the trial magistrate's findings and the submissions of counsels, I am firmly of the view
that the trial magistrate's ultimate conclusion was correct but for slightly different reasons, and I prefer and uphold the submissions
of counsel for the respondent.
In my view the present case under appeal is distinguishable from the author cited by counsel for the athe appellants insofar as those
cases concerned binding agreements in writing which had fallen through as a result of the purchaser's default.
The situation in this case is more akin to that in Casson v. Roberts which hich concerned a parol contract for the sale of freehold land, where the headnote reads:
"Where there is no contract or no contract which can be enforced, the purchaser iser is entitled to a return of his deposit even
though the vendor is able and willing to complete the sale, unless an express or implied agreement to the contrary is established."
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> In rejecting the defendant's claim that the deposit had been forfeited in consequence of the purchaser's non-completion of the purchase,
Romilly M.R. said at p.572:
"Where it is necessary to asin who is to blame for the non-performance of an agreement ment when the Court is asked to determine
whether a deposit paid ought to be returned, it must necessarily do so in a manner most unsatisfactory. When a deposit is paid by
a purchaser to a vendor the presumption is, that it is paid on behalf of the purchaser, and that he was to obtain the benefit of
it on the completion of his purchase: in fact, that it was made in part discharge of the purchase-money. An agreement certainly might
be made that the deposit should be forfeited in case the purchase should not be completed, but this must either be expressed or clearly
implied from the contract itself. It had in many cases, from the terms of the contract, and even from its silence, been held that
a forfeiture must be inferred. There is, however, no authority which holds that the deposit must be considered as forfeited in the
absence of any agreement whatever, or one which could neither be enforced at law nor in equity."
In my considered view the evi and the trial magistrate's findings in this case are capable of supporting the conclusion sion that
the parties had merely agreed to enter into a binding written Sale and Purchase Agreement and accordingly, the payment in this case may be described, in the words of Sargant L.J. in Chillingworth v. Esche (1924) 1 Ch. 97 at p.115:
ass=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> "... as being an anticipatory payment intended only to fulfil the ordinary pury purpose of a deposit if and when the contemplated
agreement should be arrived at."
Warrington L.J. in the same case said said of the 'deposit' paid in that case at p.112:
"it is said that unless the consequence of the payment of the deposit amounts to a guaranteeantee to complete the purchase the
payment of it is perfectly futile. I do not agree, because the purchaser by payment of a deposit shows that he means business. The
purchaser has not bound himself, but in order to show a definite intention he is willing to part with money, and run the risk of
the vendor spending the money and being unable to return it if negotiations are broken off. The purchasers contend that this is a
deposit paid in anticipation of a final contract and nothing more. That seems to me to be the true view."
For his par Pollock M.R. in rejecting the vendor's entitlement to retain the deposit said at p.p.107 (ibid):
"... I think the onus of showing a right to retain (the deposits) rests on the vendor, ... the authority for it is to be found in Baylis v. Bishop of London (1913) 1 Ch.127 at p.140 where Hamilton L.J. said 'the question is whether it is conscientious of the defendant to keep the money,
not whether it is fair for the plaintiff to ask to have it back', and in the cases of 'money had and received' in the old forms of
pleadings one of the allegations was that the purchaser had lost the use of the money."
If I should be wrong howevemy assessment of the evidence in this case, and therefore must assume that a concluded and and binding
Sale and Purchase agreement existed between the parties, then I turn to consider the 'second ground' on which the trial magistrate based his decision, namely, 'unjust enrichment'.
The trial magistrate cited no authority for his conclusi this regard other than to say: "It will be a ce a case of the defendants enriching themselves unconscionably." The modern view of the doctrine of 'unjust enrichment' may be traced to the judgment of Lord Wright in Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd. [1942] UKHL 4; (1943) A.C. 32 where his lordship said at p.61:
"It is clear that any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment
or unjust benefit, that is to prevent a man from retaining the money or of some benefit derived from another which it is against
conscience that he should keep."
There is also the dicta of Denning L.J. >Stockloser v. Johnson (1954) 1 Q.B. 4766 when he said at pp.489/490:
"Ims to me that the cases show the law to be this: ... (2) But when the money is paid as a de a deposit (which is equivalent to a forfeiture clause), then the buyer who is in default cannot recover the money at law at all. He may, however, have a remedy in equity, for, despite
the express stipulation in the contract, equity can relieve the buyer from forfeiture of his money and order the seller to repay
it on such terms as the court thinks fit. That is, I think, shown clearly by the decision of the Privy Council in Steedman v. Drinkle (1916) 1 A.C. 275, where the Board consisted of a strong three, Viscount Haldane, Lord Parker and Lord Sumner."
and later his lordship saidan>
"Two things are necessary: first, the forfeiture ... must be of a pe a penal nature, in the sense, that the sum forfeited must
be out of all proportion to the damage, and secondly, it must be unconscionable for the seller to retain the money."
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Sommerville L.J. for his part said at p.485 (ibid):
"I think that the statements of the law in the cases to which I will refer indicate a wider jurisdiction. I think they indicate
that the Court would have power to give relief against the enforcement of forfeiture provisions, although there was no sharp practice
by the vendor, and although the purchaser was not able to find the balance. It would, of course, have to be shown that the retention
of the instalments was unconscionable, in all the circumstances."
In the present case as to the 'things' enunciated by Denning L.J. (op.cit) the trial magistrate said:
"In this case there is no evidence at all that the defendants has suffered any loss or damage by the sale to the plaintiff falling
through. In fact the defendants have made a profit ... $13,000 more than what they would have got from the plaintiff",
and later he said:
"There is no evidence whatsoever to show the defendants were unable able to sell the property to another offeror as the property
was being held for the plaintiff. There is also no evidence that the plaintiffs (sic) suffered any loss or damage by the delay that was caused ... The evidence is to the contrary."
Given those findings, I am satisfied that the trial magistrate was entitled to and correctly conc that 'in all the cire circumstances' were the defendants to retain or forfeit the plaintiff's deposit: "It will be a case of the defendants enriching themselves unconscionably."
The appeal is accordingly dismissed with costthe respondent.
D.V. Fatiaki
JUDGE
At Suva,
9th Septembe97.
Hba0011j.96s
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