Kelly and Jones v Warner et Al

JurisdictionAntigua and Barbuda
JudgeHenry, J.
Judgment Date07 November 2013
Neutral CitationAG 2013 HC 16
Docket NumberANUHCV 730 of 2010
CourtHigh Court (Antigua)
Date07 November 2013

High Court

Henry, J.

ANUHCV 730 of 2010

Kelly and Jones
and
Warner et al
Appearances:

Leslie-Ann Brisset George for the claimants

Gail S. Pero-Weston for the first and second defendant

Loy L. A. Weste for the third defendant

Civil practice and procedure — Pleadings — Striking out of Statement of Case.

Henry, J.
1

This is an application by the 1 st and 2 nd defendants for an order pursuant to Rule 26.3 (1)(b) of the Civil Procedure Rules 2000 that the Amended Fixed Date Claim Form and Amended Statement of Claim filed on 11 th January, 2013, to be struck out, and that the costs of this application be borne by the Claimants/Respondents.

2

The grounds of the application are:

  • (a) The amended claim fails to establish or adequately establish any reasonable cause of action against the 1 st and 2 nd defendants, as well as any or any adequate particulars of damages suffered by the claimant, as a result of any act and/or omission of the 1 st and 2 nd defendants.

  • (b) Further, the claimants have failed in respect of the entire amended statement of case to provide any or any sufficient particulars of breach by Ernest R. Henry, deceased and by extension the 1 st and 2 nd defendants as Executors of his estate. Similarly, the claimants have failed to establish any or any sufficient nexus between the acts or omissions of Ernest R. Henry and the damages alleged suffered by the claimants.

  • (c) Further or in the alternative, the said Amended Claim Form and Amended Statement of Claim in its entirety does not establish or adequately establish any legal nexus between the claimant and the 1 st and 2 nd defendants insofar as it concerns any duty and or obligation owed to the claimant by the 1 st and 2 nd defendants in their respective or joint capacity as Executors of the Estate of Ernest R. Henry.

  • (d) Further, that at paragraph 3 of the Amended Statement of Claim, the claimants allege that “… an Agreement for Sale/Purchases and Powers of Attorney, were executed by the vendors, to enable the Defendants' Agent and Administrator of their estate, Ernest R. Henry to execute Instruments of Transfer.” Subsequent matters concerning the acts and/or omissions or involvement of Ernest R. Henry, deceased were pleaded at paragraphs 4, 7, 8, 9, 11 and 13 of the Amended Statement of Claim. The said paragraphs taken separately or together fail to provide any or any adequate particulars of a contractual relationship or legal obligation between Ernest R. Henry and the claimants and consequently any conceivable breach of contract by the said Ernest R. Henry and by extension the first and second defendants.

Accordingly, they request that the said paragraphs should be struck out as disclosing no reasonable cause of action as against the 1 st and 2 nd defendants as Executors of the Estate of Ernest R. Henry

3

In their Amended Fixed Date Claim Form the Claimants claim against the defendants James Warner and Nigel Daniel as the executors of the Estate of Ernest Henry and the other three defendants specific performance of a written agreement of Sale/Purchase entered into on the 25 th April 2007, between the claimants and the defendants, whereby the defendants Merle Henry and Audrey Nicholls agreed to sell and the claimants agreed to purchase a property situated at Ffryes Estate, St. Mary's, Antigua, Registration Section South West, Block # 551184A, Parcel # 330. The claimants state that they will rely upon the terms and conditions of the said contract at the hearing of the action. They also seek alternatively, damages in lieu of specific performance.

4

In regard to the claimants claim against the Executors of Ernest Henry, the Amended Statement of Claim alleges that Audrey Nicholls and Merle Henry (the vendors) agreed to sell and they agreed to purchase the said property. The claimant Rose Marie Kelly, travelled to Trinidad where the vendors lived to meet and to negotiate the Agreement of Sale. At the Vendors' Solicitors, an Agreement for Sale/Purchase and Powers of Attorney, were executed by the Vendors to enable the defendants' agent and Administrator of their estate, Ernest R. Henry, to execute Instruments of Transfer.

5

The Statement of Claim further states that it was a term of the Agreement that in addition to the purchase price, the claimant would pay all legal fees, transfer taxes, and fees associated with the transfer of the property. The claimant paid the agreed purchase price and was at all material times ready willing and able to pay all legal fees, transfer taxes and fees associated with the transfer of the property and otherwise to perform their obligations under the Agreement. However, Ernest Henry demanded a sum of money from the claimants, before he would execute the Instrument of Transfer. The claimants refused to pay him and the transfer was delayed.

6

Further, in early June 2008, Ernest Henry became ill, and travelled to the United States for treatment, and the execution of the Instrument of Transfer was further delayed. On 27 th June 2008, however, the daughter of Audrey Nicholls delivered two letters to the claimant Rose Kelly which purported to...

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