Blue Haven Enterprises Ltd v. Tully & Anor, Court of Appeal - Privy Council, February 21, 2006, [2006] UKPC 17

Resolution Date:February 21, 2006
Issuing Organization:Privy Council
Actores:Blue Haven Enterprises Ltd v. Tully & Anor


[2006]UKPC 17

Blue Haven Enterprises Ltd v. Tully & Anor (Jamaica ) [2006] UKPC 17 (21 February 2006)

Privy Council Appeal No 57 of 2004

Blue Haven Enterprises Limited Appellant


(1) Dulcie Ermine Tully

(2) Eric Clive Robinson Respondents




- - - - - - - - - - - - - - - -




21st February 2006, Delivered the 29th March 2006

- - - - - - - - - - - - - - - - -

Present at the hearing:-

Lord Nicholls of Birkenhead

Lord Steyn

Lord Hope of Craighead

Lord Scott of Foscote

Lord Brown of Eaton-under-Heywood

- - - - - - - - - - - - - - - -

[Delivered by Lord Scott of Foscote]

The issue on this appeal is whether in the events which have happened the appellant, Blue Haven Enterprises Ltd (``Blue Haven''), can succeed in its claim for unjust enrichment against the 2nd respondent, Mr Robinson. Their Lordships have concluded, in agreement with the trial judge, Langrin J, and the majority in the Court of Appeal, Downer JA and Walker JA (Harrison JA dissenting), that it cannot. To explain why that is so it is necessary to start by recounting the essential facts which led to the claim being made.

The facts

The 1st respondent, Mrs Tully, is the executrix of the deceased owners of an estate in the Blue Mountains region of Jamaica. The estate is about 95 acres in extent. In 1985, when the story begins, the estate was undeveloped (its condition was described as ``ruinate'') and its title was unregistered. But it was eminently suitable for development as a coffee plantation and Mrs Tully wanted to sell it.

By a contract dated 14 November 1985 Mrs Tully contracted to sell the estate to Mr Robinson for the sum of $260,000 (references to $s in this judgment are references to Jamaican $s - their Lordships have been told that in 1985 the rate of exchange was roughly $10 to £1 but that rampant inflation has taken the rate to around $113 to £1). Mr Robinson wanted to develop the estate as a coffee plantation. The estate was described in the contract as containing 130 acres or thereabouts. The discrepancy between 130 acres and 95 acres led not surprisingly to a dispute between Mrs Tully and Mr Robinson. Mr Robinson contended that he was entitled to an abatement of the price to take account of the substantially reduced acreage that Mrs Tully could sell. Mrs Tully disagreed and, after serving a notice to complete, purported to terminate the contract. She put the estate on the market again. Mr Robinson responded by commencing proceedings (No E160 of 1987) for a declaration that he was entitled to a pro rata abatement of the purchase price and for an injunction to restrain Mrs Tully from selling to anyone else.

Mr Robinson's proceedings were successful. On 11 January 1989 Gordon J gave judgment in his favour allowing him a price abatement of $71,000 and granting an injunction restraining Mrs Tully from selling the estate otherwise than in accordance with the 1985 contract ``or from pursuing further any existing contract of sale in relation to the said land otherwise than to [Mr Robinson]''. Mrs Tully appealed but on 13 July 1992 the Court of Appeal dismissed her appeal and on 10 March 1993 the Privy Council dismissed her petition for leave to appeal. So the injunction granted on 11 January 1989 was confirmed.

Unfortunately Mrs Tully had already entered into a contract dated 5 January 1988 to sell the estate to a Dr Oswald White ``or his nominee'' for the sum of $450,000. Blue Haven, a company controlled by Dr White, was his nominee. But it is convenient to continue to refer to Dr White as the intending purchaser of the estate. Dr White, like Mr Robinson, wanted to develop the estate as a coffee plantation. Mrs Tully had told him nothing, and he knew nothing, of her 1985 contract with Mr Robinson or of the litigation regarding that contract.

The 1988 contract required the $450,000 purchase price to be paid in three stages: $67,500 was to be paid as a deposit on the signing of the contract, a further $112,500 was to be paid upon the production of a survey plan of the estate, and the balance of $270,000 was to be paid on completion. Completion was to take place ``on the issue of a Registered Title for the lands'' in the name of Dr White or his nominee. It is interesting to notice that the contract contained a price abatement provision allowing a price reduction if the survey should disclose that the estate contained less than 100 acres. The reduction was to be $3000 per acre for the shortfall. It appears that Mrs Tully and her attorney, Mr Fraser, had learnt something from their experience with Mr Robinson.

The $67,500 and $112,500 together constituted 40 per cent of the purchase price of $450,000. The contract provided that upon the payment by Dr White of 40 per cent of the purchase price (whether the full price or an abated price) he would become entitled to take possession of the estate and on or about 29 September 1988 Dr White was allowed to take possession. Paragraph 9 of the agreed statement of facts says that -

``Dr White paid the purchase price under the [1988] contract and was put into possession of the land by letter dated 29 September 1988...''

The ``letter'' was signed by Mr Fraser, Mrs Tully's attorney, and was expressed to certify that Dr White was ``entitled as from the date hereof to possession ...'' of the estate. The document, and Dr White's entry into possession, predated the grant by Gordon J of the injunction. Their Lordships infer that by 29 September 1988 Dr White had paid 40 per cent of the purchase price. He was under no obligation to pay more than that until completion and there is no evidence or reason to believe that he did so.

Once in possession Dr White set about developing the estate as a coffee plantation. He cleared land for planting and planted some 60 acres with coffee plants. He also put in place some of the necessary infrastructure of a coffee plantation, including the building of workers' cottages, a coffee house and offices and constructing a road. By 1992 the coffee plants were sufficiently mature for a crop to be taken and in 1992/1993 and 1993/1994 Dr White harvested and sold a coffee crop.

Critical factual issues in this case are when Mr Robinson became aware of Dr White's activities on the estate and when Dr White became aware of Mr Robinson's claim to the estate. Mr Robinson's first knowledge that Mrs Tully had contracted to sell the estate to someone else came in August 1988. Mrs Tully had applied for an order dismissing Mr Robinson's 1987 proceedings on the ground of his delay in...

To continue reading