Bally and Bally Investment Ltd v Desmond Llwellyn

• Jurisdiction: St Vincent and the Grenadines
• Judge: Cenac-Dantes, J.
• Judgment Date: 29 May 2025
• Judgment citation (vLex): [2025] ECSC J0529-1
• Year: 2025
• Court: High Court (Saint Vincent)
• Docket Number: CLAIM NO. SVGHCV2023/0143

Between:

Bally and Bally Investment Ltd.

Claimant

and

Desmond Llwellyn

Defendant

[2025] ECSC J0529-1

Before:

The Hon. Mde. Cybelle Cenac-Dantes (Ag.) Judge of the High Court

CLAIM NO. SVGHCV2023/0143

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(Civil Division)

Appearances:

Ronnia Durham-Balcombe counsel for the claimant

Akin John counsel for the defendant

ORAL DECISION

Cenac-Dantes, J.

1 This is my oral decision and I reserve the right to amplify these brief reasons in the event of an appeal.

2 At the end of the trial the court ordered that closing submissions were to be filed by the 23 ^rd May, 2025. No submissions were filed by either party and no application for an extension of time was filed by either party. Notice that judgment was to be delivered on the 23 ^rd May was given to both counsel. On the 27 ^th May, 2025 closing submissions were received by this court from the defendant and filed on even date unaccompanied by any application for an extension of time.

Introduction

3 By claim filed on 12 September 2023, the claimant, acting by its manging director Cameron Balcombe brought an action against the defendant for damages for breach of contract for the defendant's failure to pay the orally agreed sum of $30,000 for the purchase of a concrete mixer.

4 The defendant, by his defence, opposes the claimants claim on the basis that there was no agreement between the parties for the purchase of the mixer and further, if there was a contract, it should be vitiated on the basis that the claimant made material misrepresentations to induce him to purchase the mixer, to his detriment.

5 Prior to trial the parties made the following admissions:

• (1) The claimant offered to sell the defendant a concrete mixer.

• (2) The claimant disclosed to the defendant that the mixer had engine problems.

• (3) The defendant took possession of the mixer and moved it to his property at Villa.

• (4) The claimant offered the defendant a discount on the selling price after the defendant claimed that the mixer had a gearbox issue.

• (5) The defendant is still in possession of the cement mixer.

6 The factual and legal contentions between the parties are as follows:

• (1) The claimant asserts that an oral agreement existed between the parties for the sale of the cement mixer to the defendant at a purchase price of $50,000. However, the defendant disputes this, maintaining that the offer price was $55,000 and that no binding agreement was reached until he had the opportunity to inspect the mixer to determine its suitability.

• (2) The claimant claims that the defendant accepted the offer to purchase the mixer even after it was disclosed that it had an engine problem. The defendant contends that he never accepted the offer to purchase the mixer.

• (3) Notwithstanding the disputed facts as to the existence of an oral agreement the defendant took possession of the mixer and towed it to his property. He later asserted that the mixer had additional issues and requested a further reduction in the asking price due to anticipated repair costs. Both parties acknowledge that the price was adjusted to $30,000. However, the claimant maintains that this adjustment constituted a variation of the oral agreement, whereas the defendant contends that it was merely a modification of the original offer, which he had not yet accepted. The claimant further asserts that an invoice dated March 23, 2022, was sent to the defendant via WhatsApp and remains unpaid. In contrast, the defendant denies receiving the invoice, stating that he was only contacted about the payment in early 2023, at which point he responded that no payment was due as no agreement had been finalized.

• (4) Despite the defendant's assertion that he had not accepted any offer to purchase, he acknowledges, in paragraph 15 of his witness summary, that he invested funds to facilitate the repairs being undertaken by Paul Chapman, a mechanic out of the UK working on the mixer's engine.

• (5) The defendant continues to retain possession of the mixer, and both parties have submitted reports regarding its valuation. The claimant's report, dated April 9, 2024, estimates the mixer's worth at $80,000 following inspection. In contrast, the defendant's appraisal report, dated May 13, 2024, values the mixer—excluding the engine and gearbox—at $15,000. However, since neither party obtained the court's permission to introduce this expert evidence, it has been disregarded.

7 The issues to be determined by this court are:

• (1) Whether there was an oral agreement between the parties for the purchase of the mixer at the varied cost of $30,000, to be paid within three months.

• (2) If such an agreement existed, whether it should be vitiated due to material misrepresentations by the claimant, including the implied condition that the mixer should be reasonably fit for the purpose for which it was to be sold.

• (3) If the court determines there was an agreement for sale that has not been vitiated, what, if any relief is the claimant entitled to.

Claimant's evidence

8 The claimant asserts that he initiated contact with the defendant and offered to sell him the concrete mixer for $50,000 around March 2022, an offer the defendant accepted. At the time of the sale, the claimant informed the defendant that the engine was undergoing repairs in the UK. According to the claimant, the defendant arranged for the mixer to be towed from the claimant's father's property in Georgetown to his own property in Villa. Later, the defendant contacted the claimant, reporting an issue with the transmission and requesting a price reduction to make the purchase worthwhile. In response, the claimant agreed to lower the price by $20,000.

9 The claimant further states that an invoice was sent to the defendant via WhatsApp, but it remains unpaid. Additionally, the defendant was contacted by the claimant's office regarding payment, yet no payment has been received to date. The claimant is unwilling to reclaim possession of the mixer, as it has remained with the defendant for nearly two years.

Defendant's evidence

10 The defendant states that the claimant first contacted him on May 17, 2021, regarding the purchase of the mixer, offering a sale price of $55,000. However, he did not accept the offer and remained silent on the matter. He acknowledges towing the mixer from Georgetown in January 2022, but asserts that this was merely an act of assistance to “help out” the claimant due to their longstanding business relationship. According to the defendant, the claimant repeatedly requested that he store the mixer on his property, citing concerns about theft at the Georgetown location.

11 The defendant explains that his hesitation in accepting the offer was due to two prior “lemons” purchased from the claimant. He maintains that from the time he towed the mixer away in 2022 until he later informed the claimant that he did not want it, he never expressed acceptance of the offer.

12 The defendant asserts that no contract exists. However, if the court finds that a valid contract was formed, he argues that it should be nullified due to material misrepresentations made by the claimant regarding the mixer's condition, specifically its suitability for its intended purpose.

The Law

13 The ingredients to form a valid contract, whether oral or written are long established. The claimant must be able to show that there was not only an offer made and acceptance given but that there was valid consideration and an intention, by words or actions to create legal relations. The very existence of the contract under this claim being in dispute the claimant would have to demonstrate, on a balance of probabilities, that his version of events leading to the conclusion of the agreement were more plausible than that of the defendant.

Finding

14 Having heard the evidence presented by the witnesses in this matter, I am satisfied that a binding contract existed between the parties. The testimony provided by the claimant's managing director was credible, reinforcing the conclusion that there was an offer and acceptance, supported by consideration and an intention to create legal relations. Based on the following reasons, I find that the claimant has proved, on a balance of probabilities that the necessary legal elements of a valid contract have been met and that the parties were bound by its terms.

Analysis

15 Whether a contract has been formed is a mixed question of law and fact. Whether a party intends to be bound by a contract is a matter of fact and what terms are material to a contract is determined by the court on a case-by-case basis.

Offer and Acceptance

16 It is undisputed that the claimant through its managing director made an offer to sell the mixer to the defendant. According to the claimant, he invited the defendant to propose a price, and the defendant proposed $50,000. However, the defendant's account differs—he states that when approached by the claimant, he was invited to make an offer but responded that he first needed to inspect the mixer and receive additional details before considering a purchase. The defendant further asserts that the claimant indicated the mixer could be sold for approximately $55,000, but he neither accepted nor rejected this proposal.

17 The defendant asserts that his reluctance to accept any offer stemmed from two prior transactions with the claimant: a stone roller purchased four years ago and a generator acquired seven years ago. In both instances, the claimant made the offer, which the defendant accepted, and payment was completed within a short period. However, neither piece of equipment ever functioned properly. When questioned, the defendant stated that he had raised concerns about the generator with the claimant, but the issue remains unresolved. He further explained that he chose not to pursue the matter further to avoid...