Calvin Reimer v Peter Petkau

• Jurisdiction: Belize
• Judge: Goonetilleke, J.
• Judgment Date: 17 April 2024
• Docket Number: CLAIM No. CV 737 of 2022
• Court: Supreme Court (Belize)

Between:

Calvin Reimer

Claimant

and

Peter Petkau

Defendant

CLAIM No. CV 737 of 2022

IN THE HIGH COURT OF BELIZE

Damages; Agreement — part oral, part written; an allegation not pleaded cannot be raised in argument at the trial

Appearances:

Mr. Darrell Bradley for the Claimant

Ms. Payal B. Ghanwani for the Defendant

Goonetilleke, J.

1 The Claimant has by Claim Form dated 28 ^th October 2022 claimed a sum of Sixty-Two Thousand and Eighty-Five Dollars ($62,085.00) as damages for breach of contract. Alternatively, the claimant claims damages on a quantum meruit basis for work done. The claimant also claims for specific performance of a further agreement to transfer two lots on the defendant's land.

Background

2 The defendant bought a parcel of land, 20.03 acres in extent, west of the Hummingbird Highway in the vicinity of the Armenia Village, Cayo District. The defendant thereafter engaged the claimant to subdivide the said parcel of land into fifty-nine (59) residential parcels and open spaces, and to market and sell the said fifty-nine (59) parcels. It was agreed between the parties that each parcel would be sold for at least Ten Thousand dollars ($10,000.00) and that the claimant would receive ten per cent (10%) of the sale price of each parcel sold by him. The agreement between the claimant and the defendant in this regard is an oral agreement. The subdivision was provisionally approved by the Ministry of Natural Resources, Petroleum and Mining on or about 17 ^th September 2021, by letter addressed to the claimant for and on behalf of the defendant. 1

3 The claimant asserts that he was the exclusive selling agent of the property and that he was to receive ten per cent (10%) of all sales irrespective of who sold the parcels. In addition, according to the claimant, he was the collecting agent who made all collections, did the closings, arranged the sales contracts and kept the records. He states that the sales price would be paid on an instalment basis and that he would deduct his ten per cent (10%) as commission and hand over the balance ninety per cent (90%) to the defendant, in cash. According to the claimant, this was done in small amounts on an instalment basis. The claimant also asserts that in April 2022, he entered into a written contract with the defendant to buy two (2) of the lots of land from the larger land that was divided into fifty-nine (59) parcels and that the payment for these two lots was to be deducted from the commissions the claimant would receive.

4 The defendant only admits that he engaged the claimant to arrange the subdivision of the larger land and to have it registered with the Lands Department and that he agreed to pay a ten per cent (10%) commission on land sales to the claimant. The defendant denies that there was an agreement that the claimant was the sole or exclusive sales agent of the land and also denies that the purchase price of the two lots agreed to be

sold to the claimant were to be paid by deductions from the claimant's commissions. The defendant denies having seen any of the receipts of payment and the receipt books produced by the claimant and also denies having been given or seen a spreadsheet detailing the accounts and sales of the lands maintained by the claimant

5 On or about 19 ^th January 2022, the claimant, the defendant and a third party by the name of Edwin Anthony Cruz entered into a brief tri-partite written agreement 2 which allowed the third party, Mr. Cruz, to also sell parcels of land on behalf of the defendant, while the sales agreements, collections and title work of all agreements in regard to all the sales were to be done by the claimant.

6 The written tri-partite agreement, partly type-written and partly handwritten, is as follows:

[Type written] “ January 19, 2022

Edwin Anthony Cruz is offering to bring buyers for the lots being sold by Peter Petkau at the entrance of Agua Viva. Lots are being sold for $10,000.00 per lot. Whatever price he sells for above $10,000.00 will be profit for Edwin and will be paid out of the first down payment given he can negotiate a big enough down payment to cover the down Payment required by Peter and his commission.

All sales agreements, collections and Title work will be done by Calvin Reimer.”

[Hand written] “Commission will be paid 50% on contract and 50% in 3 months. Down payment will be $ 3000.00.”

[Signed]; “Calvin Reimer, Peter Petkau, Edwin Anthony Cruz.”

7 The existence of this written agreement dated 19 ^th January 2022, is not disputed. However, the interpretation of this basic and short written agreement is also disputed by the parties. According to the claimant, this written agreement was required because the defendant wanted Mr. Cruz (Edwin) to engage in land sales as well. The claimant stated in evidence that he was not opposed to Edwin also promoting and selling lots on the condition that the claimant was to receive the ten per cent (10%) commission on all lots that were sold, irrespective of who sold it. Thus, the claimant asserts that on the basis previously agreed with the defendant, the claimant would get ten per cent (10%) of Ten Thousand Dollars ($10,000.00) for all the lots sold; Ten Thousand Dollars ($10,000.00) being the marked price as referred to in the written agreement. Edwin would therefore have to earn his commission or profit by obtaining a higher price than Ten Thousand Dollars ($10,000.00) and could keep the difference. This arrangement, according to the claimant is what is reflected in the written agreement, allowing both Edwin and the claimant to engage in selling lots without affecting the claimant's previous arrangement with the defendant to receive commissions on all lots sold. The claimant also states that he was entitled to a closing fee of Five Hundred Dollars ($500.00) and this is why the written agreement confirmed that irrespective of who did the selling, he would do all the collections, the paperwork and the record keeping.

8 The defendant's version of this written agreement is that he had no exclusive sales agreement with the claimant and that as the claimant was slow in selling, he engaged Edwin who did a better job and sold lots faster. When this happened, Edwin and the claimant started fighting and so it required a written agreement with this arrangement. The defendant also asserted that nowhere in this written agreement is it stated that the claimant would get a commission on all lots sold, irrespective of who sold it. According to the defendant, Edwin was able to market lots at Thirteen Thousand Dollars ($13,000.00); this is why the handwritten part of the agreement refers to a Three Thousand Dollars ($3,000.00) down payment, whereby the defendant would pay Edwin his profit in two (2) instalments; fifty per cent (50%) on the down payment and fifty per cent (50%) in three (3) months. The defendant also stated that he regretted the last part of the agreement enabling the claimant to do all the closings as the buyers wanted to select their own closing agent. The defendant stated that he wanted to change this arrangement, but could not, as the claimant refused. The defendant alleges that thereafter, the relationship broke down as the claimant was not cooperating; taking time to do closings and thereby losing buyers. The defendant states that for these reasons he set up his office to do the collections and terminated the agreement with the claimant.

9 Relevant to the background is also the fact that the defendant paid Six Thousand Dollars ($6,000.00) to the claimant initially to obtain provisional approval for the subdivision of the land in question. The claimant while acknowledging receipt of this sum, disputes that this Six Thousand Dollars ($6,000.00) was his fee for the subdivision. He states that it was a facilitation fee paid to an unnamed third party to speed up the provisional approval of the subdivision of the land. The counsel for the defendant, while cross-examining the claimant asked him if he paid a bribe to get the sub-division approved, and the claimant responded by stating that “You can call it what you like”. The court thereafter questioned the claimant as to whether he made any payments to any government official dealing with the subdivision of the land, to which the claimant replied that he paid the money to a third party to facilitate and expedite the transaction.

10 The claimant asserts that he was not paid for applying for the subdivision and preliminary work because he was to be the exclusive sales agent of this land when it was subdivided. The claimant went ahead with the work on this basis. The claimant has not quantified and sought in his claim any sum for applying for the subdivision of the land or for any preliminary work for the sale of the land. The defendant on the other hand states that he paid Six Thousand Dollars ($6,000.00) to the claimant for the subdivision of the land. The sum paid by the defendant is not disputed by the claimant. The claimant was unable to provide a receipt for paying the Six Thousand Dollars ($6,000.00) to the third party as a facilitation fee, stating that these payments were made in cash.

Issues

11 The following issues arise for determination in this matter:

• A. Did the claimant have exclusive selling rights for the subdivided lots on the defendant's land?

• B. If not, how many lots were sold by the claimant entitling him to a commission of ten per cent (10%) of ten thousand dollars ($10,000.00) per lot?

• C. Did the claimant have an exclusive right to be the closing agent of all land sales of the subdivided lots?

• D. How much payment is the claimant entitled to?

• E. Is the claimant in any event not entitled to succeed in his claim in view of the legal objection of the defendant taken up during cross-examination of the claimant, that the sale of the subdivided lots is not legal until there is an approved subdivision?

• F. Is the...