Gordon v Havener (Antigua and Barbuda)

In a contract for the sale of land, the purchaser's promise to pay the agreed price is consideration. Failure to pay is a breach of performance, not an absence of consideration. If the payment obligation is an innominate term, the seller may terminate where the breach deprives the seller of substantially the whole contractual benefit. After termination for the purchaser's breach, the purchaser cannot obtain specific performance or damages for breach by the seller. Proprietary estoppel cannot be used by a contract-breaker where the relevant promise is contained in the contract, or is inextricably tied to it, and the innocent party has terminated for breach. Alleged expenditure relied on as detriment must also be sufficiently particularised, although that point was unnecessary to the decision.

Mr Gregory Gordon appealed from the Court of Appeal of the Eastern Caribbean Supreme Court in Antigua and Barbuda, which had dismissed his appeal from the judgment of Cottle J dated 6 August 2015. The dispute concerned three contracts under which Mr Gordon said that his sister, Mrs Jacqueline Havener, had agreed to transfer three plots of land to him. He claimed specific performance or damages for breach of contract and, alternatively, a remedy for proprietary estoppel.

The lower courts found that a US$3,000 payment was not payment of the contractual prices. The Court of Appeal treated this as a performance issue rather than an absence of consideration and held that the alleged proprietary estoppel representations were inseparable from the contracts. The central questions were the effect of non-payment and whether proprietary estoppel remained available after termination of the contracts for the purchaser's breach.

The Board advised Her Majesty that the appeal should be dismissed.

1. Payment and concurrent findings. The contractual consideration moving from Mr Gordon was his promise to pay US$1,000, US$10 and US$10 under the respective contracts. The US$3,000 payment did not correspond with those prices and was made at times that did not align with the contracts. The Board accepted the concurrent factual findings of the lower courts that it was not contractual consideration. The Board also referred to its established practice, illustrated by Dass v Marchand [2021] UKPC 2, of not going behind concurrent findings of fact.
2. Effect of non-payment. Mr Gordon had paid none of the agreed purchase prices. Even if the payment obligations were innominate terms rather than conditions, the consequences of the breach deprived Mrs Havener of substantially the whole benefit of each contract. Applying the principle stated in Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26, Mrs Havener was entitled to terminate. She had exercised that right by making clear, including through defending the litigation, that she treated the contracts as at an end. Mr Gordon was therefore not entitled to specific performance, and could not recover damages for breach because Mrs Havener had not breached the contracts.
3. Proprietary estoppel. In this context, proprietary estoppel requires a promise to confer rights in land, detrimental reliance, and unconscionability in the promisor's resiling from the promise. The Board referred to Crabb v Arun District Council [1976] Ch 179, Cobbe v Yeoman's Row Management Ltd [2008] UKHL 55 and Thorner v Major [2009] UKHL 18. A contract-breaker cannot invoke proprietary estoppel where the relevant promise is contained in the contract, or is inextricably tied to it, and the contract has been terminated for breach by the innocent party. Enforcement through estoppel would be inconsistent with the terminated contractual arrangement and would not prevent unconscionable conduct.
4. Further observation. Although unnecessary to the result, the Board considered that the alleged expenditure was not sufficiently clarified to establish relevant detrimental reliance. The dates of expenditure, its allocation between plots, and whether expenditure on two plots was incurred in a lessee capacity were unclear.

1. Privy Council: In [2021] UKPC 26, the Board advised Her Majesty that the appeal should be dismissed.
2. Court of Appeal of the Eastern Caribbean Supreme Court (Antigua and Barbuda): Dismissed Mr Gordon's appeal, holding that non-payment was a defect in performance rather than formation and that proprietary estoppel was unavailable where the representations were tied to enforceable contracts.
3. Eastern Caribbean Supreme Court (Antigua and Barbuda), Cottle J: By judgment dated 6 August 2015, dismissed the contractual and equitable claims.