NGUNDU v JOCKSTAR INVESTMENTS (PVT) LTD 2016 (2) ZLR 566 (H)

Flynote

Contract: " termination " cancellation " communication of " written agreement " means of written communication specified in agreement to be followed

Headnote

The plaintiff sought an order for specific performance against the defendant, in terms of an agreement of sale, to pass transfer of immovable property from the defendant developer to the plaintiff. The plaintiff purchased the property through an agent, Nispen Properties. Although it was found that the plaintiff had paid the purchase price to the agent, the agent had not paid the entire sum over to the defendant. The court had to determine whether the agent acted on behalf of the plaintiff as purchaser or the ^— defendant as seller. Had the plaintiff paid the defendant by paying the agent, and was the plaintiff thus entitled to ask for specific performance or was the defendant entitled to cancel the sale tendering a refund of the deposit received? A deposit and an administration fee was paid by the plaintiff to the agent who, in turn, paid the deposit to the defendant. The agent secured an agreement of sale which was handed to the plaintiff. ^— The agreement was only signed by the parties after the deposit was paid. Although the agreement required the balance of the purchase price to be paid in instalments, the plaintiff did not pay the instalments timeously. The plaintiff claimed not to have received a cancellation letter and had taken refuge in a clause that required him to pay penalties for late ^— payments which he claimed to have paid. According to the evidence of the defendant, the agent had not been appointed by it to sell the property, the agent's director having been independently aware that the defendant's property was for sale. Further it was determined that the agent had charged the plaintiff an administration fee and had not raised a typical 5 percent commission against the defendant.

Held, that the onus of proving agency rested on the party asserting such. In the circumstances of this case, the onus rested on the plaintiff.

Held, further, the factual circumstances pointed to the agent acting on behalf of the plaintiff as purchaser. The important point was that the plaintiff remained in default of payment when the agent failed to transmit the balance of the purchase price due to the defendant. The plaintiff was liable for the unpaid amount as the agent was his, and not the defendant's. The plaintiff remained in default and could not claim specific performance on the grounds that he had fulfilled his side of the bargain.

Held, further, whilst the agreement of sale did not specify how notices, such as the defendant's notice of cancellation, should be served, where an agreement provides for a process to be followed by the parties in written communication, it is important the stipulated process be observed, so as to avoid the situation where the other party alleges that they have not received the communication.

Held, further, the defendant was, in terms of the agreement, to send notices by registered mail or hand delivery to an address specified by the plaintiff in the agreement. Since the defendant had delivered notices to the agent and not the plaintiff's nominated address, the agreement had not been cancelled correctly.

Held, further, the plaintiff's claim for the delivery by the defendant of the immovable property, alternatively, for the payment by the defendant of the equivalent value of the stand was dismissed.

Held, further, the agreement of sale concluded with the plaintiff in respect of the property was cancelled.

Held, further, the defendant was to repay the plaintiff the sum of $10 000.

Held, further, each party was to pay their own costs.