Creque v. Penn (British Virgin Islands )

Creque v. Penn (British Virgin Islands ) [2007] UKPC 44 (27 June 2007)

Privy Council Appeal No 36 of 2005

Nathalie Creque Appellant

v.

Cecil Penn Respondent

FROM

THE COURT OF APPEAL OF

BRITISH VIRGIN ISLANDS

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL

Delivered the 27th June 2007

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Present at the hearing:-

Lord Bingham of Cornhill

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Lord Carswell

Lord Mance

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[Delivered by Lord Walker of Gestingthorpe]

This appeal is concerned with the sale of two parcels of land (plots 125 and 126) in Virgin Gorda. The vendor was Mrs Nathalie Creque (the appellant before the Board) acting as administratrix of her late husband's estate. The purchaser was Mr Cecil Penn (the respondent, though he has not appeared, before the Board).

The sale was not preceded by any written contract. It was effected by two transfers executed on 22 July 1996. The transfers were in the standard form set out in the Third Schedule to the Registered Land Rules and contained the printed words "In consideration of . . . (the receipt whereof is hereby acknowledged)". The words "the sum of $40,000" and "the sum of $60,000" were typed in on the transfers of plot 125 and plot 126 respectively. But Mrs Creque claimed that when she executed the transfers she had not in fact received $100,000 or any part of that sum; and that her subsequent attempts to attain payment produced only $14,800 from Mr Penn. Her case was that she executed the transfers without the purchase price having been paid because Mr Penn was a friend and she trusted his statement that he needed the executed transfers in order to obtain finance from a bank.

In 2002, shortly before the end of the limitation period, Mrs Creque commenced proceedings against Mr Penn, claiming $85,200 as the balance of the purchase price, and interest from 22 July 1996 (there were further and alternative claims which are no longer relevant). Mr Penn's pleaded case was that he had paid the purchase price in full on execution of the transfers. His case at trial was that the consideration took the form of the release of Mrs Creque from pre-existing indebtedness to him under various commercial transactions.

The case was heard by d'Auvergne J who on 25 May 2004 delivered a reserved judgment in favour of Mrs Creque. The judge accepted Mrs Creque's evidence and found the evidence of Mr Penn inconsistent and unreliable. Her judgment contained some paragraphs concerned with the parole evidence rule but no discussion of section 106 of the Registered Land Act (which neither side seems to have referred to). The judge ordered Mr Penn…

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