The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The "sad case" of a Freeport businessman, who paid off a company's $103,259 mortgage debt only for the property to be sold from under him, has won "considerable" judicial sympathy.

But the Court of Appeal said it was still unable to rule in Cyril Minnis' favour because he never had a contract with Commonwealth Bank mandating that the BISX-listed lender give him the title documents to the mortgaged property.

Appeal justice Stella Crane-Scott, in a unanimous verdict, said Mr Minnis had "pursued a hopeless claim" against the bank when he should instead have targeted the company that plotted to sell the building without his knowledge despite settling its debts.

"This was indeed a sad case. While the court had considerable sympathy for the predicament in which Mr Minnis found himself, we were unable to find merit in any of his grounds of appeal," she concluded.

The businessman's loss stemmed from his involvement with Talbot Enterprises and its owner, Almondo Talbot, who had secured a Commonwealth Bank mortgage loan that was secured on the company's property in Freeport's Civil Industrial Area in late 1999.

Mr Talbot, in February 2006, hired attorney Tiffany Dennison and her firm, Dennison & Company, to act for him in selling the mortgaged property to an entity called "KFL". A sales agreement was executed by both parties five days after Dennison & Company's hiring, with the conveyance transferring ownership executed on June 19, 2006.

Commonwealth Bank had already delivered the title deeds to Dennison & Company, and these were to be held in escrow subject to Mr Talbot and his company settling the full mortgage debt.

"Notwithstanding that a sale to KFL was in progress, in August 2006, Mr Talbot discussed the possible sale of the property with Mr Minnis, noting that the mortgage to Commonwealth Bank was in arrears," the Court of Appeal recorded.

"Mr Minnis was, however, not informed of the ongoing sale of the property to KFL, which was well underway. Mr Minnis and Mr Talbot agreed that Mr Minnis would pay off the balance of the mortgage debt owed by Talbot Enterprises to the bank in exchange for Talbot Enterprises mortgaging the captioned property to him."

Hal Tynes, the attorney for Mr Minnis, subsequently prepared a letter and cheque to Commonwealth Bank to pay off the $103,259 owed by Talbot Enterprises.

"The letter informed the bank that Mr Minnis had agreed to liquidate Talbot Enterprises' mortgage debt in exchange for Talbot Enterprises mortgaging the property to him," the Court of Appeal said.

"The letter further requested the bank to forward the relevant title deeds for the property to Mr Tynes in order to facilitate preparation of a 'Deed of Transfer of Mortgage' from the bank to Mr Minnis.

"On the same day the letter was issued, a meeting took place at the bank between the bank's representative, Mr Tynes, Mr Minnis and Mr Talbot. Talbot Enterprises' mortgage was settled in full with the bank undertaking to provide a satisfaction of mortgage in short order," the Court of Appeal continued.

"In the weeks following satisfaction of the mortgage debt, and despite numerous requests, Mr Minnis never received the original documents to the property requested in Mr Tynes' letter or even the satisfaction of mortgage promised at the meeting. On making further inquiries he discovered that Mr Talbot and Talbot Enterprises were in the process of completing a sale of the property to KFL.

"The bank was unable to retrieve the title documents from Ms Dennison. Mr Minnis later discovered that the title documents were being held in escrow by Ms Dennison pending completion of the sale of the property to KFL.

"Ms Dennison was also unable to release the title deeds, having been mandated by a Supreme Court order made by Acting Justice Norris Carroll to complete the sale agreement between Talbot Enterprises and KFL."

Having effectively been 'swung' over the mortgage debt settlement, and used by Talbot Enterprises to finance completion of its deal, Mr Minnis initiated legal action against Commonwealth Bank and Ms Dennison. He alleged that the former had committed a breach of contract, while the attorney was accused of "illegal possession of documents".

The Supreme Court dismissed both claims by Mr Minnis, who was not represented by an attorney when he filed his case. His attorney at the Court of Appeal, Jethro Miller, agreed with Ms Dennison's counsel that she was "not proper party" to the case and should be discharged.

Dealing with the appeal against Commonwealth Bank, Justice Crane-Scott said Mr Tynes' letter was an "offer" and there was "absolutely no evidence" it had been accepted by the bank. She added that there was only evidence of a "counter offer" in the form of the 'satisfaction of mortgage'.

"It was regrettable that in crafting his pleadings Mr Minnis (representing himself) obviously did not fully appreciate the nuances of the subrogation principle, and ultimately pursued a hopeless claim for breach of contract against the bank when the claim should have been against Talbot Enterprises and/or possibly Mr Talbot as an agent of Talbot Enterprises," the Court of Appeal found.

"Mr Minnis' pleadings in the court below alleged a breach by the bank of a contract between himself and the bank, which the bank denied. In contractual terms, Mr Tynes' letter mentioned in Mr Minnis' pleadings was (as the judge found) no more than an offer which was not accepted by the bank which, in exchange for Mr Minnis' manager's cheque, merely undertook to provide a satisfaction of mortgage and no more. In short, there was, quite simply, no contract between Mr Minnis and the bank for delivery to him of the relevant title deeds."