IN THE HIGH COURT OF JUSTICE BETWEEN AND

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. CV BETWEEN CANDICE MAHADEO Claimant AND GEISHA MAHADEO NIRMAL MAHADEO Defendants Before the Honourable Madam Justice Margaret Y Mohammed Dated the 26 th January, 2018 APPEARANCES Ms. Mandavi Tiwary instructed by Ms Denyse Gouveia Attorneys at law for the Claimant. Mr Anthony Manwah and Ms Sherille Nicholas Attorneys at law for the Second Defendant. JUDGMENT 1. The focus of this action brought by the Claimant is a parcel of land situate at No. 194 Eastern Main Road, Barataria ( the disputed property ). The Claimant and Defendants are siblings and they are the joint owners of the disputed property which they inherited from their father, Sonny Mahadeo who died testate on the 25 th January 2008 ( the deceased ) having made a will dated the 18 th April A Deed of Assent dated the 14 th July 2009 ( the Deed of Assent ) was executed which vested the fee simple title in the disputed property to the Claimant and Defendants as joint tenants. The action proceeded against only the Second Defendant, the First Defendant was not served with the proceedings. Page 1 of 15

2 2. There are two single-storey structures erected upon the disputed property. The front building ( the front building ) has been rented by the Second Defendant to the operators of a bar and he has collected rent for his sole use and benefit. While the back building ( the back building ) is being used as his residence. After the death of the deceased, the Second Defendant remained in exclusive occupation of the disputed property and he has refused to allow the Claimant access or entry upon it. 3. Shortly after the Deed of Assent was registered, the Claimant s Attorneys at law wrote to the Second Defendant offering to purchase his share of the disputed property. Two letters were written in April 2009 and no response was forthcoming from the Second Defendant until 6 th July 2009 when Hasine Shaikh, Attorney-at-Law, indicated that the Second Defendant wished to purchase the shares of the Claimant and First Defendant. The Claimant then entered into negotiations with the Second Defendant to receive the monetary equivalent of her share in the disputed property. However, the Second Defendant refused to carry on the negotiations in good faith or to pay to the Claimant her share of the true market value. In an effort to have the matter resolved amicably, by letter dated the 26 th November 2015, the Claimant offered her share of the disputed property to the Second Defendant for the sum of five hundred thousand dollars ($500,000.00). However, she received no response. The Claimant s case is that she has not been able to benefit from her share in the disputed property. As a result she claims the following reliefs: a) An order that the disputed property be partitioned in 3 equal shares; b) An order that the disputed property be sold in lieu of partition and the proceeds be distributed among the joint owners of same; c) A one-third share of all rents received from the disputed property; d) A mandatory injunction requiring the Second Defendant to allow the Claimant access to the disputed property; e) Costs; f) Any such further or other relief as the Court deems fit. 4. The Second Defendant s case was that the deceased, promised him that if he replaced the old wooden front building with a new building, (that is the front building) the disputed property Page 2 of 15

3 would be his. In reliance of that promise, the Second Defendant and the deceased borrowed $100, from Scotiabank and they agreed that the loan would be repaid solely by the Second Defendant. The Second Defendant replaced the wooden building with a new concrete and steel building and repaid the loan with his own money. 5. The Second Defendant admitted that he agreed to purchase and the Claimant agreed to sell her share in the property for $500, This sale was expected to be completed nine months from the date of the agreement on 29 th April 2016 ( the Agreement ). However, the Claimant refused to complete it. 6. Subsequently, the First Defendant agreed to sell her share in the disputed property to the Second Defendant for $400, by agreement dated the 7 th June The Second Defendant averred that with the acquiescence of the Claimant and the First Defendant, he constructed a pet shop and a roti shop in the front building and he undertook further renovations to the back building. 7. The Second Defendant counterclaimed against the Claimant that apart from his one-third interest in the disputed property by virtue of the Deed of Assent, and by reason of his expenditure of his money on the disputed property, he has an additional interest since he has expended funds on it with the consent of the Claimant and the First Defendant. He relied on the doctrine of proprietary estoppel. He also claimed that the Claimant did not respond to his letter of 12 th January 2017, in which he indicated an intention not to be bound by the Agreement. 8. The Second Defendant counterclaimed for the following reliefs: i. Specific performance of the Agreement, by an order compelling the Claimant to sell her unencumbered share of the disputed property to the Second Defendant at the price of $500, Page 3 of 15

4 ii. A declaration that, apart from his legal one-third interest in the disputed property, the Second Defendant has an equitable interest in it. iii. That such equitable interest be ascertained by the Court. 9. In the Reply, the Claimant refuted the Second Defendant s defence. She averred that on the 28 th April 2016, she had a conversation with the Second Defendant in which he indicated that he needed to apply for a mortgage loan in order to obtain the money to purchase her one-third share in the disputed property. The Claimant agreed to allow the Second Defendant a period of nine months to obtain the money to purchase her one-third share. The value of that share had not been discussed between them and the Claimant denied that it was agreed that she would accept the sum of $500, for her one-third share. 10. On the 29 th April 2016, the Claimant was visited at her workplace by a friend of the Second Defendant, Mr. Michael Caballero who asked her to sign a document. She signed the document without reading it, however when she did, she immediately called Mr. Caballero indicating that she never agreed to the term relating to the value of her interest in the disputed property and she did not intend to be bound by same. She admitted that she was willing to sell her one-third share to the Second Defendant and she was willing to allow him a period of nine months within which to sell same to her, but she never discussed a price with him and she intended to sell her share for the assessed market value. 11. The Claimant averred that she had received four valuation reports through her Attorneys-atlaw which indicated that the most recent valuation report dated the 2 nd May 2016 stated the value of the disputed property was $2,400, As a result of this the Claimant sent a further proposal to the Second Defendant dated the 5 th December The Claimant stated that the additions to the disputed property undertaken by the Second Defendant were done without her consent. Further, the Agreement that existed between the Claimant and the Second Defendant was never for a specified sum but rather it was to allow Page 4 of 15

5 the Second Defendant the time within which to obtain money to enable him to purchase the Claimant s interest. She denied that the Second Defendant is entitled to the relief sought. The Issues 13. The issues to be determined are: (a) Did the Claimant agree to sell the disputed property to the Second Defendant in the Agreement and if so, is it enforceable? (b) Has the Second Defendant acquired an additional interest in the disputed property and if so what is the value of the additional interest? (c) Is the Claimant entitled to one third of the rent received from the disputed property since the Deed of Assent? 14. At the trial each party gave evidence on his/ her own behalf and there were no other witnesses. It therefore came down to the credibility of each party s evidence and which party s case was more plausible. Did the Claimant agree to sell the disputed property to the Second Defendant in the Agreement and if so is it enforceable? 15. Counsel for the Second Defendant submitted that the Claimant agreed to sell her one third share in the disputed property to the Second Defendant for $500, and that this agreement is contained in the document signed by the Claimant dated 29 th April, 2016 and exhibited as NM6 in the Second Defendant s witness statement. 16. It was argued on behalf of the Claimant that the Second Defendant has no case against the Claimant since the document exhibited as NM6 in the Second Defendant s witness statement is not in the correct form and the circumstances under which the Second Defendant orchestrated the execution of the said document was designed to hoodwink the Claimant into accepting a sum without the benefit of legal representation when he was well aware that the instant matter was before the Court. Page 5 of 15

6 17. In paragraphs 5 and 6 of the Defence the Second Defendant pleaded that he agreed to purchase and the Claimant agreed to sell her share in the disputed property for $500,000, which sale was to be completed 9 months from the 29 th April 2016 and this was confirmed by the Claimant by her letter dated the 29 th April 2016 to the Second Defendant ( NM6 ) but to date the Claimant has refused to comply with the Agreement. 18. In response to the aforesaid averments, at paragraphs 2 and 3 of the Reply, the Claimant averred that around the 28 th April 2016 she had a conversation with the Second Defendant where he indicated that he needed to apply for a mortgage loan to obtain the money to purchase her one third share in the disputed property. She agreed to allow him a period of 9 months to obtain the money for the purchase but there was no discussion on the value of her one third share and she denied that she agreed to accept $500, With respect to the document NM6 the Claimant averred that she did not prepare it. Rather it was brought by Mr. Michael Cabellero to her workplace the day after her discussion with the Second Defendant. She pleaded that she signed it without reading it. But upon ascertaining the contents of the document she called Mr Caballero and indicated that she never agreed to the value of her interest as $500, and she was not bound by it. She admitted that she is still willing to sell her share to the Second Defendant and to give him 9 months to complete the sale. 19. The Claimant s evidence was that her Attorney-at-law wrote two letters to the Second Defendant dated 2 nd April 2009 and 15 th June 2009, which expressed her desire to purchase the Second Defendant s share in the disputed property and suggested that a valuation be obtained. The Claimant eventually received a letter from the Second Defendant s Attorney indicating that he would like to purchase the Claimant and First Defendant s share in the disputed property. However since that time he has continued to frustrate all attempts made by the Claimant to settle the matter. In support of this evidence the Claimant relied a series of letters from the 2 nd April 2009 to the 5 th January 2016 which were written by her Attorney at Law to the Second Defendant or his various Attorneys at law which I will address shortly. 20. The Claimant also testified that she had agreed to sell her one third interest in the disputed property to the Second Defendant and she orally agreed with him to allow him nine months to Page 6 of 15

7 pay her for her share. On the 29 th April 2016, the Second Defendant sent a friend with an already drafted letter to the Claimant for her to sign as to what they had agreed upon the previous day. A month later she received a document purporting to be an Agreement for Sale dated June 2016 which she refused to sign because the sum of $500, was inserted in the agreement drafted by the Second Defendant s Attorney. 21. In cross examination the Claimant testified that she did not refuse to complete the sale. She said when she met with the Second Defendant there was no discussion about money. 22. In the Claimant s Attorney at law first letter to the Second Defendant dated the 2 nd April 2009 she was clear that she wanted to have her interest in the disputed property resolved amicably with the Second Defendant. In that letter she suggested the names of three valuators to conduct a valuation to determine the market value of the disputed property. There was no response from the Second Defendant and on the 15 th June 2009 the Claimant s Attorney at law wrote to the Second Defendant requesting a response. In a letter nearly two years after dated the 2 nd February 2011 the Claimant s Attorney at law repeating the request to have a valuation conducted and that she was willing to have it prepared to move the matter forward. There was still no response from the Second Defendant and on the 17 th August 2011 the Claimant s Attorney at law wrote to the Second Defendant complaining about his lack of response and that he was proceeding with additions to the disputed property without her consent. On the 23 rd August 2011 the Claimant s Attorney at law wrote to the Second Defendant s then Attorney at law complaining about a lack of response from the Second Defendant. Similar letters were written to this effect on the 14 th December 2011and 13 th March In the latter letters the Claimant s attorney at law attached a valuation dated 25 th May 2011 which valued the disputed property at $1.5 million and it stated that the Claimant rejected the Second Defendant s offer to purchase her share for $300, By letter dated the 9 th September 2013, the Claimant s Attorney at Law indicated to the Second Defendant s then Attorney at law that there was no response from him; the valuation needed to be updated and that she still intended to sell her share for one third of the market value based on an updated valuation. Page 7 of 15

8 23. The Second Defendant s Attorney at law responded on the 16 th September 2013 indicating that his client wanted to resolve the matter and requested a proposed price. The Claimant s Attorney at law responded on the 19 th September 2013 indicating that she would provide a proposal upon receipt of an updated valuation. By letter dated the 26 th November 2015 the Claimant s attorney at law requested $500, but it stated that she was prepared to commission an updated valuation. The instant proceedings were commenced on the 15 th March 2016 wherein the Claimant requested $800, for her one third share in the disputed property based on an updated valuation dated the 2 nd May After the instant proceedings the Claimant s Attorney at law wrote to the Second Defendant s present attorney at law voicing her objection to him communicating directly with the Claimant wherein a copy of an agreement for sale prepared by him in June 2016 was sent to the Claimant which stated that the Second Defendant was prepared to sell her share for $500, In my opinion the Claimant was a witness of truth and her evidence was credible. The Claimant s evidence was consistent with her case that she wanted to sell her interest in the disputed property to the Second Defendant. She wanted a valuation of the disputed property and while she did not agree to a price she gave him some time to make arrangements for financing the payment. In my opinion there was no plausible explanation why the Claimant would dramatically change the position which she adopted from since April 2009 which was the shares of all the owners of the disputed property was to be determined based on the market value and accept a price which was significantly less than the sum it was valued for. 25. The Second Defendant testified that the Claimant sent a letter dated the 2 nd April 2009 to him indicating her interest in purchasing his share of the disputed property and that a valuation was necessary. He did not respond to that letter. He sent a letter to the Claimant dated the 10 th July 2009 indicating that he wanted to purchase the Claimant s share in the disputed property and he agreed to a valuation. However, it was not done and the correspondence continued back and forth by . Page 8 of 15

9 26. The Second Defendant said he offered to pay the Claimant $300, for her share by letter dated the 27 th January 2012 which was rejected on the 13 th March To date four valuations were done for the disputed property which were given to the Claimant s attorneys. 27. He met with the Claimant on the 28 th April 2016 about purchasing her share in the disputed property. The meeting was arranged by Mr Michael Cabellero, a close friend of the family and Mr Cabellero and a friend were also present. At the meeting, the Claimant agreed to sell her share of the property for $500, and she agreed to sign a document stating so. It was also agreed that she would sign the document the following day and that Mr Cabellero would collect it from her. The next day around 5:00pm, Mr Cabellero gave the Second Defendant a document stating that the Claimant was selling her share of the property to the Second Defendant for $500, The Second Defendant s attorney wrote to the Claimant on the 12 th January 2017 asking whether she would honour her obligation and sell the disputed property for the agreed $500, However, there was no response to this letter. Meanwhile, the First Defendant agreed to sell the Second Defendant her share in the disputed property for $400, In cross examination the Second Defendant said he made several offers to the Claimant one of which was $300, but she refused it. He said that a valuation was done and updated after which he offered the Claimant $400, In my opinion this was not plausible since the Second Defendant knew since 2011 that the disputed property was valued at $1.5 million and the Claimant wanted $500, for her one third share. 30. In relation to the meeting where the offer for $500, was made, the Second Defendant testified that he never orchestrated that meeting and he denied sending anyone to have that meeting with the Claimant. He said Mr Cabellero, a friend of the family and his insurance agent came to him on the 27 th April at 5:00 p.m. He said he never agreed to approach the Claimant. He said Mr Cabellero went to the Claimant an hour after leaving him. He denied going behind the Court s back and initiating the Agreement with the Claimant since the matter was in court. Again this aspect of the Second Defendant s evidence was not credible. In my opinion it was Page 9 of 15

10 only in the Second Defendant s interest to orchestrate the meeting in April 2016 since he was the one who stood to benefit. He knew that the instant proceedings had started, he knew that the 2011 valuation had valued the disputed property where he was living on at $1.5 million and that an updated valuation had placed the value at $2.4 million. According to the Second Defendant s evidence he was living on the disputed property after the death of the deceased. He knew that the Claimant wanted $500, in 2011 for her share in the disputed property and it was in his interest to purchase the Claimant s share for a lesser sum. 31. The Second Defendant did not call Mr Caballero to corroborate his evidence and in such circumstances the Court is entitled to draw the adverse inference that Mr Caballero was not called as a witness since it is highly likely that he would not have corroborated the Second Defendant s evidence. 32. It was put to the Second Defendant that the letter dated the 29 th April 2016 was not drafted by the Claimant instead it was given to her to sign, the Second Defendant maintained: She gave it to me. I would not know if she drafted it. I have never drafted any letter. It was given to me by my sister Candice. He also testified that he never paid anything to the Claimant because he never had an agreement. In my opinion this evidence was not consistent with his evidence since he stated that at the meeting on the 28 th April 2016 the Claimant agreed to sell her share in the disputed property for $500, and on the next day Mr Cabellero gave the Claimant a document containing such terms. 33. In any event the Second Defendant was aware that the instant matter is before the court and that the Claimant has legal representation. In my opinion the Second Defendant failed to act appropriately and in good faith by communicating with the Claimant directly and in this regard it is my opinion that he took such action to hoodwink the Claimant into accepting the sum of $500, and then by saying it was not him but it was Mr Cabellero who organized the document which was given to the Claimant to sign and which under cross-examination he swore he knew nothing Page 10 of 15

11 34. In my opinion the Second Defendant was not entirely truthful with the Court. The Second Defendant knew since April 2009 the Claimant wanted to resolve this matter but he did little in the attempted negotiations. He knew she had requested $500, since a valuation prepared in 2011 from GA Farrell & Associates stated that the market value was $1.5 million dollars. He was also aware since November 2015 that the Claimant was prepared at her own expense to commission an updated valuation after which if there was an increase in the market value she was prepared to negotiate the value of her third share. If the Second Defendant s evidence was credible and he had acted in good faith he would have paid the Claimant the sum of $500, since according to him the Agreement was valid. In my opinion the reasons the Second Defendant did not pay the Claimant anything based on the First Agreement was because he knew that the Claimant did not agree to sell her share for $500, and he knew that the manner in which the Claimant signed the document was suspicious. 35. In light of the lack of consistency, lack of credibility and lack of plausibility of the Second Defendant s I have concluded that there was no agreement between the Claimant and the Second Defendant whereby she agreed to sell her one third interest in the disputed property to the Second Defendant for $500, Having concluded that the Agreement was not valid, it follows that there was no breach by the Claimant. Has the Second Defendant acquired an additional interest in the disputed property and if so what is the additional interest? 36. It was argued on behalf of the Second Defendant that apart from his one-third interest in the disputed property, he has an additional equitable interest since he spent the sum of $116, on the disputed property because the Deceased promised him that it would be his. He also argued that the Claimant was aware of the money he spent on the disputed property and she did not raise any objection to this. As such he relied on the doctrine of proprietary estoppel. 37. The Claimant submitted that there is no proper basis for the Second Defendant s claim for an additional equitable interest based on proprietary estoppel since there was no evidence apart from the Second Named Defendant's statement that the deceased promised to give him the Page 11 of 15

12 disputed property and that he told the Second Defendant that if he spent money on the disputed property it would be his. 38. The equitable doctrine of proprietary estoppel which was re-stated by Rajkumar J (as he then was) in Fulchan v Fulchan 1 as: If A under an expectation created or encouraged by B that A shall have a certain interest in land thereafter, on the faith of such expectation and with the knowledge of B and without objection from him, acts to his detriment in connection with such land, a court of Equity will compel B to give effect to such expectation. Taylor Fashions Ltd v Liverpool Victoria Trustee Co. Ltd Per Oliver cited in Snell s Principles of Equity 31 st Ed. Para The Second Defendant testified that he and the deceased operated a bar on the disputed property in an old wooden building alongside the main road. In 2003, the deceased promised him the old wooden front building if he replaced it with a new building. They took a loan in the sum of $100, and mortgaged the property as security for the loan. The Second Defendant paid all the monthly mortgage instalments until the loan was paid off. Neither the Claimant nor the First Defendant lived on the disputed property since they left when they were age 15 or 16 years old. After the death of the deceased, the Second Defendant never stopped the Claimant or the First Defendant from going onto the disputed property. 40. The Second Defendant also testified that he constructed a pet shop in the front building at a cost of $68, In 2011, he constructed a roti shop at a cost of $21, and a bedroom in the residence at a cost of $6, In 2013, he built a roof at the back of the residence at a cost of $21, He stated that he informed the Claimant and First Defendant at all times of what was going on and they both said they did not object. During the construction the Claimant would visit regularly and she never complained about the construction. Instead she would ask about how it was going. 1 CV Page 12 of 15

13 42. The Second Defendant s evidence on the moneys he spent on the disputed property was not challenged in cross examination. 43. The Claimant s evidence in cross examination was that the Second Defendant has not spent a considerable amount of money on the disputed property. She agreed that he constructed a pet shop but she disagreed when asked if the Second Defendant constructed a roti shop, a bedroom and roof in the residence on the disputed property. 44. In my opinion the Second Defendant s reliance on the doctrine of proprietary estoppel to establish that he has a greater share in the disputed property is without merit since he failed to establish that the deceased promised him an interest in the disputed property greater that what he was given. I have arrived at this conclusion for the following reasons. Firstly, there was no evidence apart from his sole serving evidence that the deceased made any such promise to him. 45. Secondly, if indeed there was such a promise, the Second Defendant would have raised this issue since 2009 when the Claimant s Attorneys at law started communicating with him concerning the sale of the Claimant s one third share in the disputed property to him since according to him this promise was made in The first time the Second Defendant raised this issue was when he filed his Amended Defence in February There was no such assertion by the Second Defendant in his communications with the Claimant. 46. Thirdly, the mortgage document which was exhibited to the Second Defendant s witness statement showed that both the deceased and the Second Defendant took the loan. The Second Defendant s evidence was that he paid the loan installments but he failed to present any documents to support his assertion and more importantly no explanation was given for the failure to produce any. In the absence of such evidence it is also probable that the deceased also paid the loan installments. 47. Fourthly, even if there was such a promise, the Claimant made it clear from the letters referred to aforesaid that she objected to the Second Defendant doing any construction on the disputed property while the parties were trying to resolve the division of their respective shares. Page 13 of 15

14 Is the Claimant entitled to one third of the rent received from the disputed property? 48. With respect to the Claimant s claim for one third share of all the rents received from the disputed property after the Deed of Assent, I would make such an order for the following reasons. Firstly, the Second Defendant deliberately delayed in paying the Claimant for her one third share in the disputed property since 2009 and secondly, the Second Defendant enjoyed the benefits of the rents received from the disputed property when he knew that he was not the sole owner. Conclusion 49. The Agreement for the Claimant to sell her one third share in the disputed property to the Second Defendant for $500, is not valid. Based on the evidence the Second Defendant owns a two thirds share in the disputed property since he has acquired the First Defendant s one third interest. In those circumstances although the Claimant has asked the Court to order that the disputed property be partitioned in three equal share or in lieu of partition for it to be sold and the proceeds be distributed accordingly, the Court is mindful of the Claimant s evidence that she wants to be paid the one third market value for her share which based on the last valuation places the share at $800, I am minded to make the appropriate order based on the Claimant s evidence. Order 50. Judgment for the Claimant. 51. The Second Defendant s counterclaim is dismissed. 52. The Second Defendant is to pay the Claimant the sum of $800, which represents her one third share and interest in the disputed property. Page 14 of 15

15 53. The Second Defendant is to pay the Claimant one third share of all rent received from the disputed property from the date of the Deed of Assent until he acquires the Claimant s one third interest. 54. The Second Defendant is to pay the Claimant s costs prescribed in the sum of $94, Margaret Y Mohammed Judge Page 15 of 15