IN THE HIGH COURT OF JUSTICE. Between STELLA BONAPARTE BARTHELEMY. And MERVYN MITCHELL

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. CV Between STELLA BONAPARTE BARTHELEMY And Claimant MERVYN MITCHELL Defendant BEFORE THE HONOURABLE MR. JUSTICE PETER A. RAJKUMAR APPEARANCES: Mr. Owen Hinds instructed by Mr. Richard Thomas for the Claimant Mr. Samuel Saunders instructed by Ms. Rahim for the Defendant 1

2 TABLE OF CONTENTS PAGE BACKGROUND 3 ISSUES 3 FINDINGS AND CONCLUSION 3 Sale of Land 3 Alleged expenditure 4 THE CLAIMANT S CLAIM FOR MONIES RECEIVED 7 Price per lot 7 INTEREST 9 COSTS 10 ORDERS 12 ANALYSIS AND REASONING 13 What Were The Terms Of Agreement Between The Claimant And The Defendant? 13 The Agreement The Claimant s Version 14 The Defendant s Version 15 The Original Agreement 15 The First Purported Variation - Backfilling 17 The Second Purported Variation - Approvals 17 Evidence of Variation 20 Surveying Services 24 Backfilling 28 Drainage Works 29 Waterworks 30 Project Management Fees 33 Proof of Special Damages- The Principles Summarised 34 Whether The Defendant Fulfilled His Obligations as an Agent 36 Knowledge and Approval of Claimant 40 Finding on the Issues as Stated by the Defendant 47 FINDINGS & CONCLUSION 48 ADDENDUM 51 LAW - PROOF OF SPECIAL DAMAGES 51 2

3 JUDGMENT BACKGROUND 1. The claimant is a landowner. The defendant is an attorney at law. An arrangement was entered into between the claimant and the defendant under which the defendant offered to secure sales for certain parcels of land of the claimant. The claimant claims that the defendant has sold parcels of her land and not accounted to her for the majority of the proceeds that he received of $1,765, The defendant claims that he is in fact owed substantial sums of money totalling $1,302, for expenses he incurred in developing the land. 3. The claimant claims that the approvals and infrastructural work that the defendant claims he performed, and expended money upon: a. were already performed by her, and/or b. in any event, she never requested that the defendant undertake such works. Clearly therefore the terms of that arrangement are seriously in dispute, and require investigation and analysis. ISSUES 4. (i) What were the terms of Agreement between the Claimant and the Defendant; (ii) Whether the Defendant owes the sums claimed by the Claimant or any part thereof; (iii) Whether the Claimant owes the Defendant the Special Damages counterclaimed by the Defendant in respect of his alleged expenditure in developing the Claimant s land, or any part thereof. FINDINGS AND CONCLUSION Sale of land 5. I find that there was an agreement between the claimant and the Defendant under which he would secure sales of six lots of her land, including two that he would build houses upon. 3

4 6. I find that the sale prices of the land were as set out in agreements for sale that the claimant knowingly and willingly executed. 7. The Claimant executed agreements for sale dated April 1 st 2009 in respect of Anthony Siew for $225,000 for lot 16, and $250, in respect of Craig Farqhuar for lot The allegation that the defendant was originally to build 6 houses but varied this to 2 is of less importance than the sale price of those lots. I find that the agreed sale price of those lots was revealed by the above agreements executed by the claimant. 9. Under those agreements, in the case of Siew the sale price was $225,000. In the case of Farquhar the sale price was $250,000. I find that it is more likely than not that the price of the lots on which the defendant constructed houses was the same, $250,000 each. 10. Her evidence that she was to receive a total of $2.35 million is rejected and the evidence of the defendant is preferred in this regard. Her claim to be entitled to all the sums received by the defendant (less sums received by her in the amount of $199,300.00), in an amount of $1,765, is based on a claim for monies received in respect of lots 12 and 48 which had houses thereupon built by the defendant. It was never part of any agreement that the claimant would be entitled to the full sale prices of those lots including the price of the houses. Alleged Expenditure - Securing of final approvals and associated development works 11. I find that, based on the documentary evidence of the approvals themselves, the defendant did embark on a process of attempting to secure final approvals for the claimant s land at Phase 2. The claimant s claim to have secured final approvals for Phase 2 is not borne out by the documentary evidence, or even her own evidence under cross examination. 4

5 12. I find that the agreement under which the alleged expenditure was incurred by the defendant to develop the claimant s land was surprisingly vague, never being reduced into writing. This accounts for the divergence of views between the claimant and the defendant as to its terms. 13. I find that: a) the very specific terms which the defendant contends were included in the agreement, and b) the alleged first and second variations thereof, are not borne out by any documentary evidence whatsoever. The terms of the agreement are to be deduced instead from the documents that exist, and what the parties actually did, with the knowledge and approval / non objection, of each other. 14. Accordingly I find: a. that the defendant secured final approvals for Phase 2 and must actually have incurred some expenditure in work incidental to securing final approvals for Phase 2; and b. that the claimant was aware that the defendant was carrying out works on her land at Phase 2, incidental to securing final approvals to enable subdivision. These works by their nature must have been conducted in plain view, as they involved digging of roads to lay water main and pipes, rudimentary repairs thereafter,and placing of fire hydrants,. In addition the claimant herself lived nearby at Ablack Trace, at Phase I find that at the very least, she stood by and permitted such works on her land, as i) she herself did not then intend to spend money to further develop Phase 2; ii) she stood to benefit from the final approvals, which would have allowed her to subdivide, sell, and pass title, not just to the six lots that were the subject matter of her agreement with the defendant, but all 29 lots in that phase of her development. 16. I find on a balance of probabilities that the claimant must have appreciated, even in the absence of written agreement, that the cost of development work on her lands and the securing of final approvals for her benefit, must have been for her account, and that the reimbursement of reasonable necessary expenditure in this regard would be required from the proceeds of sale of the six lots for which the defendant was securing sales. 5

6 17. I find, on a balance of probabilities, that it was more likely than not that it was agreed, or at least accepted, that she would reimburse such reasonable expenditure on her land for her benefit, and that such expenditure was to be met from monies received from the sale of the six lots. The alternative that the defendant did so entirely of his own volition is, in the instant circumstances, far less likely on a balance of probabilities. 18. I find that although the defendant incurred some expenditure, the evidence in support of the quantum of the actual expenditure is not at all convincing. The defendant was under a duty to properly account for such expenditure as it was to be funded, and deducted, from monies due to the claimant. 19. That duty to account involved inter alia, a. Obtaining and retaining evidence that the retention of the contractors was by a transparent process, preferably after selection from competing bids. b. Evidence of actual payment for such works, including cheques and receipts for any alleged cash payments. c. Evidence that any work performed was actually done to the value claimed. 20. I find that the defendant s evidence and the evidence of his witnesses in this regard, must be rejected because of; a. the absence of sufficiently convincing documentary evidence of actual payment, b. the exaggeration and overstatement of work done in others, (for example surveying services). c.. the demonstrated falsity of some of the documentary evidence, (for example surveying services). 21. Accordingly the consequence of failing to strictly prove the quantum of any such expenditure is that the defendant s counterclaim must be dismissed. 6

7 THE CLAIMANT S CLAIM FOR MONIES RECEIVED Price Per Lot 22. I find that: (i) The amounts due to the claimant were $250, per lot for Lot 12, Lot 48, and lot 15. For Lots 13, 14 and 16 she agreed to receive the sum of $225, and executed the agreements for sale of these lots accordingly. I expressly find, having had the benefit of seeing the claimant testify forcefully, that she was a shrewd and competent businesswoman who executed all agreements with full knowledge of their contents. (ii) Lots 12 and 48 For lots 12 and 48 the claimant would be entitled to receive $500, when she is in a position to complete her obligations under the agreements for sale, and transfer title, free from encumbrances, judgements, and lis pendens, for these lots. She cannot receive the monies collected from purchasers without fulfilling her own obligations under the agreements for sale. (iii) Lot 12 With respect to this lot the sum of $250, is to be paid out to the Claimant, when she has executed a conveyance of this lot free from encumbrances. The Defendant would be entitled to any sums payable beyond the price of this lot, ($250,000.00), in accordance with my finding of his agreement with the claimant. The Defendant has collected the sum of $670, in respect of lot 12. From this, the Claimant would be entitled to the sum of $250, (iv) Lot 48 The Defendant has collected the sum of $81, in respect of lot 48. The Claimant would be entitled to payment of $250, for this lot when she completes the agreement and executes a conveyance of this Lot. Any balance in excess of $250, would be payable to the defendant. 7

8 Accordingly it is ordered and declared that any sum in excess of $250, received by the claimant or her attorneys, in respect of Lot 48 must be held on trust for the Defendant. (v) Lot 16 For lot 16 the defendant has already collected the sum of $225,000. The claimant would be entitled to receive the sum of $225,000, only when she is in a position to complete her obligations under the agreement for sale and transfer title to this lot, free from encumbrances, judgements, and lis pendens. All monies received from the purchasers of these lots are on trust for the purchasers, not the Claimant. Accordingly, it is ordered that should the Claimant not effect conveyances free from encumbrances within 3 months of the date herein, that is on or before September 27 th 2013, the claimant is to refund the sum of $199, received by her in cash or value, by paying this sum into court, to be retained in court pending completion of the sales of Lots 12, 48, 15 and 16. (vi) Lot 15 For lot 15 the claimant would be entitled to be paid the sum of $250,000 when she is in a position to complete her obligations under the agreement for sale and transfer title, free from encumbrances, judgements, and lis pendens, for this lot. The defendant has collected the sum of $60, in respect of this lot. These sums would have been subject to a deduction of any expenditure that the defendant could have established to have been incurred on behalf of the claimant. As I find hereunder however, the defendant has not proven any such expenditure. Accordingly there is to be no deduction in respect of any such alleged expenditure. (vii) The sums that are recoverable by the claimant totalling $616, are however subject to deduction of such amounts already received by the Claimant; I accept her evidence that those amounts total $199,

9 (viii) Accordingly the Defendant is to pay into court the sum of $417, out of the monies he has received as deposits for Lots 12, 15, 16, and 48. (ix) The sum of $417,200 is to be paid out to the Claimant upon application after a. conveyances in respect of Lots 12, 15, 16 and 48 have been executed, and b. all sums received for Lot 12 in excess of $250, and all sums received for Lot 48 in excess of $250, have been received by the Defendant. 10. It is anticipated that, as indicated by the Claimant, the agreements for sale in respect of Boodoo and Bharat are not being proceeded with, and that their deposits are to be returned. The orders in respect of lots 13 and 14 are made on this basis, and the return of their deposits is accordingly provided for. 11. Lots 13 and 14 The sum of $67,500 received by the Defendant in respect of Lots 13 and 14 is to be paid into court by the Defendant, pending determination or agreement as regards the issue of whether those purchasers of Lots 13 and 14 are entitled to a refund, or alternatively, the claimant elects to proceed with the sale. INTEREST 23. I make no award of interest on this sum of $417, because: - i. The failure to receive more than this sum was the result of the claimant failing to take steps to remove the lis pendens or satisfy the two judgments against her, for a. $54, (with the lis pendens being filed in respect of the same action) and b. $5, ii. I am satisfied that the claimant has received substantial benefit from some level of expenditure by the defendant for which he cannot be reimbursed due to his failure to substantiate it. 9

10 iii. The claimant is also the beneficiary of final approvals for the entirety of Phase 2, which permitted, for the first time, lawful subdivision. Twenty nine (29) lots, even at a sale price of $250,000.00, would realize in excess of $7 million. Any award of interest on the sums due to the claimant would, in those circumstances, be punitive. COSTS 24. Further, the claimant has not established that any sum is yet due to her, as she has not placed herself in a position to transfer title and execute deeds of conveyance to any of the purchasers of the 6 lots of her land in Phase Any sums collected by those purchasers are to be held on trust for them pending the completion of sales to them by transferring title to them, free from encumbrances, by deeds of conveyance/memoranda of transfer. 26. No costs are awarded on the claimant s claim as she has not established her entitlement to any sums collected at this stage. (In any event her claim to be entitled to $1,765, as set out in her Reply -has not been established. She would have been entitled ultimately to the sum of $1,000, (one million) less the sum/value already received by her of $199,300.00, had all sales of the 4 lots- 12, 48, 15, and 16- been completed. She has refused to proceed with sales of lots 13 and 14 to Boodoo and Bharath, and their deposits are therefore not to be retained by either her or the claimant. ) 27. Of the sums collected on her behalf $417, would have been payable to the claimant after completion of the sales of the Lot 12, 48, 15, and Even if the sales had been concluded, her claim could only have succeeded with respect to this amount of $417,200.00, and not $1,765, ) 10

11 29. In any event she succeeds on the counterclaim. The costs of trial of the counterclaim necessarily included the costs of assessing the merits of the claim as they were two sides of the same scenario. In her successful defence of the counterclaim I am satisfied that the claimant would thereby be adequately compensated for her costs in respect of both the claim and the counterclaim. Counterclaim 30. The defendant has failed to prove his counterclaim. The defendant s counterclaim is dismissed. The claimant is entitled to costs of the counterclaim on the basis prescribed by the Civil Proceedings Rules, for a claim in the amount of $1,302, Liberty to apply 31. (It is anticipated that there may arise a need to work out aspects of this order. The principle behind the decision is as followsa. the Claimant is to receive in total the sum of no more than $250,000 for each lot that she passes title to by executing a conveyance/ memorandum of transfer, save for those for which she has specifically agreed to accept $225, (Sales to Siew, Boodoo and Bharath) b. The Claimant has received $199, in cash or value. c. In respect of lot 48 the defendant has received the sum of $81, In respect of lot 12 the defendant has received the sale price of the land of $250,000.00, (included in the sum that he has received for the house and land sold). (1) In respect of lot 16 - the defendant has received the sum of $225,000. (2) In respect of Lot 15 - the defendant has received the sum of $60, The Defendant is to pay into Court the total of these sums less $199,300.00, that is -$417, d. In respect of Lots 13 and 14 the sum of $67, is to be paid into court by the defendant, pending determination or agreement on the issue of whether those purchasers are entitled to a refund. e. The Defendant is entitled to retain, and/or be paid, any sums in excess of $250,000 received in respect of Lot 12 and Lot

12 f. The Claimant is to fulfil her obligation to pass title to each lot before she is entitled to retain any money received from any purchaser thereof. I am satisfied from the evidence in this matter that the supervision of the court as set out above is required to ensure that, apart from the claimant receiving what she is actually entitled to, the purchasers, from whom the monies have come, obtain what they bargained for. ORDERS 32. (1) In respect of sums collected for Lots 12, 48, 15 and 16, the Defendant is to pay $417, into Court. (2) The sum of $417, is to be paid out to the Claimant upon application after a. conveyances / memoranda of transfer in respect of Lots 12, 15, 16 and 48 have been executed and b. all sums in excess of $250,000.00,received for Lot 12 and $250,000.00, received for Lot 48, are paid to, or received by, the Defendant. (3) In respect of Lots 13 and 14 the Defendant is to pay into Court the further sum of $67, to be held, pending determination or agreement on the issue of whether those purchasers are entitled to a refund. (4) It is ordered and declared that any sum in excess of $250, received by the claimant or her attorneys, in respect of Lot 48 must be held on trust for the Defendant, and paid to him, once the Defendant has complied with his obligations under this order. (5) It is ordered that should the Claimant not effect conveyances/ memoranda of transfer in respect of Lots 12, 48, 15 and 16, free from encumbrances, within 3 months of the date hereof, the claimant is to refund the sum of $199, (already received by her in cash or value), by paying this sum into court, to be retained in court pending completion of the sales of Lots 12, 48, 15 and 16. (6) The defendant s counterclaim is dismissed. (7) The claimant is entitled to costs of the counterclaim on the basis prescribed by the Civil Proceedings Rules, for a claim in the amount of $1,302,

13 (8) Liberty to apply ANALYSIS AND REASONING What Were The Terms Of Agreement Between The Claimant And The Defendant? 33. The Claimant is the owner of a parcel of land situate at Ablack Trace Beucarro Road, St. Mary s Village, Carapichaima (the main parcel). She divided the main parcel of land into 2 Phases -Phase 1, and Phase The Claimant pursued and obtained the necessary approvals for the development of Phase 1. The Claimant wished to sell individual Lots in Phase 2. She had not obtained final approval for Phase 2. The approvals for Phase 2 are:- (i) WASA-Water Reticulation and Waste Water Collection System for entire development Final Approval granted 28 lots September 2nd 2010 (ii) MINISTRY OF WORKS- final approval for drainage re Phase 2 ( lots 1-17, and 45 to 58 ) October 29 th 2009 (iii) Drainage plans for the entire development submitted and outline approval granted October 5 th 1999 (iv) LOCAL HEALTH AUTHORITY- Application for approval made and received for Phase 2- lots 1-16, October 4 th 2010 (lot 17 to be open space) (Note - the claimant herself exhibited this document with the final approval stamp). (v) Regional corporation - Application to sub-divide and grant of approval to sub-divide entire development September plots plus one open space (vi) Fire services approval - January 25 th The Claimant s claims that sometime late in 2007, while the Defendant s office for the purposes of execution of an Agreement to sell a plot of land, the Defendant offered to buy and she agreed to sell him 2 Lots of her land in Phase 2. Those were Lot 12 and Lot 48. She knew that the Defendant intended to construct two (2) houses. She also knew that she did not intend to carry out any more infrastructural works on Phase 2 at that time. 13

14 36. The Claimant made it clear to the Defendant that there was still work to be done in the Phase 2 of the development, and that she was not proceeding with further development until she obtained more money. She also made clear that if he wanted to construct any houses that was entirely up to him. The Agreement The Claimant s Version 37. In early 2008 the Defendant offered to sell on the Claimant s behalf a further 4 Lots in Phase 2. There were Lot 13 which she claimed measured m2; Lot 14 which she claimed measured m 2 ; Lot 15 which she claimed measured m2; and Lot 16 which she claimed measured m2.the Claimant agreed that the Defendant could sell those lots on her behalf. 38. The Claimant allegedly stipulated that the amount of money to be remitted to her by the Defendant was Four Hundred Thousand Dollars ($400,000.00) for each of the following Lots, -lot 12, lot 13, lot 14, lot 15 and lot 16 and ($350,000.00) for Lot The Claimant claims that she was fully aware of the constraints she faced with respect to Phase 2 of her development and did not in any way expressly and/or impliedly represent to the Defendant that she had all necessary approved plans in place or would release these to him. On her version the claimant could not have had approvals to subdivide the land in Phase 2. She admits that she was selling these lots without approvals in place for subdivision. 40. The Claimant claims that Agreement was simply to sell six (6) Lots of her land and remit to her nothing less than Four Hundred Thousand Dollars ($400,000.00) per Lot for Lots 12, 13, 14, 15, 16 and Three Hundred and Fifty Thousand Dollars ($350,000.00) for Lot No. 48. On the claimant s version she was to receive a total of $2,350,

15 41. In her statement of case however the claimant claims the total of all the monies received by the defendant, which includes sums received, in excess of the land price, for one of the two houses that the defendant constructed. The Defendant s Version of the Agreement 43. The Defendant accepts that that the Agreement was for the sale of 6 Lots of the Claimant s land. However he contends that it also included additional terms as follows: The Original Agreement 44. The Defendant claims the following were terms of the oral agreement with the Claimant. In or about the month of January, 2008, the Claimant and the Defendant orally agreed as follows:- (i) The Claimant would give the Defendant possession of six lots of land owned by her at Ablack Trace, Beaucarro Road, St. Mary s, namely lots Nos. 12 to 16 and lot 48. (The evidence is that the defendant did build two houses and to do so he must have had possession. Even on her own version the claimant acknowledges that she knew that he had intended to build two houses.) I find that the defendant was given possession of at least 2 lots, and authorised to sell 6 lots. (ii) The Defendant would at his expense, clear the lots preparatory to building the houses hereinafter mentioned. (iii) The Defendant would at his expense build a house on each of the above lots of land. (In fact he built two houses) (iv) Upon completion of each of the houses, the Defendant would sell the lots of land inclusive of the houses and pay to the Claimant out of the proceeds of sale the sum of $200, for each lot of land -that is, a total of $1.2 million. (The sale price of each lot is therefore an issue of disputed fact.) (v) The Claimant would at the request of the Defendant, sign and execute all documents necessary to effect the sale of the respective lots of land, inclusive of the houses. 15

16 (In fact she did sign and execute agreements for sale and in one case, a memorandum of transfer in escrow). (vi) The Claimant would deliver to the Defendant all the approvals obtained by her in respect of the lots of land. (In fact she did not have final approvals, but the claimant contends that she made no secret of this). (vii) The Claimant would at her expense obtain a water supply for each of the lots of land. 45. On this version of the agreement the claimant would have received $1,200, and she would have received this sum after the defendant had built and sold six houses. 46. Specifically it was contended by the defendant that the following were express terms of the original agreement:- (i) That all final approvals for the lots of land had been obtained by the Claimant from (a) The Couva/Tabaquite/Talparo Regional Corporation, (b) WASA, (c) The Trinidad and Tobago Fire Service and (d) The Ministry of Works and Transport. (MOWT) (ii) The lots were properly developed and were ready for the construction of houses without the need for backfilling. (iii) The roads and drains were properly constructed and were approved by the Ministry of Works and Transport. (iv) The water supply and mains were approved by WASA. (v) There were sufficient fire hydrants installed to the satisfaction of the Trinidad and Tobago Fire Service. 47. In fact however, the veracity of these representations was easily ascertainable by the defendant - in respect of (i), (iii), (iv) and (v) - by demanding sight of the approvals and in respect of ii and iii, by visual inspection. 16

17 48. The defendant would have the court accept that he discovered these matters in February 2008, one month later. In fact he could not have embarked upon construction without having sight of the land, and without ascertaining any need for backfilling. Any assertion to the contrary is inherently illogical and not credible. The excuse that the land was covered in vegetation ( high bush ) is not acceptable. The First Purported Variation Backfilling 49. The Defendant allegedly a. discovered the land on which the houses were to be constructed was in fact waterlogged and low lying. (Paragraph 4 of the Defendant s witness statement); The Defendant further contends that, (because the Claimant represented that the land was in a ready state to construct houses but it was found to be water logged), the Agreement was varied in or about the month of February, 2008 to include a further term/agreement between the parties that the Defendant would backfill the land, and any expense incurred would be deducted from monies due to the Claimant from the sale of the land. The Defendant then expended the sum of approximately $100, to prepare the land. 50. This was also entirely verbal. It is hardly credible that the alleged state of the land would not have been ascertained by the defendant before he decided to acquire it to construct houses. I therefore do not accept this alleged variation. The Second Purported Variation- Approvals 51. The Defendant contends that during the construction of the two (2) houses he made numerous requests that the Claimant produce the approvals, but none was forthcoming. He later found out that the Claimant in fact had none. The Variations 52. The first of these purported variations is alleged to have taken place in January The second variation is alleged to have taken place in or around July The Defendant allegedly a. discovered access roads, drains then in existence were not properly constructed nor were they approved by the Ministry of Works and 17

18 Transport in point of fact there was no water supply and the water mains were not approved by WASA (According to paragraph 5 of the said Witness Statement). 54. The Defendant still continued on numerous occasions during the construction of these two houses to request that the Claimant provide as per our agreement the requisite water supply to the said houses. 55. This agreement is not in writing. The concept that the defendant seeks to convey by his defence is that of a simple agreement to develop land on behalf of the claimant which led down a slippery slope of expensive complications as a result of unforeseen matters, including (i) Water supply (ii) Water logging/drainage (iii) Road access. 56. These matters all impacted his ability to (a) Construct houses on the land (b) Obtain approvals for subdivision of Phase But on examination it is clear that these purportedly unforeseeable matters were quite foreseeable. If the land were low-lying and waterlogged, physical inspection and enquiries from adjoining occupiers could be expected to reveal this. If the land had no water supply this would have been obvious. 58. If the claimant had failed to ensure a water supply in breach of agreement and the defendant had to provide it at his own expense, one would expect such a significant variation and expense to be agreed in writing. If not, the defendant could have elected not to proceed further. In that scenario, to commit substantial resources without the protection of a written agreement would be suspicious. 59. If approvals for roadways or drainage did not exist it would not have been difficult to determine that, by requiring their production from the claimant before 18

19 embarking or continuing further upon what allegedly turned out to be an expensive development. 60. An inherent credibility gap is revealed in the Defendant s evidence which must therefore be considered. 61. As a result the Agreement was allegedly varied a second time to include:- (i) Agreement that the Defendant would obtain all the Final Approvals in respect of Lots Nos and (ii) Agreement to undertake all remedial works on existing drains and roads and construct new drains and roads where necessary in order to obtain final approvals from Ministry of Works and Transport. (iii) Agreement that the Defendant would install 2 flush out valves, an air valve, a lock off valve, twenty-six (26) individual Lot connections with lock off valves, two (2) concrete cylinders with covers, lay a new 4 water main and pressure test all of the above to the satisfaction of WASA and thereafter obtain Final Approval for same. (iv) Agreement that the Defendant would install 2 fire hydrants, prepare a plan for Fire Services and obtain Final Approval. (v) Agreement that the Defendant would retain a Surveyor to undertake the following:- (a) Re-define the perimeter boundaries for the whole development as well as for Lots 1 to 17 and 45 to 57 and draw the requisite plans in duplicate for approval by Town and Country Planning Division. (b) Draw a Water Reticulation Plan to the satisfaction of WASA and Trinidad and Tobago Fire Services. (c) Draw and submit an amended General Plan for the whole development (d) Survey the open space to sub-divide part of it into five (5) additional Lots of land and to obtain Town and Country Planning subdivision approval in respect of same and draw the approved plans in duplicate. (vi) (Significantly), agreement that the expenditure incurred by the Defendant in undertaking the above would be for the account of the Claimant and would be 19

20 (vii) (viii) (ix) deducted from the sale price of the said Lots of land, inclusive of the houses, which would become due to the Claimant after their sale by the Defendant. Agreement that the Defendant would use monies derived from sale of the said Lots inclusive of deposits made to help finance the above works. Agreement that the Defendant would build no more houses and instead the Defendant would sell the remaining four (4) Lots of land for Two Hundred and Twenty-Five Thousand Dollars ($225,000.00) each. Agreement that the Claimant would pay the Defendant the sum of Five Thousand Dollars ($5,000.00) per month in respect of fees for the period of time it would take to obtain all final approvals. Evidence of Variations 62. The Claimant denies any knowledge of the above variations.they were never reduced to writing. The absence of final approvals was ascertainable by the defendant before he committed to construction upon the land or canvassed sales of the other lots. 63. This alleged state of affairs, (discovery of absence of final approvals), allegedly resulted in a drastic overhaul of the initial agreement. It transformed the agreement from one where the claimant received cash, without any outlay on her part, to one where she could conceivably receive nothing from the sale of the six lots, (save for the enhanced saleability of the other 23 lots). 64. It is obvious that the purported variations were major. They fundamentally changed the Agreement, from one when the claimant was to at least receive a fixed and agreed sum, after sale of the lots, to one where she undertook liability in developing land, the expenses of which were to be deducted from her proceeds of sale. 65. If those expenses were sufficiently high she could actually receive nothing, despite selling 6 lots of land. However she would be able to sell the remaining lots in Phase 2, as she would now have the benefit of approvals to enable her to sub divide and transfer title. 20

21 66. No opportunity was provided, even on the defendant s own version of events, for the Claimant to obtain independent legal and financial advice, despite the substantial obligations and expenditure she was allegedly incurring. 67. Further, the Defendant was unable to support this, or any, version or variation, by any written and/or executed Agreement(s) between the parties, or any correspondence evidencing the purported variations. 68. The Defendant is an attorney at law of over twenty (20) years call. He exhibited no signed Agreement to this effect. 69. I find that there was no signed agreement incorporating those terms. If such terms existed or were incorporated they would have had to be oral, the subject of verbal agreement. In determining whether any of those alleged terms, in either of the two versions of the oral agreement between claimant and defendant existed, a. the documentary evidence as well as b. the actions of the parties, are therefore critical in ascertaining what they actually agreed to. 70. Under this arrangement the claimant would allegedly receive $1.3 million ($225,000 for 4 lots of land, $200,000 for 2 lots), less the sums expended in the process of developing the lands and obtaining final approvals, (including a management fee of $5,000 per month, indefinitely, until final approvals were all obtained). 71. Immediately it becomes obvious that the sum available for the development works must be capped at $1.3 million, the total sum due to the claimant for the sale of her 6 lots of land. 72. In those circumstances one would expect, if this arrangement in fact reflected the terms of their agreement, that the defendant would keep a close eye on the accrual of any such expenditure, and would keep the claimant informed. 21

22 73. A reasonable expectation would be that accounts would be kept of such expenditures with bills, receipts, cheques, and bank statements from a specially designated account. 74. It would not be unreasonable to expect that the defendant, an attorney at law, would protect himself from misunderstandings, by recording this agreement in writing. Performance by the defendant Drains, roads and water supply 75. Pursuant to the purported agreement as varied the Defendant claims that he performed significant works and obtained final approvals as follows:-: (i) Constructed 930 feet of box drains, 175 feet of slipper drains and 1,138 feet of roads to the satisfaction of the Ministry of Works and Transport upon the completion of which he obtained the final approval of the Ministry of Works and Transport, dated the 29 th day of October, The drainage works allegedly cost $378, The road works allegedly cost $239, These are substantial sums and need to be strictly proved as they are claimed as special damages. (ii) Laid 932 feet of 4 high pressure PVC water main, installed 2 flush out valves, an air valve, a lock off valve, 2 concrete cylinders with covers as well as 26 individual lot connections with lock off and pressure tested the same to the satisfaction of WASA as a consequence of which he obtained final approval from WASA. The installation of the water supply system allegedly cost $175, and this must also be strictly proved. (iii) Installed 2 fire hydrants to the satisfaction of the Trinidad and Tobago Fire Service as a consequence of which he obtained the final approval. (iv) Obtained final approval from the Couva/Tabaquite/Talparo Regional Corporation 22

23 From their dates it is clear that the defendant was instrumental in obtaining these final approvals, and I so find. The validity of the claims for these expenditures is considered further below. The Sale of Lots 76. The defendant (i) Obtained purchasers for the remaining 4 lots of lands. It should be noted that: a. the Claimant executed agreements for sale on April 1 st 2009 to Anthony Siew for lot 16 in the sum of $225,000, b. to Craig Farqhuar for lot 15 in the sum of $250,000.00, c. Agreements in respect of Boodoo and Bharath were also executed under which the sum of $67,500 was collected. In the circumstances where the Claimant has declined to complete those agreements for sale, all monies collected by the defendant in respect of those parties, Boodoo and Bharath, must be paid into court. (ii). Sold 2 houses a. to Nicole Manswell ($700, for lot 12 - in respect of whom the Claimant executed in escrow the Memorandum of Transfer dated 2010) and, b. to Jameel Spring and Rekitter Blackman Spring in respect of whom the Claimant executed the agreement for sale for lot 48 December 1 st 2010 for $815, It is clear therefore from the documentary evidence that the Defendant did obtain these purchasers, and the claimant was fully aware of this, and signified her approval and consent by executing the agreements. Whether the Claimant owes the Defendant the amounts claimed as Special Damages 78. The Defendant claims against the Claimant Special Damages amounting to One Million, Three Hundred and Two Thousand, Six Hundred and Twenty-Two Dollars and Fifty Cents ($1,302,622.50). This sum, he contends, comprises the following:- (i) Back filling $97,

24 (ii) Drainage Works $378, (iii) Road Works $239, (iv) Water Supply $175, (v) Surveying Fees $47, (vi) Professional Services $206, (vii) Bailiff Services $30, (viii) Paid on account of motor car (not disputed) $68, (ix) Paid on account of Claimant s judgement $44, (x) Paid on account of Land & Building Taxes $1, (xi) Management Fees from August, 2008 to September 2010 $120, TOTAL $1,302, Of these sums the claimant accepts that she did in fact receive the value or the sum of $199, The Defendant admitted that he had never provided such a document to the Claimant before 23 rd March, He claims in fact she now owes him more than he has received. Surveying services Licensed Surveyor 82. The Defendant s case on the second variation (paragraphs 10 (vii) of his Witness Statement page 7) is that he retained a licensed surveyor at a total cost of $47, to undertake the works set out below:- 83. The Surveyor allegedly a. re-defined the boundaries of the whole development as well as the boundaries of Lot No. 1 to Lot No. 17 and Lot No. 45 to Lot No. 57, b. submitted the said plans for approval from the Town and Country Planning Division and after obtaining the approval, 24

25 c. drew the General Plans and the individual lot plans, all approved by the Director of Surveys and delivered the same to the Defendant. d. drew a water reticulation plan which both WASA and the Trinidad and Tobago Fire Services approved. e. surveyed the open space and f. excised 5 lots known as Lot No. 17A, Lot No. 17B, Lot No. 17C, Lot No. 17D and Lot No. 17E from the same, g. allegedly submitted the plans and obtained the relevant approvals from the Town and Country Planning Division and the Director of Surveys in respect of those lots. 84. The Defendant at page 7 paragraph (vii) of his Witness Statement said (in part) that the Surveyor redefined the boundaries of the whole development as well as the boundaries of Lot No. 1 to Lot 17 and Lot No. 45 to Lot No. 57 submitted the said plans for approval to Town and Country Planning and after obtaining the approval, drew the General plans and the individual Lot plans, all approved by the Director of Surveys,and delivered same to the Defendant. The Surveyor drew a water reticulation plan which both WASA and Trinidad and Tobago Fire Services approved. The Surveyor also surveyed the open space and excised 5 Lots known as Lot No. 17A, Lot No. 17B, Lot No. 17C, Lot No. 17D and Lot No. 17E, submitted the plans and obtained the relevant approvals from Town and Country Planning Division and the Director of Surveys in respect of the same, after which he gave the original plans in duplicate for all the above Lots to me (emphasis added). 85. The Defendant clearly testified that the Surveyor..obtained the approval.from Town and Country Planning Division in respect of the five lots sought to be excised from the open space. 86. The Defendant s witness Mr. Darrent Jones, Survey Technician in his witness statement stated that he first visited the site in January, 2008, 6 months before July, 25

26 2008 when the 2 nd variation allegedly took place. Mr. Jones, whilst claiming to have done work, including drawings, measurements and notes, did not exhibit any of these, or in fact anything other than an invoice dated March 15 th Under cross examination as to whether this witness obtained the necessary Town and Country approvals for item (h) at paragraph 3 of his Witness Statement (subdivision of the open space into additional 5 lots), the witness confirmed that he never completed the survey and subdivision of the open space (and therefore could not have obtained the subdivision approvals for 5 lots from that parcel). 88. Under cross examination this witness confirmed, in response to whether he surveyed the open space, that he did not survey the open space and that he drew a sketch and went to Town and Country Planning to negotiate but it was refused and that the negotiations went no further 89. It is clear that what the Defendant contends was done by a licensed surveyor retained by him [in his witness statement] is quite different from what, under cross examination, his witness, the survey Technician, Darrent Jones said he actually did. 90. The Defendant stated that he Retained a licensed Surveyor at a total cost of $47, to undertake the matters referred to in paragraph 10 (v) hereof. The licensed Surveyor was one Hugo Somarsingh & Associates who issued an invoice for $47, Under cross examination Mr. Jones testified- Payment was by cash and cheque over a period of time and that it was paid to him, not Hugo Somarsingh. This was confirmed when the court further enquired as to who was paid. He replied the $47, was paid to me 92. In further response to the court s enquiry of this witness whether paragraph 8 of his witness statement was true - (payment made to Hugo Somarsingh and Associates) - this witness replied that Hugo Somarsingh was not paid. 26

27 93. This is clear confirmation that in this instance the documentary evidence of payment does not reflect the actual transaction. a. The evidence is clear that it was not a Surveyor who was retained but rather a Survey Technician, Darrent Jones. 94. Under cross examination Mr. Jones said that his first payment was received early in 2009 and his last payment at the end of The invoice tendered is dated 15 th March, The 2011 dates on invoices tendered in this matter by the defendant, despite the oral testimony of the payees that they were paid for their services long before these dates, suggests that these invoices were generated after the fact, and for the purpose of being evidence in this matter. 96. Their dates cannot be regarded as an accurate reflection of when the alleged services were performed. 97. Their amounts are not corroborated by any evidence of actual payment. This is incredibly suspicious. The defendant, incurring expenditure allegedly for the eventual account of the claimant, would be expected to keep verifiable records of any such expenditure. 98. I find inter alia;- a. that this surveying work was exaggerated, b. that a licensed surveyor was not retained, c. that items of work claimed for in respect of subdivision of the open space were not performed, and he did not obtain approval to subdivide the open space into 5 lots. He only submitted a sketch, not a survey. d. Hugo Somarsingh did not receive any payment under the invoice tendered to the court, nor did he provide any services, though Jones may have provided some of these, apparently in a private capacity. 27

28 99. The discrepancy between the evidence of the claimant, and the evidence of Jones as to what was actually done, together with the fact that the invoice, only generated long after any services were performed, does not reflect the actual transaction, leads me to find that this claim has not been proved. It is accordingly rejected. Backfilling 100. In respect of the purported variation the Defendant claimed an expenditure of Ninety-Seven Thousand Dollars ($97,000.00) for backfilling by Ameer Razack of Razack s General Construction Limited (RGCL). The Defendant exhibited no documentary evidence, save for an invoice dated November 2nd This was produced when requested more than a year later, after the delivery of the services. Although he was allegedly paid partly by cash and partly by cheque, no receipt, nor cheque, nor bank statement was produced It must be borne in mind that the defendant was also under a duty to account to the claimant and to keep proper accounts of the expenditure that would be deducted from monies collected from sale of the lots. The single invoice dated November 2009, for substantial alleged work requested since January 2008, for which some cheque payments were allegedly made, cannot constitute sufficient proof of this item of claimed special damage. Given the lack of documentary evidence by the Defendant - no receipt, no cheques, no contemporaneous invoice, no bank statement, - I find that there is no adequate evidence of this alleged expenditure Further and in any event, any such backfilling does not establish the defendant s case of a variation agreed upon with the claimant I find that there is no credible evidence that any such variation, regarding cost of backfilling being reimbursed or deducted, was agreed upon with the claimant Further any such expense has not been supported sufficiently to be considered proven as special damages. Any purported cost of back filling is therefore disallowed. 28

29 Drainage Works 105. The Defendant at paragraph 10 (i) of his Witness Statement stated that he constructed 930 feet of box drains, 175 feet of slipper drains and 1,138 feet of roads to the satisfaction of the Ministry of Works and Transport upon completion of which I obtained the final approval of the Ministry of Works and Transport dated 29 th day of October, The drainage works cost $378, In support the Defendant called Mark Santana who allegedly performed these works This witness stated that on his arrival on the site there were no roads and there were some failed drains, and further that he did complete drainage system for 1913 feet and 374 feet of two sizes of box drain, completed in January The following activities were performed by this witness: (i) August his services were solicited by the Defendant- (Para. 3 of Witness Statement); (ii) August commenced work- (Para. 6 of Witness Statement); (iii) August Received 1 st payment. Cross Examination; (iv) January 2009 completed works- Para. 6 of Witness Statement; (v) Never returned to site after works were completed in January Cross Examination; (vi) February Received last payment from defendant - Cross Examination; (vii) 10 th November Date of Invoice to Defendant for Water works - Para 10 Witness Statement; 109. Even if the Defendant did drainage works on the land there is still no evidence that it was with the claimant s consent and approval. Even if done it is not evidence of any purported variation. Curiously his invoice is dated 2 years later. I do not accept it. It is clearly generated on demand for the purpose of this litigation as there is no supporting evidence of actual payment, such as cheques, receipts, company statements of account, or 29

30 bank statements. The absence of these is highly suspicious. In fact this witness claims that he was paid 95% in cash, sums of approximately $20, weekly. If true, this is all the more reason for the defendant to have demanded receipts. Water Works 110. This witness stated under cross examination that he received his last payment from the Defendant in February The date of Invoice to Defendant for $175, for Water and Drainage works is also 10 th November He claimed to have been paid in total five Hundred and Forty-Nine Thousand, Five Hundred and Thirty-Seven Dollars and Twenty-One Cents ($549,537.21), with the only documentary evidence provided being the 2 invoices, each dated 10 th November Again therefore there is no documentary evidence of payment of this, or any other sum. There is no evidence that works, even if done, were for the value claimed. Even if done, such works cannot be evidence of a purported variation of any oral Agreement Alleged remedial works to the drains and roads and construction of new drains and roads where necessary 114. Ameer Razack under cross examination admitted that his services were solicited in January 2008 by the Defendant. This witness further admitted that with respect to the works to be undertaken no approved plans were shown.but took it he was going to do. He admitted later the work was done with no approved plan and that he does not know if work was done according to specifications as a result. He also stated under cross examination that the above works started in January 2008 and finished in This witness said his services were solicited in January, (before the alleged variation). The evidence of the Defendant in his witness statement (at paragraph 10) is that the 2 nd variation took effect in July,