IN THE HIGH COURT OF JUSTICE AND

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV BETWEEN WAYDE MELVILLE Claimant AND KATHRYN DUKE Defendant Before the Honourable Mr. Justice R. Rahim Appearances: Ms. S. Holdip for the Claimant. Mr. S. Salandy for the Defendant.

2 Judgment 1. This claim is one for recovery of possession of property located at 22 Frank Hart Street, Arima (hereinafter referred to as the disputed property ). The judgment of the court shall be as follows: a. The Claim is dismissed. b. Judgment for the Defendant on the counterclaim in the following terms: a) It is hereby declared that the Defendant is the sole legal and equitable owner of the property located at No. 22 Frank Hart Street, Arima and described in deed registered as No of 2000 and dated 10 th March 2000 (hereinafter referred to as the said premises). b) The Claimant is to surrender possession of the said premises to the Defendant. c. The Claimant is to pay the Defendant the budgeted costs of the claim and the counterclaim in the sum of $160, d. There shall be a stay of execution of 42 days. 2. The sole undisputed fact surrounding the disputed property is that the Claimant paid the purchase price for the disputed property and a Deed for the disputed property was executed in the Defendant s name. The main fact in dispute is whether the disputed property is held on trust by the Defendant for the Claimant. 3. The Claimant and the Defendant are cousins. The two appear, on the pleadings, to have been very close up until the time the dispute arose. 4. According to the Claimant, he moved to the United States of America in or around 1987 for business purposes. He invested profits from his business ventures into real estate and other commercial enterprises in Trinidad and Tobago. He executed a Business Certificate Page 2 of 25

3 and began conducting business under the name E & M Export Enterprise. The Claimant was also involved in the transport service industry and provided taxi and limo services. 5. Due to the success of his business ventures, in or around September 1999, the Claimant gave to the Defendant $70,000.00USD cash for the purchase of the disputed property. He claims that, pursuant to an oral agreement, they both had the understanding that the legal title in the disputed property would be held by the Defendant on trust for him. Accordingly, the disputed property was purchased for the sum of $380, Prior to this, the Claimant had by Deed dated 1 st February 1999 executed a Power of Attorney in favour of the Defendant. By this Power of Attorney, the Claimant appointed the Defendant to act for and on his behalf in the conduct and management of all his business affairs in Trinidad and Tobago. 7. In or around 2008, the Claimant returned to Trinidad to take up permanent residence. In or around March 2009, he executed a Deed revoking the Power of Attorney. On the 16 th March 2009, his attorney sent a letter to the Defendant requesting that the Defendant execute a deed conveying ownership of the disputed property to the Claimant. 8. The Claimant claims that the Defendant through her attorney only responded by letter dated 27 th September 2009 indicating that the Defendant was prepared to vacate the disputed property by 31 st January 2009 and to execute ownership in favour of the Defendant with the qualification that the Claimant pay to the Defendant certain expenses. 9. The Claimant therefore claims the following relief, inter alia: a. A declaration that the disputed property is held by the Defendant on trust for the Claimant; b. An order for the Defendant to execute and deliver to the Claimant a conveyance in respect of the disputed property in the name of the Claimant; Page 3 of 25

4 c. An order that the Defendant give vacant possession of the disputed property on or before the 31 st December The Defendant claims she was unaware that a Power of Attorney had been in existence until she was served with a Deed of Revocation on the 6 th March Thus she says that at no time did she execute any document or undertake any transaction as the Claimant s Attorney. According to the Defendant, she and the Claimant shared a close relationship and when the Claimant migrated to the USA the relationship continued. The Defendant avers that she visited the Claimant on three occasions and it was on the second occasion that the Claimant asked her to assist him in obtaining property in Trinidad. 11. When the Defendant returned to Trinidad she began looking for properties and discovered a townhouse situate at No. 32 Stratford Court, Westmoorings. The Defendant negotiated the purchase price and registered the property in her name. Later, at the Claimant s request the Defendant transferred the property to Melev Company Limited by Deed dated 23 rd January The Defendant further claims she assisted the Claimant in the management and maintenance of two other properties located in Trincity and Manzanilla which the Claimant had purchased without the Defendant s assistance. Further, the Claimant would on occasion send barrels of clothing which the Defendant would clear through customs and sell on the Claimant s behalf. The money from the sale of the clothing would be sent to the Claimant s sister in Tobago. 13. It was as a result of the Defendant s assistance with the Claimant s business ventures that he proposed that the Claimant find a house which he would purchase for her since she had at the time been living in an HDC apartment with her family. In reliance on this proposal, the Defendant located the disputed property. The Defendant advised the Claimant of the purchase price and the Claimant sent the money for the Defendant to purchase same and pay all other outgoings in the purchase of the said property. Page 4 of 25

5 14. In late December 2000, the Claimant advised the Defendant that since the property would be inherited by her daughter, she should execute a Deed of trust in her daughter s favour. Pursuant to this, on the 23 rd January 2001, the Defendant executed a deed declaring the disputed property to be held on trust for her daughter Zahra Martineau until she attains the age of The Defendant claims that while she did not immediately relinquish the HDC house upon purchase of the disputed property, she eventually relinquished it to HDC as she had relied on the Defendant s promise and thought she was then the owner of a home (the disputed property). 16. The Defendant avers that she spent a considerable amount on the house. She says that the ceiling was termite ridden along with the rafters of the roof and so she refurbished the property. Further, she expanded the master bedroom, built cupboards in the master bedroom and kitchen and also refurbished the bathroom. The total cost, according to the Defendant was $75, The Defendant also stated that she paid land and building taxes for the property totalling $17, The Defendant alleges that in May 2008, the Claimant called her and after using vulgar language towards her stated that the Defendant and her family had insulted him and that she was to return the disputed property to him. The Defendant stated that because of these and other threats she caused the legal and beneficial interest in the disputed property to be re-conveyed to her in an attempt to avoid harm from coming to her daughter. 18. The Defendant therefore counter claims for the following relief, inter alia: a. A declaration that she is the sole legal and equitable owner of the disputed property; b. In the alternative that she is entitled to an equitable interest in the disputed property; Page 5 of 25

6 c. An injunction restraining the Claimant from assaulting, molesting, threatening or otherwise interfering with the Defendant. 19. In reply to the Defendant s claim, the Claimant avers that the barrels that were sent to Trinidad were part of a business arrangement between he and the Defendant whereby the he provided capital and profits on the sale were shared in half. Further, the Claimant claims that his share of the profits was deposited into an Eastern Credit Union account. 20. The Claimant further denies that the disputed property was purchased for the Defendant and claims that it was purchased for business purposes to store and park rental cars owned by the Claimant s car rental business, trading as Duke s Car Rental. Additionally, the Claimant says that the Defendant was required to occupy the disputed property for a period of 8 years or until her daughter attains the age of 21. The Claimant avers that the reason the Defendant executed a Deed of trust in her daughter s favour was that she did not trust her fiancé so that he agreed that it should be done to protect the investment. 21. Finally, the Claimant denies that any expenditure was incurred by the Defendant in relation to the disputed property. Instead, the Claimant avers that it was his own money that was expended on repairs to the sum of approximately $40, Issues 22. The issues arising for determination are therefore as follows: a. Whether the Defendant holds the disputed property on trust for the Claimant. b. If the answer to (i) above is no, whether the Defendant is the sole legal and equitable owner of the disputed property. Page 6 of 25

7 c. If the answer to (ii) above is no, whether the Defendant has acquired an equitable interest in the disputed property. The First Issue 23. The circumstances outlined above give rise to the principles of resulting trust. Where, upon a purchase of land, one person provides the purchase money and the conveyance is taken in the name of another; there is then a presumption of a resulting trust in favour of the person providing the money, unless from the relation between the two, or from other circumstances, it appears that a gift was intended: Halsbury's Laws of England. Volume 16(2) (Reissue), para. 853; Dyer v Dyer [ ] All ER Rep 205; see also Re Vandervell s Trust (No. 2) [1974] Ch 269 at In these circumstances the law presumes that the Defendant holds the property in trust for the Claimant. The Claimant provided the purchase money for the disputed property and the property was conveyed in the Defendant s name. 25. The Defendant may rebut this presumption by, inter alia, leading evidence that the property was intended as a gift: see Underhill and Hayton Law of Trusts and Trustees 16 th Edition, Article 31 page 349. It is therefore the Defendant s burden to prove that the Claimant intended a benefit to her: Seldon v Davidson [1968] 2 All ER 755. Submissions 26. Attorneys for both parties submitted that the paramount issue was whether the evidence shows a contrary intention on the part of the Claimant that the purchase of the disputed property was a gift. 27. It was contended on behalf of the Defendant that she does not hold the property on trust for the Claimant. The Defendant argued that because of the very close relationship she shared with the Claimant, and having regard to the assistance she rendered to him whilst Page 7 of 25

8 he was in the United States of America, the Claimant promised to and did purchase the disputed property for her as a gift. 28. Attorney for the Defendant submitted that if the transferor and transferee have a special relationship at the time of the transfer, then the presumption is weakened, and comparatively slight evidence will be necessary to rebut the presumption: Hayton & Marshall The Law of Trusts and Equitable Remedies 12 th edition pg 323. In so doing he placed reliance on the case of Vajpeyi v Yusaf - [2003] All ER (D) 128 (Sep). The court notes the relevant passages appearing therein: 71. How strong must be the evidence that is required to rebut the presumption of a. resulting trust? This depends on the strength of the presumption. And the strength of the presumption depends 'on the facts and circumstances which gave rise to it. This is because the doctrine of resulting trusts is supposed to be based on common sense. In each case the court is trying to find the answer to the question: what would the parties have intended if they had given thought to the position? 72. In Fowkes v. Pace (1875) L.R. 10 Ch 343, 352, Mellish LJ said: Now the presumption must, beyond all question, be of different weight in different cases. In some cases it would be very strong indeed. If, for instance, a man invested a sum of stock in the name of himself and his solicitor the inference would be very strong indeed that it was intended solely for the purpose of a trust, and the Court would require very strong evidence on the part of the solicitor to prove that it was intended as a gift; and certainly his own evidence would not be sufficient. On the other hand, a man may make an investment of stock in the name of himself and some person, although not a child or wife, yet in such a position to him as to make it extremely probable that the investment was intended as a gift. Page 8 of 25

9 On the next page, referring to the case before him, he said: Then, applying one's common sense to that transaction, what inference is it possible to draw? 73. In Pettit v. Pettit at page 816G Lord UpJohn said: [T]hese presumptions were invented because that represented the common sense of the matter and what the parties, had they thought about it, would have intended. In my opinion, today the doctrine of resulting trusts still represents the common sense of the matter and what the parties would have agreed had they thought about it. At page 823H Lord Diplock said: A presumption of fact is no more than a consensus of judicial opinion disclosed by reported cases as to the most, likely inference of fact to be drawn in the absence of any evidence to the contrary. But the most likely inference about a person's intention in the transactions of his everyday life depends upon the social environment in which he lives and the common habits of thought of those who live in it. 74. Thus, and depending on the circumstances, it is possible for the presumption to be rebutted by comparatively slight evidence: per Lord Upjohn at 814G; see, also McGrath v.wallis [1995] 2 FLR 112 at 122B, C.A. 75. What kind of rebutting evidence is admissible? In Snell's Equity (30th edition, 2000) at 9-16 it is stated that: Page 9 of 25

10 The acts and declarations of the parties before or at the time of the purchase, or so immediately after it as to constitute part of the transaction, are admissible in evidence... ; subsequent acts and declarations are only admissible as evidence against the party who made them, and not in his favour.' 76. I shall now illustrate what I have written. When an unmarried couple intend to live together in the property and both contribute to the purchase price there is, I think, a fairly strong presumption that they intend to hold it in proportionate shares, even though the property is in the name of one of them alone. The fact that both came up with part of the money calls for a common sense explanation, and the most obvious explanation is that they intended the property to be acquired, for their joint benefit. I say a fairly strong presumption, because modem couples usually have the property conveyed into their joint names and, if they do not, one may wonder why. 77. In contrast if a young woman in her first job, not very Well paid, were to raise as much as she could on mortgage in order to buy a flat, what would we make of the fact that her well-to-do uncle, a man on affable terms with her, provided a minor part of the purchase price? Once again the fact that he came up with the money calls for a common sense explanation, but this time the most obvious explanation is not that he wanted a part of the speculation. It is more credible that it was meant to be a loan or, perhaps, a gift. 29. It was contended on behalf of the Defendant that the following circumstances pointed to the conclusion that the Claimant intended a gift to the Defendant: a. That they both shared a very close relationship. At paragraph 63 of the Claimant s Witness Statement, the Claimant advised that the Defendant was like my sister. Counsel stated that the statement like my sister was very Page 10 of 25

11 important as it demonstrated the closeness of the relationship, and put into prospective the strength of the evidence necessary to rebut the presumption of trust. b. That the Defendant assisted the Claimant in his many business ventures in Trinidad while he lived in the US. For instance the Defendant painted the property in Sunrise Park. c. The repetition of the Claimant s offer. The Defendant stated that the Claimant s offer to purchase a property for her was repeated to her on several occasions and it was only after cautious consideration and consultation with her family, she accepted same. d. The properties purchased by the Claimant in Westmoorings, Millennium Park, Sunrise Park and Trincity were all new properties in affluent arrears. However the disputed property was in a less affluent area needed repairs, it was termite ridden. Counsel submitted that the reason for such disparity in the quality of properties purchased by the Claimant was that the Defendant felt based on the Claimant s generous offer she had to be reasonable in what she was going to purchase. e. Placing the property on trust for the Defendant s daughter. f. The Defendant effecting repairs on the disputed property. The Defendant s evidence was that she took a loan from the bank to effect some of the repairs. g. The Defendant relinquished her apartment in Maloney. 30. The Claimant testified that in or around July 1999, he informed the Defendant that he had embarked a business prospect which involved the investment in real estate in Westmoorings, Trinidad. Having explained that his efforts to complete said endeavor had been stalled, as he had not yet been granted permanent residency status and could not freely travel in and out of the United States of America he was not personally available to complete said transaction. The Claimant proposed for the Defendant to be his fiduciary/attorney and to act on his behalf in effecting the completion of said purchase. Thus it was contended that the Defendant s acquiescence to this proposal gave rise to a Page 11 of 25

12 trust relationship between the parties. According to the Claimant, all the transactions done with the Defendant were business or investment arrangements. 31. Counsel for the Claimant submitted that the following matters ought to be taken into account in determining the Claimant s intention: a. The execution of a Power of Attorney whereby the Claimant, who at the time could not freely travel in and out of the United States of America, and was therefore not physically available for the conducting of business within this jurisdiction, did appoint the Defendant as the lawful attorney to act in conduct and to manage all my [his] affairs within Trinidad and Tobago. b. The very nature of the transaction for the purchase of the subject property as it relates to the specific role of the respective parties. As was pleaded by both the Claimant and the Defendant, at the time of the 2000 purchase of the subject property, they had shared a history of pursuing business ventures wherein the Claimant would provide all requisite financing and the Defendant had the function of operating same. c. The Defendant s role as the recorded/registered owner in the aforesaid business transactions was clearly of a fiduciary nature, born out of the Claimant s inability to physically/personally execute and/or complete the requisite transactions. On the other hand, the Claimant through his authoritative and financial input has always maintained the rights and privileges of a beneficiary therein. d. Additionally, for undertaking this function as attorney which was substantiated by the Power of Attorney discussed above, the Defendant has always been aptly remunerated for acting on behalf of the Claimant; and the Claimant has always enjoyed the benefits of the proceeds therein. e. The Claimant s continued financial responsibility towards the payment of the requisite taxes and insurance; the repairs and renovations; and the maintenance Page 12 of 25

13 and upkeep of the subject property for the years subsequent to the purchase of same. f. The representation of the Defendant that she was prepared to vacate the [subject] property by 31 st January 2011 and execute ownership of the said property in favour of your client [the Claimant] as stated in correspondence of Stephen Salandy, Attorney at law for the Defendant, dated the 27 th September, 2010 in response to the Claimant s pre-action protocol letter dated the 16 th day of March, 2009 instructing the Defendant to vacate the subject property and to duly assign all rights as named owner therein. g. The Defendant s physical relinquishment of the subject property sometime in the last quarter of 2013 whereby all furnishings; household equipment and appliances; and personal effects were removed. The said premises had been left improperly secured and neglected and as a consequence had become covered by overgrown bushes; in a state of disrepair and disarray and the target of vandals and other miscreants. As a consequence the Claimant in effort to protect the substance of the subject property did on the 23 rd day of January, 2014, file an ex parte application requesting the intervention of the Court for him to enter the subject property for the purposes of securing and maintaining same. Said relief was granted pending the determination of this claim. In this regard the court notes that there was no challenge to this order by way of application for discharge or otherwise. h. The Defendant s utterances ah wanted to give him back his house which were made on cross-examination during the trial when she was questioned as to why she had expressly agreed to the assignment of the subject property to the Claimant. Page 13 of 25

14 Evidence 32. Evidence on behalf of the Defendant s case was given by the Defendant herself. She testified that when the Claimant migrated to the US in the 1980s, they maintained a cordial relationship. Although they spoke occasionally their communication became infrequent over the years. In 1991 the Defendant went to New York for her father s wedding. On that visit, she and the Defendant spent a lot of time together. Following this visit, when the Defendant returned to Trinidad, the communication between her and the Claimant became more frequent. 33. According to the Defendant, in or around 1992 or 1993, the Claimant suggested she come visit him in New York. The Claimant purchased her return ticket and accommodated her at his residence. It was on this visit that the Claimant broached the topic of selling clothes in Trinidad. The Defendant says that the Claimant proposed that he send barrels of clothes to the Defendant and that she would sell them. The Defendant agreed. However, the Defendant says that the Claimant only sent barrels on about two occasions and on those occasions she sent the money from the sale to the Claimant s sister in Tobago. 34. Although the Defendant testified in her evidence in chief that the proceeds from the sale of the barrel clothes were sent to the Claimant s sister in Tobago, the Claimant testified that the proceeds were deposited in a credit union account. In cross examination, the Defendant testified that she did open an account at the Cathedral Credit Union but did not indicate what the account was used for. 35. The Defendant testified that in or around September in the late 1990 s, she visited the Claimant again. On this visit the Claimant told the Defendant that he was interested in going into the real estate business in Trinidad. He asked the Defendant if she would be willing to look for and purchase property on his behalf. On returning to Trinidad and after speaking with her common law husband about the Claimant s request, the Defendant began looking for properties for the Claimant. Page 14 of 25

15 36. The Defendant gave evidence that she saw an advertisement in the newspapers for a property in Westmoorings at #3 Statford Court, Westmoorings and informed the Claimant of same. The Claimant instructed the Defendant to view the property. Upon viewing the property, the Defendant advised the Claimant on what she had seen. The Claimant expressed his interest in purchasing the property and subsequently posted the money in USD via courier packages. The Defendant then gave the money to another family member who then issued a certified cheque to Westmoorings Limited for the deposit on the purchase of the property in Westmoorings. Subsequent to this, the Defendant entered into an agreement for sale. On completion of the transaction, the property was vested in the Defendant s name. At the request of the Claimant and with funds provided by the Claimant, the Defendant purchased furniture, air-conditioning, and carpet for the building. According to the Defendant, although this property was in her name, she knew it was a matter of convenience and that the property belonged to the Claimant. 37. NEALCO real estate agency was employed to obtain a tenant for the property. The rental income from the property was paid in USD and was deposited in the Defendant s US account at Royal Bank. The Royal Bank account was opened for this specific purpose. 38. According to the Defendant, in the latter part of 1999, the Claimant told her that he recognised that she was helping him a lot and told her he wanted to purchase a property for her. He told her to look for a house and he would give her the money to purchase same. After lengthy discussions with her common law husband, the Defendant took the Claimant up on his offer and began looking for a house to purchase. She stated that it was because of the Claimant's repeated offers after the initial conversation that she formed the impression that he was serious. As such the Claimant located the disputed property which at the time was in need of repairs. 39. The Claimant forwarded to the Defendant the deposit on the purchase price via courier and the Defendant entered into an agreement for the purchase of the property. Again the Page 15 of 25

16 Claimant sent the balance of the purchase price via courier and a deed of conveyance was executed in the Defendant s favour. 40. The Defendant testified that she paid for the repairs needed on the disputed property, which included repairs to the roof, installation of a new kitchen, bedroom cupboards and extension of the master bedroom and retiling the kitchen counter. Notwithstanding this, the Defendant says that the Claimant paid for repairs to the ceiling. In total however, the Defendant expended the sum of $48, The Defendant gave evidence that sometime in 2001, the Claimant advised her that since her daughter would be the ultimate beneficiary of the disputed property, she should hold the property on trust for her daughter. As a result the Defendant executed a deed transferring the disputed property to herself on trust for her daughter. 42. The Defendant stated that owing to the fact that the Defendant believed the property was hers, she eventually gave up her HDC apartment. She explained that although she moved to the disputed property in 2000 she allowed a friend to stay in her HDC apartment for some years. The friend s occupation ended when he passed away. The Defendant does not give an exact date, but in a letter dated 14 th January 2011, from a Senior Supervisor at HDC, it is stated that the Defendant was a tenant of the apartment in Maloney from 1 st June 1985 to 1 September The document has not been challenged and the court accepts that the Defendant s ownership of the apartment ended in The Defendant further testified that in furtherance of the Claimant s promise, she insured the disputed property for the years 2001 to 2010 with American Life and General Insurance Company (Trinidad and Tobago) Limited. The Defendant also stated that she paid the house rates and WASA rates. 44. The Defendant s evidence was that in 2004, the Claimant requested that she transfer the Westmoorings property to a company the Claimant had formed by the name Melev Page 16 of 25

17 Company Limited. The Defendant complied with this request. In the same year the Claimant returned to Trinidad to live and the Royal Bank account was closed. 45. The Defendant s relationship began to deteriorate in or around November 2007, when the Claimant started bringing back up past disagreements. A rift between the two arose and there was no communication from then until May 2008 when the Defendant received a telephone call from the Claimant who told her that he wanted back his house. 46. The Defendant testified that the Claimant began threatening her and as a result she reconveyed the disputed property to herself to protect her daughter from any possible harm or conflict with the Defendant. 47. The evidence on behalf of the Claimant s case was given by the Claimant himself. He testified that he and the Defendant enjoyed a very close relationship. His evidence was that when the Defendant was a teenager, she came to live in Tobago with his parents. The Claimant was 14 at this time and stated that he and the Defendant grew up together. He stated that he entrusted her with his financial affairs in Trinidad and from time to time would assist her financially. He gave evidence that he migrated to the US in 1987 to pursue studies and business and investment opportunities. 48. According to the Claimant he operated a business in the US called E&M Export Enterprise. This business entailed buying goods and shipping same to Trinidad and Tobago, Jamaica, Gambia and Nigeria. Further, the Claimant testified that he would ship consignments to Trinidad which the Defendant would sell. The Claimant stated that the profits from these sales were shared between the Claimant and himself. 49. The Claimant also testified that between 1998 and 1999, the Defendant assisted him in obtaining a townhouse in Westmoorings. He gave evidence that he provided the purchase price and the deed in relation to that property was executed in the Defendant s name. The Claimant stated that he authorised her to administer the property ensuring all rent was collected and bills paid. Page 17 of 25

18 50. It was also the Claimant s evidence that in 1999 he started a car rental business in Trinidad, registered as Duke Car Rentals. The business was registered in the name of the Defendant and her son, Damien. According to the Claimant the business was set up with two main objectives: (1) so that the Defendant who wanted constant financial assistance from him could have an entity whereby the Defendant could elevate herself out of poverty, and (2) to allow the Defendant to acquire sufficient funds to purchase her own home. 51. Thus, he purchased two cars and the agreement between the two was, inter alia,: i. He would finance the purchase of the first two cars and the income at the beginning from the rental would pay him back for the purchase price of the cars. ii. After he is paid back for the cars, the rental income would be split between he and the Defendant. iii. All records of the business transactions would be kept by the Defendant until the Claimant s return to Trinidad. 52. In 1999, he held discussions with the Defendant, whereby he indicated to the Defendant that he was interested in purchasing an investment property in east Trinidad which would also be used as a Head Office for the car rental business. While the Defendant lived in an apartment in Maloney, the Claimant felt that since the clientele for the car rental business would be corporations, that location would not be suitable. The Claimant further stated that the Defendant would frequently complain to him about her living situation that her apartment would often flood. According to the Claimant, he took the decision to deal with both the Defendant s problems and the business need with the purchase of the disputed property to house the Defendant and provide proper parking for the vehicles. Notwithstanding this, the Claimant stated that he agreed with the Defendant that she would hold onto her Maloney apartment. Page 18 of 25

19 53. The disputed property was located by the Defendant in 1999 and negotiations began. The disputed property was eventually purchased by the Claimant providing the purchase price and the property was conveyed to the Defendant. The Claimant maintained in his evidence that all repairs to the disputed property were paid for by him. Further, the Claimant stated that while the Defendant paid the land taxes for the house for the period 2003 to 2007, in August of 2007, he repaid her and gave her a further sum to cover the period 2007 to The agreed total for the land taxes was $ which was sent to the Defendant via Western Union. 54. The Claimant testified that placing the property in the Defendant s name was not uncommon as throughout his life he often assisted his family members in the same way. He explained that he thought it was the right thing to do to assist family and friends. 55. According to the Claimant, within six months of the Defendant moving into the disputed property, she informed him that she was getting married to Don Martineau. She however expressed to the Claimant that she did not trust him with the disputed property. Consequently, the Claimant decided that the property should be transferred to herself on trust for her daughter. The Claimant explained that he had a plan with the Defendant that she was to live in the house for eight years. After expiration of the period, the house was to be sold or turned over to the Claimant. As such, the property was placed in the Defendant s name on trust for her daughter for the period of the investment, that is, until her daughter attains the age of 20. Owing to the fact that the Defendant s daughter was 12 at the time and would be 20 in 8 years. 56. The Claimant gave evidence of the changing attitude of the Defendant and that she developed what he has described as a lofty behaviour. In 2002, the Claimant and Defendant had a disagreement which resulted in the deterioration of their relationship. Further, the Claimant testified that the Defendant was found to be removing money from the US account at Royal Bank. Page 19 of 25

20 57. It was at this point that the Claimant decided to secure his interests. He caused the Westmoorings property to be transferred in the name of his company Melev Company Ltd, he retrieved the sole remaining car from the car rental business (the other car had been destroyed by the Defendant s son) and he took possession of all bank and credit union accounts which the Defendant held for him. Further, the Claimant executed a revocation of the power of attorney which he had previously granted to the Defendant. Findings 58. The question whether the disputed property was a gift turns on whether the court believes the Claimant s averment that the disputed property was purchased for the sole reason of being the office for the car rental business. The court agrees with the submission of the Defendant that the most likely inference about a person's intention in the transactions of his everyday life depends upon the social environment in which he lives and the common habits of thought of those who live in it. The strength of the presumption here thus depends on the Claimant s social environment and necessarily the relationship between the two. On this issue the court believes that the relationship between the Claimant and the Defendant was that of brother and sister. Both parties testified that they were very close. In fact, the Claimant gave evidence that they grew up together. The Claimant further stated that he always did things for his family and friends because he felt it was the right thing to do. The presumption that he intended that the Defendant hold the property on trust for him in the court s view is not a strong one. 59. The court does not agree that the arrangement with the Defendant in relation to the Westmoorings property gave rise to a relationship of trust as submitted by the Claimant. The arrangement with the Westmoorings property was but one arrangement and it is quite possible and even probable in these circumstances that subsequent transactions were not made with the same intention. Further, besides the Westmoorings property, there is no evidence of other property arrangements similar in nature, with the Defendant playing a Page 20 of 25

21 pivotal role so as to effectively colour and clothe the relationship between the Claimant and Defendant as being strictly business at all times. 60. The Defendant in cross-examination disputed the Claimant s claim that the disputed property was purchased as the office for the car rental business. The Defendant testified that the car rental business was aligned with the Westmoorings property in that whoever rented the Westmoorings property would have the ability to use the cars. The Defendant s evidence was that in actuality the renters of the property in Westmoorings had access to one vehicle while her son used the other to help out with the business and homes owned by the Claimant. This has not been disputed. It is therefore hardly likely that there would have been a need to purchase an entire property for the purpose of housing a car rental business which owned two cars, one of which was the only one in use. It is also passing strange that there is no evidence that more cars were being acquired so as to at least provide a reasonable basis for the purchase of a property for that purpose. The court also notes that while the Claimant has stated that he was informed by the Defendant that large firms such as Royal bank were renting from him (which is denied), his actions in not asking to see the relevant contracts when he visited Trinidad seems passing strange and inconsistent with the actions of someone who had invested in this business and was interested in its growth. The court therefore does not believe this evidence from the Claimant. Further, there is no evidence that an office was in fact set up at those premises. 61. It is noteworthy that the car rental business was registered in June 1999 and its registered office was stated as #26 Pinto Circle, Santa Rosa Heights, Arima. It was registered in the Defendant s and her son s names. According to the Claimant, the Santa Rosa property was found in May 1999 and negotiations to purchase same began with the owner. The Claimant testified that in reliance on the agreement for sale of that property, he registered the business with that address. Negotiations for the purchase of the Santa Rosa property broke down because the house was encumbered by a mortgage. The Claimant claimed that the search for a property to run the car rental business continued and ended when the disputed property was located. What stands out to the court is that the Claimant, not having obtained the Santa Rosa property, did not seek to rectify the business document to Page 21 of 25

22 reflect that the registered office was actually the disputed property. Further, the Claimant had in 1998 executed an agreement for sale of the Westmoorings property and had paid a deposit on the purchase price for same. What is more, at the time of the registration of the car rental business therefore it was possible for the Claimant to use that address as the registered office instead of using the address of a property he had not yet acquired and in fact never did. The Claimant, being the person with the knowledge as to why either of these possibilities was not done, was silent as to the reason for so doing. This does not assist the Claimant's case. This leads the court to believe that if it was really the case that the disputed property was being purchased for the stated purpose, then certainly, the business address would have been rectified. 62. When the court examines the evidence in relation to both the Westmoorings property and the disputed property the following comparisons can be made in relation to the way in which the Claimant dealt with those properties: Westmoorings Property The agreement for sale was entered into by the Claimant. He later assigned his rights, title, estate and interest under the agreement for sale to the Defendant. The Conveyance was made in the Defendant s name. The property was rented out. The Claimant was, to a large extent, involved in the transaction. On the Claimant s instructions, the property was transferred to the Claimant s company in Disputed Property Other than providing the purchase price the Claimant was not involved in the transaction. The property was immediately vested in the Defendant. Page 22 of 25

23 The Claimant instructed the Defendant to transfer the disputed property to herself on trust for the Defendant s daughter in The Claimant s dealing with the Westmoorings property was, on the evidence, clearly reflective of a business transaction. The court does not see the same elements present in the Claimant s dealings with the disputed property. The transaction in respect of the disputed property demonstrates no business purpose. The Defendant is asked to choose, the Defendant takes possession, no office is opened there on the evidence and no cars except for the one working car are kept there. 64. Additionally, the advice to the Defendant by the Claimant to convey to herself on trust for her daughter supports the contention of the Defendant that the property was to be a gift. It does not support the Claimant's claim. If the Claimant was so concerned about the motives of the fiancé of the Defendant, in that he may have sought to take the property from him, then the only sensible thing to do would have been to take a conveyance of the property unto himself or his company. Certainly, the creation of a trust which was revocable was not the way to secure the title as the property could easily have been reconveyed as was eventually done but by the influence of the fiancé. 65. Further, the Claimant stated that although he instructed his attorney to take steps to revoke the power of attorney granted to the Defendant, he could not execute same as he reflected on his relationship with the Defendant and felt as though the Defendant was like a sister to him and her daughter an innocent party. The court is of the view that a transfer of the disputed property to his company, like what was done with the Westmoorings property, would have been capable of securing his interest while still honouring the alleged agreement. 66. The court also agrees that the factors set out by the Defendant at paragraph 29 above make it highly probable that the purchase was intended as a gift. Matters such as storage of the car were incidental benefits to the Claimant in this regard as it was his intention to continue to grow his businesses with the assistance of the Defendant. Page 23 of 25

24 67. The evidence does not support the conclusion that the purchase of the disputed property was a business arrangement. When the relationship between the Claimant and the Defendant began to break down, he dealt with every business aspect of his relationship with the Defendant save for the disputed property. He (1) caused the Westmoorings property to be transferred to his company, (2) retrieved the remaining car from the car rental business (3) took possession of all bank and credit union accounts which the Defendant had held for him (4) he instructed his attorney to draft a deed of revocation of the power of attorney. There was no business dealing with the disputed property. 68. The court is of the view that the evidence indicates that the Claimant intended to confer both the legal and beneficial title of the disputed property onto the Defendant s name. It is apparent, on the evidence, that the Claimant intended a gift in that transaction but changed his mind years after by which time it was too late. The presumption of a resulting trust has therefore been sufficiently rebutted by clear evidence from the Defendant in this regard and the court so finds. 69. The submission by the Claimant that the Defendant's answers at the end of crossexamination in relation to a visit to an attorney to execute a deed of gift prior to trial was an admission that the house was owned by the Claimant holds no merit in the court's view. Any assessment of evidence necessarily involves the application of practicality, reasonableness and of utmost importance, context. It is clear from the evidence that the Defendant was maintaining at all times during her cross-examination that the property was a gift. It is in this light that her statements at the end of her cross-examination must be examined so as not to obfuscate the true meaning of the evidence. The court understands her evidence on the issue of the visit to Ms. Piper to execute a deed of gift to mean that she was willing to return the gift that had been given to her because she could no longer live with the harassment by the Claimant. In the court's view, this is in no way reflective of the nature of the original transaction and this evidence will therefore not be used in such a manner. 70. For these reasons, the other issues set out above do not arise for consideration. Page 24 of 25

25 71. Before closing however, there has been one aspect of this case that has caused the court much concern. It is the evidence of the Defendant that on more than one occasion, substantial sums of money were sent to her by the Claimant by way of courier package emanating from within the United States of America. These monies were used to purchase the disputed property. The effect of this, if true, would be that of circumventing all financial regulations relating to the transfer on money in force at the time and may or may not point to the commission of several criminal offences by several persons, individual and corporate. As a consequence the court shall direct the Registrar of the Supreme Court to forward a copy of this written judgment together with copies of the relevant pleadings, witness statements and evidence to the Director of Public Prosecutions for his attention and action if he deems fit. Dated this 27th day of May, Ricky Rahim Judge Page 25 of 25