IN THE HIGH COURT OF JUSTICE ARLENE YORK AND RATTAN RAMKISSOON BEFORE: THE HONOURABLE MADAM JUSTICE A. TIWARY-REDDY

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1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV BETWEEN ARLENE YORK AND CLAIMANT RATTAN RAMKISSOON DEFENDANT BEFORE: THE HONOURABLE MADAM JUSTICE A. TIWARY-REDDY APPEARANCES: Reah Sookhai instructed by Ravi Doodnath for the Claimant Robert Boodoosingh for the Defendant JUDGMENT INTRODUCTION 1. This is an action for breach of a contract for the sale of land in which the Claimant is seeking a refund of the deposit of $620, as well as $150, being the cost of renovations and loss of profits. This claim arose out of an oral agreement made in May 2004 between the Claimant and 1

2 Paul Steeghs (Paul) as Purchasers and the Defendant as Vendor, for the sale of a farm in Wallerfield comprising twenty-two acres and thirty-five perches (the farm). The Defendant contends that the alleged contract was converted into a rental agreement and counterclaims for possession of the farm and arrears of rent. 2. On this Court granted the following interim orders: 1. An injunction restraining the Defendant whether by himself his servants and/or agents or otherwise howsoever from ejecting the Claimant from the farm situate at No. 34, Eastern Main Road, Wallerfield, Arima; 2. An injunction restraining the Defendant whether by himself, his servants and/or agents howsoever from harassing, threatening and abusing the Claimant; and 3. An injunction restraining the Defendant whether by himself, his servants and/or agents or otherwise howsoever from interrupting the Claimant s use and occupation of the said property; until the trial of this action. CLAIMANT S EVIDENCE 3. The Claimant, Paul and the Claimant s cousin, Selwyn Hosein (Selwyn) gave evidence for the Claimant while the Defendant and his secretary, Sandra Mathew testified for the Defendant. 4. Prior to May, 2004 the Claimant had been in a common-law relationship with Paul, a citizen of Holland and of this union they have a child, Chelsie Ellie Steeghs, aged about three. The Claimant gave evidence that in May 2004 an 2

3 oral agreement was made between the Claimant, Paul and the Defendant for the sale of the farm on the following terms: a. The purchase price for the said property to be three million dollars ($3,000,000.00). b. A deposit of the sum of six hundred thousand dollars ($600,000.00) to be paid to the Defendant. c. The balance of the purchase price in the sum of two million four hundred thousand dollars ($2,400,000.00) to be paid over a period of eight (8) years. d. On the payment of the deposit the Defendant will give the Claimant and Paul vacant possession of the farm. 5. Later in the said month the oral agreement was reduced into writing, but was never signed by the parties. Two unsigned agreements (Documents 1 and 2) were tendered into evidence and the Defendant confirmed that both had been prepared by his (the Defendant s) attorneys. Both agreements referred to the Claimant and Paul as the purchasers, the purchase price being $3,500, and the deposit being $600, Both agreements stated that the balance of the purchase price was $290, (instead of $2,900,000.00). Both agreements described the property as comprising 22 acres 5 perches referred to as a plan annexed to Deed of Lease registered as No of Document 1 stated that completion would take place in 90 days or 14 days after receipt of a Consent from the Director of Surveys, whichever is the earlier date. Further, if the Purchasers failed to complete the transaction, the Vendor would forfeit 10% of the deposit made herein as liquidated damages for breach of contract. If the Vendor failed to complete the Vendor would refund the deposit together with interest at 12% per annum. Document 2 stated that the balance will be paid in quarterly instalments of $12,

4 commencing for a period of 8 years or on or before No mention is made in this document of any refund of the deposit or any rate of interest. 7. It should be noted that in Document 2 the quarterly instalments of $12, over 8 years ($12, x 4 x 8) would amount to $386, If as the Claimant and Paul maintained the purchase price was $3 million, the balance would be $2.4 million. For his part the Defendant insisted that the purchase price was $3.5 million, therefore the balance would be $2.9 million. Document 2 also contained two Schedules, the second of which listed the following: (1) 11 Poultry Pen with full equipment (2) 3 Main house with all its amenities and furnitures. 8. In her witness statement the Claimant maintained that the oral agreement was reduced into writing but never signed by the parties as the rate of interest had been changed from 9% per annum to 12%. Further the Claimant had sought to clarify this issue with the Defendant, who failed to respond. It is worth noting that the only mention of interest in contained in Document 1 which provided that the Vendor would refund the deposit together with interest at 12 percent per annum if the Vendor failed to complete. 9. In cross-examination the Claimant admitted that while the Defendant had said that the purchase price was $3.5 million he gave it to us for $3 million. Of the two written agreements the Claimant said: There was only one agreement with two sets of paperwork. The second document states completion will be in 8 years. I do not know about the first document. I really only know about the second document which says 8 years for completion 4

5 Again it is worth noting that the deposit of $600, amounts to 20% of $3 million. Further Document 2 omitted the clauses contained in Document 1 which provided for the failure by either party to complete the transaction. 10. Selwyn had worked in the poultry business for many years and is a Grade 7 Technical Assistant II in charge of the livestock operations at the University of the West Indies. Selwyn had known the Defendant for about 20 years and had worked with the Defendant when the latter was a director of Supermix Feeds. Selwyn advised the Claimant and Paul that the farm was a potentially viable business. 11. At the time of this transaction the Claimant had lost her identification cards in a burglary at her home and experienced difficulty in opening a bank account. At this time Paul was working in Kazakhstan and was required to be out of Trinidad for two months at a time. Further it was their intention to use monies from Paul s bank account in Holland to fund the deposit on the farm. On Paul executed a Power of Attorney in favour of Selwyn and opened a joint account with Selwyn at the Gulf City branch of Republic Bank. Thereafter Paul wired the sum of $600, from Holland into the said joint account. On Selwyn had a Manager s cheque in the sum of $600, issued in favour of the Defendant. The Claimant gave this cheque to the Defendant and went into possession of the farm shortly thereafter. 12. Immediately upon taking possession the Claimant did the following: (a) Removed truckloads of garbage from the said property. (b) Purchased supplies including hayforks, wheelbarrows, spray cans and other garden supplies for the operation of the farm. 5

6 (c) Purchased electrical supplies for the poultry pens, for the sum of $8, (d) Purchased chick waterers and chick feeders from Arawak Limited for the sum of $75, (e) Constructed an office to the rear of the said farm at a cost of $4, (f) Carried out plumbing works costing $10, (g) Installed burglar proofing costing $15, (h) Purchased hardware supplies to facilitate renovation for the period The Claimant estimated that she had expended approximately $150, on the above renovations. She also produced a statement from The Ideal Supply Stores Limited in Arima for the period January 2005 to September 2006 in the total sum of $52, for the supply of building materials to herself at Wallerfield. This statement was not challenged by the Defendant. 13. Both the Claimant and Paul maintained that the farm needed extensive renovations, which the Claimant carried out. Paul continued working abroad save for short visits to Trinidad in September and December 2004, while the Claimant operated the farm. At around this time their common law relationship came to an end and they agreed that the Claimant would operate the farm and pay the balance of the purchase price. 14. The Claimant reared chickens and planted numerous short-term crops including dasheen, cabbage, tomatoes, broccoli, cauliflower, lettuce, sweet peppers, pigeon peas, pumpkin and patchoi. The Claimant maintained that she earned $200, every six weeks from operating the farm. 15. The Claimant stated that in or about November 2005 she offered the Defendant the sum of $80, as part payment of the balance of the purchase price. The Defendant refused this sum and demanded that the 6

7 Claimant vacate the farm. Thereupon the Claimant requested a refund of the deposit of $600, together with the cost of the renovations. The Defendant insisted that he would not refund her any monies and the Claimant continued to operate the farm. 16. The Defendant returned to the farm in April 2006 and informed the Claimant that she must pay $30, towards the remainder if she wished to stay on the farm. The Claimant was only able to pay $20,000.00, which she paid to the Defendant in cash in his office. The Defendant presented a document to the Claimant for her signature alleging it was a receipt for $20, The Defendant did not allow the Claimant to read the document which she saw bore the sums $30, and $20, and which she signed. The Defendant requested that the Claimant pay him a further deposit after the next grow-out of chickens in September The Claimant alleged that during August September 2006 a quantity of chickens was stolen from the farm by two of her employees, Shawn Martin and Rajesh Roy. The Claimant made a report to the police who investigated the matter and arrested and charged the said employees. It is to be noted that in her witness statement filed on the Claimant alleged that the value of the stolen chickens was $16, while the police report noted that the value was $35, The Claimant maintained that as a result of this theft she suffered losses and became indebted to Master Mix Trinidad Limited in the sum of approximately $300, and became almost bankrupt. The Claimant informed the Defendant of her financial situation and promised to pay a further deposit as soon as she could. 19. In or about September, 2006 the Defendant came on the farm, changed the lock on the main entrance and informed the Claimant that he was now renting 7

8 the farm to Harrison Sooknanan (Harrison). Prior to September 2006 the Claimant had been involved in a common law relationship with Harrison and out of this relationship the Claimant bore him a child, Melani Marie York, now about a year old. 20. The Claimant asked the Defendant to refund the deposit of $620, plus the cost of the renovations. The Defendant bluntly refused, yelled obscenities at the Claimant and threatened to shoot and kill her. The Defendant gave the Claimant 7 days to vacate the farm. 21. Harrison then took possession of the farm, occupied the Claimant s poultry pens and refused the Claimant access to her growing crops. Harrison reaped and sold her crops to a value of $1, per week and sprayed and killed her pumpkin crops. Harrison also appropriated a large quantity of manure and poultry feed valued $5, Harrison also caused the Claimant to lose $1, worth of seedlings and crops. The Claimant was excluded from the farm for the period September to December 2006, during which period she lost earnings and profit of approximately $400, The Claimant resumed possession of the farm consequent upon the Orders of this Court referred to at paragraph 2 hereinabove. 22. In cross-examination the Claimant admitted that she never paid any of the quarterly instalments of $12, plus. She also denied that the agreement for sale was converted into a rental agreement as alleged by the Defendant. 23. Paul corroborated the Claimant s evidence of the agreement to purchase the farm based on Selwyn s advice, the circumstances in which he executed the Power of Attorney in favour of Selwyn and wired the sum of $600, from his bank account in Holland to Selwyn to pay the deposit on the purchase of the farm. Paul confirmed that he shared a common law 8

9 relationship with the Claimant from 2001 to the end of 2004 and finally broke up in June Paul stated that while he paid the deposit, it was agreed by the Claimant and himself that the Claimant would be responsible to pay the balance of the purchase price and would own the farm. Paul also confirmed that the farm was in a bad condition, needed lots of repairs and equipment and that the Claimant had renovated the farm. According to Paul: The farm was in a bad condition. A lot of repairs needed to be done and a lot of equipment was missing also. So we needed to do repairs in the roofing and fencing The whole farm was overgrown by bull grass and weeds Today the farm is fully operating as far as I can see The living quarters are liveable and clean Ms York undertook the repairs on the farm so even though our relationship ended I told her to keep the down payment and to continue the business. 25. In cross-examination Paul insisted that the purchase price was always $3 million and the balance would be paid in 8 years time. He vehemently denied entering into any rental agreement: I did not tell the Defendant the $600, should be used as rent at the rate of $25, per month from May This was never raised or discussed. 26. With respect to the unsigned agreements Paul stated: The written agreement was being prepared by the Defendant and we never signed because we never agreed 9

10 on the terms of the written agreement because the amount had changed at one point and the interest rate had to be taken into consideration. The amount we agreed verbally was TT $3 million and the later written agreement contained $3.5 million. We did not agree to $3.5 million. We did not enter into any other agreement with the Defendant. I never entered into any rental agreement with the Defendant. Rental was never discussed or agreed. DEFENDANT S EVIDENCE 27. The Defendant s evidence was that in May 2004 there was an oral agreement for sale of the farm firstly between the Defendant and Paul. The Claimant was included in two subsequent draft agreements which were never agreed to or signed by any of the parties. He said that the purchase price was not $3 million but $3.5 million and referred to Documents 1 and 2. The balance was to be paid in quarterly instalments for 8 years. At paragraph 7 above this Court noted that the instalments fixed at $12, in Document 2 and over 8 years would amount to $386, and not $2.9 million. Neither party referred to this issue. 28. The Defendant admitted that he received the deposit of $600, in June 2004 and gave the Claimant possession of the farm. He denied that the Claimant offered him $80, in November 2005 and said the last payment received from the Claimant was $20, in April In cross-examination the Defendant maintained that in May 2004 the farm was in working condition and had been in operation three weeks prior to the sale. He insisted that there was adequate accommodation and equipment on the farm and added If you want Westmoorings style you can t expect to have such a house on the farm. Further after the Claimant and Paul began 10

11 occupation of the farm they commenced renovations. chicken industry the tenant is responsible for repairs. However, in the 30. According to the Defendant in late 2004 Paul agreed to convert the agreement for sale into a rental agreement and apply the deposit of $600, at the rate of $25, per month for two years. This sum would have been exhausted in June However, in April 2006 the Claimant agreed to renew the rental agreement at a rate of $30, per grow-out and paid him $20, Thereafter the Claimant paid no further rent. 31. The Defendant produced Document RR2 dated signed by the Claimant and himself as evidence of the rental agreement. However the Claimant strongly denied signing any rental agreement but could not explain how her signature appeared on this document. The Claimant was asked to vacate the farm for arrears of rent in September 2006 and not November 2005 as alleged. Thereafter the Defendant entered into another agreement with Harrison Sooknanan on for rental of the farm at $30, per grow-out period being 10 weeks. 32. Sandra Matthew (Sandra) testified that she was a secretary in the Defendant s company and witnessed the Claimant sign the rental agreement and that she (Sandra) prepared and signed the receipt dated for the sum of $20, paid by the Claimant to whom she gave the original. However she accepted that her signature did not appear on the copy of the receipt tendered in evidence. 33. In his witness statement the Defendant failed to provide specific dates for most events save for the date of the rental agreement with Harrison Sooknanan. This is unusual coming from an astute businessman of some 40 years. 11

12 PURCHASE PRICE 34. There is a dispute as to whether the parties agreed on the purchase price. The Claimant said the Defendant asked for $3.5 million but gave it to them for $3 million. Paul said the amount we agreed verbally was $3 million TT, and the later written agreement was $3.5 million. We did not agree to $3.5 million. The Defendant said Both documents stated that the purchase price was $3.5 million. I never agreed to accept $3 million because they never had any money to pay. They gave me a deposit of $600, and I gave them possession of the farm. 35. Neither side referred to this issue in their respective submissions. It is also significant that neither party is seeking specific performance. The Claimant is seeking damages for breach of an oral contract for the sale of land supported by a sufficient act of part performance. In his counterclaim the Defendant seeks possession of the farm and arrears of rent. He is contending that there was an agreement for the sale of the farm and this agreement was converted into a rental agreement. This was strongly denied by the Claimant and Paul. FINDINGS OF FACT 36. Having seen and heard the witnesses and after reviewing the evidence and the documents, this Court finds that the Claimant and her witnesses were more credible than the Defendant and his witness. This Court was particularly impressed with the witness Paul Steeghs who came from Kazakhstan and gave his evidence in a forthright manner in support of the Claimant, his former common law wife. 12

13 37. I make the following additional findings: (a) In May 2004 the Defendant orally agreed to sell the farm to the Claimant and Paul. (b) In June 2004 Selwyn paid to the Defendant the sum of $600, on behalf of Paul and the Claimant as a deposit on account of the agreement for sale whereupon the Defendant let the Claimant into possession of the farm. (c) Upon taking possession the Claimant found that the farm was in a dilapidated condition and proceeded to carry out substantial repairs and renovations to the farm to the extent of $150, and brought the farm up to a fair operating standard. (d) The purchase price of the farm was not agreed by the parties nor was it ascertainable. (e) Neither the Claimant nor Paul agreed to convert the agreement for sale into an agreement to rent the farm and/or to apply the deposit of $600, towards rent at the rate of $25, per month or at all. (f) The Claimant never offered the Defendant a further sum of $80, in November 2005 but paid an additional sum of $20, to the Defendant on (g) The Claimant has been operating the farm to date save for the period September to December 2006 when she was wrongly evicted by the Defendant. LAW 38. Section 4 (1) of the Conveyancing and Law of Property Act Chap. 27 No. 12 provides that no action may be brought upon any contract for the sale of land unless the agreement or some memorandum or note thereof is in writing and signed by the party to be charged. And subsection (2) provides, inter alia, that the section does not affect the law relating to part performance. 13

14 39. In order to be sufficiently certain and enforceable the written contract document or other memorandum must define the parties, define the property and the interest in the property being disposed of and show the purchase price or the agreed means of determining the purchase price - Halsbury s Laws of England 4 th Edition 1999 Reissue Vol. 42 Paragraphs 34 and It is not disputed that there is no written agreement signed by the parties as required by the statute. The Claimant is relying on the doctrine of part performance and the Defendant has not challenged this, but maintains that the contract for the sale of the farm was converted into a rental agreement. This Court has already made a finding against the Defendant on this issue. 41. In order to invoke the doctrine of part performance, Brooks J. set out the following criteria in Knight & Ors v Bastien H. C. A of 1985 at pages 13-14: (a) There must be a contract for which the Court has jurisdiction to grant specific performance. (b) Acts of part performance relied on must be by the person relying on the same. (c) The Plaintiff (here the Defendant) (sic) must have altered his position on the faith of the alleged contract. (d) The party must satisfy the Court of his act of part performance upon proof of which he will be allowed to give parol evidence of an agreement that would otherwise require written evidence. (e) The act of part performance must of itself on a balance of probability, establish the existence of the oral contract, which act of part performance must be consistent with the contract alleged e.g., entry by the purchaser into possession with the vendor s consent is a sufficient act of part performance, but simply remaining in possession is 14

15 not. 42. Once part performance is proved the plaintiff can give parol evidence of the agreement. This was the Court s position in Steadman v Steadman [1974] 2 All ER 977 HL per Lord Reid at page 980: You must first look at the alleged acts of part performance to see whether they prove that there must have been a contract and it is only if they do so prove that you can bring in the oral contract. 43. In Joefield & Or v Connell H. C. A. No. 12/1975, cited by counsel for the Claimant, Collymore J at page 3 found that the plaintiff s payment of a deposit, entry into possession and construction of a house on the land were sufficient acts of part performance. In Brennan v Bolton (1842) 2 Dr. & War. 349 (cited in Chitty on Contracts 29 th Edition paragraph 4-048) it was held that expenditure on a farm in the ordinary course of husbandry will not suffice. However, expenditure on such things as alterations, new buildings and repairs will entitle the tenant to a decree according to Broughton v Snook [1938] I All ER The deposit was paid in June The Claimant entered into possession shortly thereafter and carried out substantial repairs and renovations. In crossexamination Paul confirmed that the farm was not in a very good state when he first saw it and that the Claimant had done extensive works to improve the farm and make it fully operational. Heavy weather was made of the fact that Selwyn gave no evidence of the condition of the farm. It is to be noted that he was not cross-examined on this aspect either and that there was sufficient other evidence for the Court to make a finding on this issue. This Court holds that the aforementioned acts of the Claimant were sufficient acts of part performance and parol evidence of the terms of the contract can be given. 15

16 45. The parol evidence of the terms of the contract must be unequivocal. Where one or more of the material terms of an alleged contract cannot be determined, either by interpretation or as being of a kind which the law will supply, there is no contract, even though there has been an act of part performance: Stimson v Gray [1929] I Ch. 629 at page In CCB Holdings Limited v Sylvia Gopaul CV the Claimant sought specific performance of a written agreement for the sale of a ten-acre parcel of land in Diego Martin. The Claimant had been let into possession and over the period of a year had paid the Defendant the sum of $460, towards the purchase of the property. In the written agreement signed by the parties the relevant clause stated: 3. Price The purchase price for the property shall be MILLION DOLLARS. The Defendant testified that she wanted $5 million for the land but there was no conclusive agreement on this issue. The Claimant argued that the court could imply the purchase price for the land as $5 Million based on all the facts surrounding the written agreement for sale. Justice Smith (at pages 7-8) held that the purchase price or the agreed method of ascertaining the same must be stated in the agreement and the court could not imply a reasonable or any price into a contract. The court concluded that in any case the facts did not favour such an implication because the parties at the time of sale were still negotiating and had unresolved issues such as survey plans, relocation of a squatter and planning approvals. The learned Judge also rejected the suggestion that the price could be ascertained as $4.6 million by calculating the amount of deposit of $460, as being ten percent of the purchase price. In the 16

17 result the court found that the agreement for sale was not enforceable because it failed either to state a price or to provide any agreed means for ascertaining the price to be paid for the land in question. 47. This Court has already dealt with the evidence on the issue of the purchase price at paragraph 34 above and found that the purchase price of the farm was not agreed by the parties nor was it ascertainable. 37. Indication of the price or other consideration. The contract must state the agreed consideration or the agreed means of ascertaining it. In the absence of such indication, the law will not imply a term that a sale is to be for a reasonable price Paragraph 37 Volume 42 Halsbury s Laws (above). 48. This Court therefore finds that the agreement for sale is not enforceable because it lacks an essential ingredient of a contract for the sale of land because there is no agreed price nor any agreed means of ascertaining the price to be paid for the subject land. I find therefore that the contract is void. RELIEF 49. The Claimant is seeking a refund of the entire deposit ($620,000.00) and section 7 (2) of the Conveyancing and Law of Property Act which states: (2) Where the court refuses to grant specific performance of a contract, or in any action for the return of a deposit, the Court may if it thinks fit, order the repayment of any deposit. gives the Court the power to order a refund of the deposit. 50. The Claimant is also seeking loss of profits for September to December 2006 as well as a refund of the value of the works ($150,000.00) carried out by her. 17

18 The Claimant undertook renovations of the farm with the knowledge of the Defendant, who did not seriously dispute the value of these works. It may be unconscionable to allow the Defendant to derive a windfall from the increased market value of the farm in the circumstances. 51. For his part, the Defendant is seeking possession of the farm and arrears of rent by way of counterclaim. It is to be noted that the Defendant has had the use of most of the deposit since June 2004 while the Claimant has been operating the farm and deriving an income therefrom for the same period save for 3-4 months in late The Claimant testified that her income from the farm was in the region of $200, per grow-out. 52. Chitty on Contracts 25 th Edition paragraph 15 states: Void contracts. A void contract is strictly a contradiction in terms, because if an agreement is truly void it is not a contract; but the term is a useful one and well understood by lawyers. Properly speaking, a void contract should produce no legal effects whatsoever. Neither party should be able to sue the other on the contract. If goods have been delivered, they or their value should be recoverable by an action in tort, because the property will not pass. If money has been paid, it should be recoverable by an action in restitution, because the money was not due DECISION AND ORDERS The Claim and Counterclaim are dismissed. 2. This Court declares that the oral agreement made in or about June 2004 for sale of the farm situate at 34 Eastern Main Road, Wallerfield (the farm) by the Defendant to the Claimant is void and unenforceable as being made contrary to section 4 of the Conveyancing and Law of Property Act 18

19 Chapter 27 No The Defendant do repay to the Claimant the deposit of $620, on or before 31 st July, The Claimant do deliver to the Defendant possession of the farm on receipt of the payment at (2) above. 5. There will be no order as to costs save for the Order for costs made on the 15 th day of December, 2006 to be assessed on a date to be notified. Dated this 9 th day of May, 2008 Amrika Tiwary-Reddy JUDGE Aisha Peters-Francis (JRA) 19