Adrian David Ache v Rachael Cyrus
| Jurisdiction | Trinidad & Tobago |
| Judge | Boodoosingh JA,Allan Mendonça,Mark Mohammed,Ronnie Boodoosingh, JA |
| Judgment Date | 17 June 2022 |
| Neutral Citation | TT 2022 CA 025 |
| Docket Number | C.A. No. P 171 of 2017 |
| Court | Court of Appeal (Trinidad and Tobago) |
Allan Mendonça JA
Mark Mohammed JA
Ronnie Boodoosingh JA
C.A. No. P 171 of 2017
CV 2015 – 02452
THE REPUBLIC OF TRINIDAD AND TOBAGO
Mr Anthony Manwah instructed by Mr Abdul Hafeez Ali for the Appellant
Mrs Annabelle Sooklal for the Respondent
I have read the judgment of Boodoosingh JA and I agree with it.
Justice of Appeal
I too have read the judgment of Boodoosingh JA and I agree with it.
Justice of Appeal
Delivered by Ronnie Boodoosingh, JA
This case arises from a client – attorney-at-law relationship. Mr Adrian David Ache was the client and Ms Rachael Cyrus was his attorney. The dispute concerned the amount of fees payable by Mr Ache to Ms Cyrus for applying for and obtaining a grant of representation de bonis non for the estate of Mr Ache's mother, Olivia Ache. Mr Ache contended that the fees charged were unlawful, being excessive and unreasonable. Ms Cyrus responded that the fees were calculated in accordance with the law and practice. A trial was held before the High Court judge who gave a written judgment dismissing Mr Ache's claim and giving judgment to Ms Cyrus on her counterclaim for the balance of fees in the sum of $1,333,009.50 plus interest and prescribed costs.
According to Mr Ache's amended statement of case, about November or December 2012 he retained Ms Cyrus to obtain a grant de bonis non in respect of the estate of Olivia Ache. Ms Cyrus obtained the grant. Mr Ache contends that since the value of the estate stated in the amended application was $1,067,500.00 the legal fees under The Attorneys-at-Law (Remuneration) (Non-Contentious Business) Rules, 1997, Legal Profession Act, Chap. 90:03, Legal Notice 77 of 1997 (Legal Notice 77) ought to have been $15,875.00. By letter dated 17 July 2013, Ms Cyrus sent an invoice for legal fees for obtaining the grant in the sum of $1,429,450.00 and $1,125.00 for disbursements.
Included in the estate was a large parcel of undeveloped land. By a deed of assignment dated 9 September 2013, Mr Ache assigned 50% of the proceeds to be derived from the sale of individual plots of land of the said estate for the payment of the fees. Mr Ache, at the same time, executed a promissory note promising to pay the said sum to Ms Cyrus. Both the deed of assignment and promissory note were prepared by Ms Cyrus.
Mr Ache contended that the execution of these documents were procured by the undue influence of Ms Cyrus over him. As a result of the fiduciary relationship of attorney and client it was presumed she had influence over him. He contended that the transactions could not be readily explained by the relationship of the parties. He noted that Ms Cyrus prepared the deed, she was a party to it, she witnessed execution of it, and the fees charged were unreasonable and excessive. He said he saw the deed and promissory note for the first time on 9 September 2013, the day of execution. He relied on Ms Cyrus about the correctness of the fees, the nature of the deed and promissory note and he had no opportunity to consult with anyone before the execution. Ms Cyrus represented to him that the fees were the lawful and reasonable fees and she insisted that he execute these documents to secure the payment of her fees. He relied on and was induced by this representation. He alleged the fees were not the correct fees under Legal Notice 77 and were unreasonable. He also stated Ms Cyrus made the representation fraudulently because she either knew it was untrue or was reckless as to its truth.
Mr Ache said on 9 October 2013 he paid Ms Cyrus $125,000.00 as fees and on 21 October 2013 made a further payment of $10,000.00. By letter dated 10 December 2013 Mr Ache informed Ms Cyrus that the correct fee for the grant was $15,875.00, and that having already paid her $135,000.00, he called for the release of the deed of assignment and the repayment of the balance of his excess payment. By letter dated 20 December 2013, Ms Cyrus wrote to him making a distinction between the value of the estate for the purposes of the application for the grant and the value of the estate for the calculation of fees. Further she noted that “whenever property is involved, attorneys at law require valuation reports outlining the market value of the property in order to calculate legal fees”. On 26 February 2014, Ms Cyrus lodged a caveat under the Real Property Act, Chap 56:02 forbidding the registration of any change in ownership regarding the estate lands on the ground that she had an interest in the lands affected under the deed of assignment and promissory note. This caveat prevented the completion of 15 agreements for the sale of portions of the estate lands. By letter dated 15 December 2014 Ms Cyrus, through her attorney, demanded payment of $1,333,009.50 and costs of $1,500.00 under the promissory note. In consequence, Mr Ache claimed a declaration that the deed and promissory note be rescinded or set aside as having been procured by undue influence or alternatively by misrepresentation. He asked the deed and promissory note be delivered up to be cancelled. He also asked for a determination of the fees lawfully due to Ms Cyrus and the repayment of the difference between the fees due and what was paid. He asked for the caveat to be removed.
Ms Cyrus filed a defence and counterclaim. She said she agreed to provide legal services to Mr Ache after a meeting held in December 2012. She denied the fees were $15,875.00 but said the fees calculated in accordance with the Legal Profession Act and practice in this jurisdiction were $1,429,450.00 as set out in her fee note dated 17 July 2013. She accepted that she prepared and took execution of the deed and promissory note, but denied there was undue influence or misrepresentation. She noted that Mr Ache was experienced in business; he had experience in retaining attorneys; he had the advice and support of Susan Dorman, his assistant and real estate agent; Mr Ache requested he pay the legal fees by instalments from the proceeds of the sale of the lands after the grant was obtained; Mr Ache was given a copy of the draft deed on 25 July 2013; he was advised of the content and effect of it and was invited to read it carefully and consider it. Ms Cyrus said Mr Ache had the draft deed for 6 weeks before execution and he had the opportunity to consult any third party.
Ms Cyrus pleaded that the law and practice in this jurisdiction is to use the current market value of the estate to calculate legal fees for all applications for grants of probate and letters of administration including applications for grants de bonis non. She therefore denied she acted unlawfully or fraudulently. She further pleaded that the legal services were not limited to the grant de bonis non and registration of a company as stated in the statement of case, but also extended to conducting title searches, responding to attorneys, drafting letters to and meeting with statutory tenants, giving advice on various matters, and preparation of agreements for sale. The lodging of the caveat was not wrongful under the terms of the deed. Mr Ache had previously issued a cheque dated 9 February 2013 for the sum of $8,650.00 which was dishonoured by his bankers on two occasions. Ms Cyrus counterclaimed that the legal fees were to be paid within one year of the date of execution of the deed and promissory note. She claimed therefore that a balance of fees remained payable in the sum of $1,333,009.50 together with interest. The fee note attached stated a current market value of the estate as $142,425,000.00. It set out that “under the Wills and Probate Ordinance” calculation for estate matters were:
In consequence, the legal fees were calculated as $1,429,450.00 and other costs at $1,125, a total of $1,430,575.00.
| Value of Estate | Scale of Charges |
| (a) Not exceeding $10,000.00 | 5% of such value with a minimum fees of $500.00 |
| (b) Exceeding $10,000.00 and not exceeding $250,000.00 | 5% on the first 10,000.00 of such value and 3% on the excess beyond $10,000.00 |
| (c) Exceeding $250,000.00 | The same fee chargeable if the value on the Estate were $250,000.00 plus 1% on the excess beyond $250,000.00 |
In the defence to counterclaim Mr Ache denied that Ms Cyrus was retained to do legal work other than the grant and the company incorporation. The fees for the company incorporation were paid separately. He denied that the fees were as claimed by Ms Cyrus.
In a reply to the defence to counterclaim Ms Cyrus reiterated she was “instructed” to do other legal work. In consequence, she commissioned a title search and provided a title report. She prepared a draft inventory of what she believed to be the lands remaining in the estate.
The pleaded cases did not refer to any written retainer or signed written instructions provided by Mr Ache to Ms Cyrus. The retainer must, therefore, have been an oral one. Ms Cyrus did not plead the basis on which the current market value of the estate for the calculation of legal fees was determined to be $142,425,000.00. Ms Cyrus also did not plead that Mr Ache was advised to seek independent legal advice on the deed and promissory note but that he had the opportunity to do so.
Mr Ache and Ms Cyrus alone gave evidence. The evidence was generally consistent with the pleaded cases. Both sides developed their cases, however, and I will refer to additional aspects of their cases presented in the witness statements.
He gave evidence that when he retained Ms Cyrus in November/December 2012 he paid her a deposit of $3,000.00. The estate consisted of several pieces of real property. As his attorney he trusted her to look after his interest and to give him proper advice. She subsequently told him she had to put the value...
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