Chan v Griffith

• Jurisdiction: Trinidad & Tobago
• Judge: Stollmeyer, J.
• Judgment Date: 14 July 1998
• Neutral Citation: TT 1998 HC 99
• Docket Number: No. Cv. 5099 of 1996
• Court: High Court (Trinidad and Tobago)
• Date: 14 July 1998

High Court

Stollymeyer, J.

No. Cv. 5099 of 1996

Chan

and

Griffith

Appearances:

Mr. C. George for the plaintiff

Dr. C. Seepersad for the defendant

Real property - Conveyance — Plaintiff sought a declaration that a deed of conveyance was void on the ground that it was a product of an unconscionable bargain between the plaintiff and the defendant — Court found for the plaintiff — Court held that defendant used her superior financial position to her advantage and the plaintiff's disadvantage.

Stollmeyer, J.

1 These proceedings relate to a property comprising 22,314 square feet of land, together with a dwelling house and certain out buildings thereon, situated at 7B Akal Trace, Santa Cruz, Trinidad which was conveyed by the plaintiff to the defendant by a Deed of Conveyance registered as No. 22039 of 1996 for a stated consideration of $150,000.00. By his re-amended writ and amended Statement of Claim the plaintiff sought several reliefs but, principally, a declaration that the Deed of Conveyance in question is null and void and should be set-aside on the ground that it was a product of an unconscionable bargain between the plaintiff and the defendant. A similar plea for a declaration that the plaintiff was induced to convey the said property to the defendant by and under her undue influence was abandoned but the plaintiff additionally sought what might be referred to as the usual other reliefs.

2 The defendant, by her re-amended defence and counterclaim denies the plaintiff's saying that the price of $154,000.00 was agreed between them at the plaintiff's request, and counterclaimed for a declaration that she is the owner in fee simple of the said property. A further claim for damages was abandoned at the trial during the course of closing submissions on behalf of the defendant.

3 The following findings of fact can be made from the evidence led during the course of the trial. The property in question (to which I will refer as “the Property”) is located some 150 yards to the west of Akal Trace, La Pastors, Santa Cruz, Trinidad to which there is access along an unnamed private road. The parcel of land is irregularly shaped with a road frontage of 40.45 m; the southern boundary is 37.29 m and the northern boundary is 84.22 m. The house standing on this parcel of land is 1,998 square feet with an additional carport shed of 703 square feet, a utility of shed of 463 square feet and an external of storeroom of 144 square feet.

4 The plaintiff bought the parcel of land from the National Commercial Bank of Trinidad and Tobago Limited in July 1993 for $45,000.00 as is evidenced by deed registered as No 12664 of 1993. At that time he had been living there for some years, having been given permission to do so by one Thomas Gaskin (for whom the plaintiff worked at that time), the father of the then owner, Cheryl Gaskin, and who had herself mortgaged the property to the National Commercial Bank of Trinidad and Tobago Limited in 1991 for the purpose of securing credit facilities and financial advances. The plaintiff had initially resided in a small board house on the property but had started to replace it with a more substantial structure which he started to construct himself and eventually got close to completing in 1996.

5 The plaintiff mortgaged the property to, it would appear, the National Commercial Bank of Trinidad and Tobago Limited and this mortgage was subsequent vested in First Citizens Bank Limited. I say “apparently” because no evidence was led in respect of either of these matters but they were accepted as factual by the attorneys in this matter. Regrettably, there is therefore no evidence before the court as to the sum secured by this mortgage, nor as to the terms of repayment, but it is accepted by both parties to the action that, at some time, the plaintiff failed to meet his obligations under that mortgage.

6 The plaintiff was a builder by trade and had been so occupied since 1977 or thereabouts, after he had left school at the level of Standard Five and had then worked for some years as a mechanic. From all appearances, he did fairly well for himself in his capacity as a builder over the years, acquiring not only the property but also a van as well as building up a business which employed several people.

7 At some time in 1993 or 1994 his eyesight began to give him trouble. Although the evidence does not make it clear as to when this first happened, he visited an eye specialist, Dr. Bruno Mitchell, for the first time in 1994 and then also consulted a Dr. Mahabir. He visited Dr. Frank Ramlackansingh, a General Practitioner, in early 1994 and was diagnosed as being a diabetic but, according to Dr. Ramlackansingh, the plaintiff made no mention to him on that occasion about anything being wrong with his eyesight and Dr. Ramlackansingh himself detected nothing. By 26th November, 1996, however, when he visited Dr. Ramlackansingh he had completely lost the sight in his right eye and was only partially sighted in his self-eye. Dr. Ramlackansingh's examination on that date revealed this and, further, that the sight in the left eye was only such that the plaintiff”. …could perceive light and perceive hand movements.”

8 In the meantime, and because of his failing sight, the plaintiff's activities as a builder had come to an end. Sometime in 1995, possibly between the middle of to late that year, he had started to default in paying his monthly installments of approximately $1,200.00 to the mortgagee, First Citizens Bank Limited, and by the beginning of November 1996 the balance outstanding an the loan secured by the mortgage was approximately $14,000.00. Mention might be made that reference was made both in evidence and by the attorneys to there being “arrears” on the mortgage loan. Given that the amount of $14,000.00 was paid to satisfy the plaintiff's indebtedness to the mortgagee in full, the word “balance” is more appropriate.

9 First Citizens Bank Ltd. had written to the plaintiff on several occasions about the state of the mortgage loan and in early 1996 retained Linden Scott & Associates Ltd. to carry out a valuation of the property. Mr. Linden Scott, who gave evidence on behalf of the defendant, visited the property together with an assistant and a Report dated 28th March 1996 which opined that the then current open market value of the property was $225,000.00 and that the minimum current forced sale value of the property was $200,000.00. At that time, First Citizens Bank Limited also wrote to the plaintiff saying that the property would be sold if the mortgage was not paid. The plaintiff was subsequently told by a Mr. Gomez, an officer of First Citizens Bank Limited, that the Bank would not sell the property if he, the plaintiff, could get a buyer. Despite this, it was not until September of 1996 that the plaintiff made any effort to sell the property. He retained one Duane Perry as his agent for the sale and Mr. Perry was to be paid a commission. A written agreement was subsequently entered into on 23rd September, 1996 between the plaintiff and Mr. Perry.

10 Duane Perry introduced the defendant to the plaintiff as a prospective purchase during the moth of September 1996. While the possible price for the property might have been mentioned or discussed, no agreement was stuck on that occasion and the defendant returned to England where she lived and worked, she having come to Trinidad ostensibly seeking to purchase what might be called a “winter home” for herself and her husband.

11 The defendant returned to Trinidad at the end of October and met with the plaintiff on 31st October. Thereafter, events moved apace. There were further discussions between the plaintiff and the defendant as a result of which it was agreed between that she would buy the property, although there is a divergence of opinion between them as to the price which was to be paid. The plaintiff visited First Citizens Bank Limited on October 31 and spoke with Mr. Gomez telling him what he proposed to do and learned from Mr. Gomez the amount required to pay off the mortgage loan in full. Contact was made with the defendant at her sister's house in Nehru Street St. James where she was staying and on 1st November the plaintiff, the defendant, the defendant's sister and brother met with Mr. Gomez. At the time of this meeting it appears clear that the parties had agreed to certain matters between them which were not then, nor are they now, in contention. They were that the plaintiff would pay off the mortgage loan by way of the defendant paying the required amount direct to the bank and deducting same from the purchase price to be paid, and the defendant would pay all the other expenses of the sale/purchase.

12 The sequence of events after they left the bank is less clear. Having reviewed the evidence of the plaintiff, the defendant and the attorney-at-law, Allan Mendonca, I have come to the conclusion that after leaving the bank the parties went first to the St. James Branch of Bank of Commerce Trinidad and Tobago Limited where the defendant purchased a draft for $14,000.00 for the purpose of paying off the outstanding amount due on the mortgage loan. They then proceeded to the offices of Messrs. De Nobriga Inniss & Company where they met with Mr. Mendonca and an agreement for the sale and purchase of the property (Exhibit “B”) was prepared. They then spent some time at the house of Mrs. Griffith's sister in St. James before returning to First Citizens Bank Ltd., to meet with Mr. Gomez at 2.00 o'clock that afternoon. While there, the amount of $14,000.00 was paid to First Citizens Bank Ltd, and the parties went their various ways, the defendant having taken the plaintiff back to 7B Akal Trace.

13 There are conflicting accounts as to the sequence of events on that day and, particularly, as to where and when the agreement was actually signed. Mr. Mendonca said...