Intercommercial Bank Ltd v Global Dynamics Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | Mendonca, J.A. |
| Judgment Date | 29 May 2013 |
| Neutral Citation | TT 2013 CA 52 |
| Docket Number | Civil Appeal 35 of 2013 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 29 May 2013 |
Court of Appeal
Mendonca, J.A.; Jamadar, J.A.; Bereaux, J.A.
Civil Appeal 35 of 2013
Mr. P. Deonarine and Ms. S. Narine appeared on behalf of the appellant
Mr. D. Mendes, S.C. and Mr. M. Quamina appeared on behalf of the respondent
Civil practice and procedure - Appeal — Judge erred as there was no serious issue to be tried — Whether it was found that if the facts as alleged by the respondent were proved it cannot be said that the respondent's claim has no realistic prospect of success — Appeal dismissed.
By claim form issued on January 22 nd, 2013 the respondent claims against the appellant specific performance of an agreement in writing dated January 4th, 2013 for the sale to it by the appellant of certain lands comprising 51 acres (the lands). The respondent also claims in the alternative damages for breach of the agreement and consequential relief including an injunction restraining the appellant from selling or otherwise disposing of the lands to anyone other than to the respondent.
On the same day that the claim form was filed the respondent applied for an interim injunction restraining the appellant from disposing of the lands pending the hearing and determination of the claim. The application was heard before Seepersad, J. In his submissions before the Judge, Counsel for the respondent, in arguing against the grant of the interim injunction, submitted, inter alia, that the respondent's claim disclosed no or no reasonable cause of action and should be struck out. The Judge refused the application for the injunction on the basis that there was a greater risk of injustice if the injunction were granted than if it were refused. He was however of the view that there was a serious issue to be tried although he did not think there was a “high degree of assurance” that the respondent would succeed at the trial.
The appellant now appeals from the finding of the Judge that there is a serious issue to be tried. The appellant maintains the position that it took before the Judge that the claim should be struck out.
It was not disputed that in order to succeed the appellant must establish that the respondent has no realistic prospect of success on the claim. It was also common ground that in deciding that question in the circumstances of this case, the Court should proceed on the basis that every factual allegation c
The respondent filed two affidavits. The second affidavit was in reply to two affidavits filed on behalf of the appellant. From the affidavits it is not disputed that the appellant is a financial institution and in the course of its business the lands were mortgaged to it by Green Valley Housing Development Company Limited. The mortgagor subsequently defaulted in the payments due under the mortgage and the appellant in exercise of its power of sale offered the lands for sale. By letter dated November 28th, 2012 the respondent made an offer to purchase the lands at the price of $16,000,000. By letter dated December 12th, 2012 the appellant accepted the offer subject to the execution of an agreement for sale. The letter outlined certain terms that were applicable to the sale and these included a term that a deposit of $1,600,000 was payable upon signing of the agreement for sale, the terms of which must be acceptable to the appellant. The letter concluded:
“The above proposed terms and conditions do not constitute a legal commitment by the [appellant]. The [appellant] reserves the right to revoke this arrangement where there has been a material change of circumstances or breach of the within terms and conditions.
If the above mentioned conditions are accepted please sign the below and return to the [appellant] within seven days along with a deposit of $1,600,000…. “
There are material areas of dispute between the parties as to what occurred thereafter. In as much as this Court is proceeding on the basis that the respondent's allegations are true, I will sketch the background from the allegations made by the respondent in its affidavits.
On December 21st, 2012 Mr. Victor Jattan, a director of the respondent company and Mr. Hirschman, also a director of the respondent, met with Mr. Boodhai, Mr. Mohan and Ms. Ferguson, representatives of the appellant. At that meeting the appellant's representatives were provided with proof that the respondent had the necessary financial resources to fund the acquisition of the lands. The proof was in the form of documentary evidence which consisted of, inter alia, an agreement for the sale of a property which belonged to a company called Transstar General Contractors Limited (Transstar) of which Mr. Jattan was also a director and the sole shareholder. Transstar liad entered into an agreement to sell certain real estate belonging to it at a price of $22,000,000. A deposit of $2,200,000. was payable under the agreement and Mr. Jattan indicated that it was the intention to use that deposit to fund the purchase of the lands. The deposit of $2,200,000. was in fact paid by the purchaser to Hobsons, a firm of attorneys-at-law, as stake holder. Mr. Jattan had in his possession a copy of the cheque payable to Hobsons as well as a receipt issued by Hobsons for the cheque. Copies of all the documents were provided to the appellant's representatives. Mr. Jattan further explained to the appellant's representatives that he had not yet accepted the cheque from Hobsons as he was in the process of negotiating an extension of time to finalize the Transstar sale. In the circumstances it was agreed between the parties that the seven-day period set out in the appellant's letter of December 12th, 2012, for the payment of the deposit on the purchase of the lands would be waived. Mr. Jattan further stated:
“We agreed further that when I was in receipt of the deposit cheque for the sum of $2,200,000. I would open a bank account with the [appellant] in [Transstar's] name and deposit the cheque in that account. The deposit for the purchase of the [lands] would be taken out of those funds. “
At the conclusion of the meeting Mr. Jattan and Mr. Hirschman were told by the appellant's representatives that they were satisfied with the proof as to the availability of the necessary resources to fund the transaction and that they would send a draft agreement to Mr. Jattan and Mr. Hirschman for their consideration. Mr. Jattan and Mr. Hirschman then proceeded to sign the letter of December 12th, 2012.
During the period December 21st, 2012 and January 4th, 2013 Mr. Jattan kept the appellant updated as to the progress in the Transstar transaction. He indicated to the appellant that he was delaying collecting the deposit cheque from Hobsons until he obtained the extension of time to complete the Transstar transaction. The appellant expressed no concern about the delay.
On December 28th, 2012 Mr. Jattan was sent a copy of the draft agreement for sale. On January 3rd, 2013 Mr. Jattan collected a copy of the cheque for $2,200,000, which by then was made payable to Transstar.
On January 4th, 2013 Mr. Jattan and Mr. Hirchman met again with the appellant's representatives. He gave them a copy of the cheque payable to Transstar. He then stated:
“I explained again the reason why I did not have the actual cheque and promised that as soon as I got the extension I would collect the cheque and bring it to deposit in an account in the name of Transstar as previously agreed The [appellant's] representatives agreed to my proposed course of action. No fixed date was set for my return to the [appellant] to pay the deposit. Mr. Hirschman and I then signed the agreement for sale on behalf of the [respondent] and the agreement was then signed on behalf of the [appellant] but I don't recall exactly who signed for the [appellant].
Shortly thereafter, according to Mr. Jattan, the purchaser in the Transstar transaction agreed to the extension of time for the completion of the sale of the property. The documentation in that transaction was finalized on January 9th, 2013 when Mr. Jattan collected the actual cheque from Hobsons and thereafter proceeded to the appellant.
Mr. Jattan arrived at the appellant's premises on the afternoon of January 9th, 2013 and met with Mr. Mohan and Mr. Boodhai. To his shock and horror he was informed that the appellant had accepted a deposit from another purchaser at 9:00 a.m. on that date for a higher price and that the appellant would not proceed with the agreement. Mr. Jattan states:
“I expressed my grave disappointment that no one called to warn me of what might happen. I became very upset. I was shown a letter dated 9 January 2013 from the [appellant] to me that was lying on the conference table. It spoke about my being given until 8 January 2013 to make the deposit but that I would be given until the close of business on 9 January 2013 to do so. At no time was I told that I had until 8 January 2013 to pay the deposit… I pointed out that the letter was unsigned. Both gentlemen then proceeded to sign the said letter.”
Mr. Jattan further stated:
“But for the fact that the [appellant] informed me simultaneously with the delivery of the letter dated 9 January 2013 that it had agreed to sell the property to someone else, I was in a position to provide the deposit on 9 January 2013.”
Although Mr. Jattan alleges that the appellant signed the agreement for sale (which the appellant denies), he did not exhibit to any of his affidavits a copy of the signed agreement for sale. For reasons set out in his affidavits, which need out be gone into, he stated that the signed agreement is in the possession of the appellant. He however exhibited a copy of the draft agreement which was sent to him by the appellant to which he stated no physical or written changes were made. The draft agreement made...
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