Leonora Deslauriers v Guardian Assest Management Ltd

• Jurisdiction: Trinidad & Tobago
• Judge: C. Pemberton J.A.,V. Kokaram J.A.
• Judgment Date: 30 July 2021
• Neutral Citation: TT 2021 CA 34
• Docket Number: CA P094/2021
• Court: Court of Appeal (Trinidad and Tobago)

IN THE COURT OF APPEAL

Panel

Pemberton JA

Kokaram JA

CA P094/2021

CV2009-04381

Between

Leonora Deslauriers

Appellant/Judgment Debtor

and

Guardian Assest Management Limited

Respondent/Judgment Creditor

Appearances

For the Appellant: Mr I Benjamin SC and Ms D Springer instructed by Ms Z Haynes-Soo Hon

For the Respondent: Mr C Sieuchand, instructed by Ms S Indarsingh

C. Pemberton J.A.

INTRODUCTION

1 These parties share a protracted litigation history. In this appeal, this court is to determine if a sale of land by way of private treaty under execution of a judgment debt was in keeping with the orders of the Execution Court. The issues to be determined were whether the judgment creditor engaged in a sale to itself in violation of the court order and whether the sale was a bona fide sale at arm's length and for the best price.

2 After reading the submissions and authorities and hearing Counsel, we determined that the sale was in keeping with the court's order in that the judgment creditor did not bid on the sale and so therefore was not the purchaser, whether “ de facto” or “de jure”. We further determined that the sale was a bona fide sale, at arm's length and at the best available price. We disallowed the appeal for the reasons that follow.

3 Both Kokaram JA and I have recorded our judgments in this matter.

FACTS

4 On August 30 2013, the Respondent/ Judgment Creditor, Guardian Asset Management Limited (GAML 1), applied for an order for sale in relation to property owned by the Appellant/ Judgment Debtor, Leonora Deslauriers (LD). On October 27 2014, the trial judge granted the Order (2014 Order) on the following terms inter alia:

• (1) LD's interests in lot numbers 28 and 29 Victoria Square be sold (the

  property).

• (2) LD to deliver possession of the property to GAML.

• (3) Provisions for the tenants in occupation (not relevant to this appeal).

• (4) The conduct of the said sale be committed to GAML's attorney-at-law.

• (5) Each and/or all of the parties are permitted to bid at the sale with the exception of GAML.

• (6) The property to be advertised for sale once per week for two (2) weeks in a daily newspaper in Trinidad and Tobago.

• (7) The reserve price for the property was fixed at $16,000,000.00.

• (8) GAML to account for all the costs, charges and expenses of such a sale and lodge said account with the Registrar of the Supreme Court.

• (9) GAML to pay costs of application

• (10) Liberty to apply.

• (11) Stay of execution of sixty (60) days.

5 GAML did not enter into possession until March 20 2018. 2 The property was first put up for sale by public auction on May 17 2018. 3 Although five (5) bids were received, none of them resulted in a sale.

6 On January 31 2019, the trial judge made an additional Order (the 2019 Order). The 2019 order chronicled that all attempts at selling the property pursuant to the 2014 Order failed, and further ordered inter alia:

• (1) There be a sale of LD's interests in the property, committed to GAML's attorney-at-law pursuant to section 38 of the Remedies for Creditors Act ( ROCA) on the following conditions:

  A. The property is to be sold by public auction in the first instance

  failing which the property is to be sold by private treaty.

  • i. GAML to advertise the property for sale by auction or private treaty once per week for two (2) weeks prior to the sale.

  • ii. GAML to commission and obtain an updated value of the property prior to the advertisement.

  • iii. The updated value to be fixed as the reserved minimum price at which the property could be sold at auction or private treaty.

  • iv. If GAML wished to set a different reserve price, it must seek the court's approval before doing so.

  • v. Upon completion of the sale, the Registrar of the Supreme Court empowered to execute and deliver a conveyance to the purchaser without further order pursuant to the powers vested in the Registrar pursuant to section 38 of the ROCA.

7 In compliance, on March 25 2019, there was another public auction at a higher reserve price of $19.5 mn. This price was set based on the updated valuation received by GAML. However, GAML received no bids at this venture. 4 The property was then advertised for sale by private treaty. The advertisement invited bidders to submit sealed bids to the offices of GAML's attorney by April 26 2019. GAML received five (5) bids. Two (2) were above the minimum reserve price. However, of the five (5) bids received, none bore fruit. 5

8 The property was further advertised for sale by private treaty during the period May 23 to 29 2019 and again on June 5 2019. GAML received four (4) bids. Although invited to, the highest bidder did not pursue the sale. GAML considered and entered into an agreement for sale with the second highest

bidder. However, LD objected to the sale. The purchaser withdrew before the trial judge determined the matter. 6

9 In 2020, GAML once again attempted to sell the property by private treaty. Of the three bids received, the Trustees of the Guardian Defined Pension Benefit Fund (the Trustees) were the sole bidders that were in line with the minimum reserve price.

10 On September 29 2020, LD through her Attorney-at-Law objected to the sale on the ground that the GAML engaged in improper conduct in that it sold the property to the Trustees of the Fund created for the benefit of the employees of Guardian Holdings Limited (GHL) and the employees of its subsidiaries including GAML. 7 Accordingly, the sale was not at arm's length, and was therefore, contrary to sections 55 and 56 of the ROCA, Part 55 of the Civil Proceedings Rules 1998, as amended (CPR) and paragraph 5 of the court's 2014 Order. This was the second time that GAML attempted to sell the property to an entity associated with GHL. 8 LD also objected to the sale on the ground that GAML failed to report of the steps taken to obtain the best price possible, that is, a price in excess of the reserve price, from an unconnected party. 9 GAML and its attorneys-at-law followed the same process to secure the reserve price, and that this could not but bear different fruit. LD proposed that the course that GAML ought to have followed was to secure the services of real estate agents. Such a course would have yielded success in securing the best possible price. It is noteworthy that LD did not present any concrete evidence to buttress this proposed course of action.

11 In its response, GAML, through its Attorney-at-Law set out the protracted litigious history between the parties and the steps that GAML took to secure the sale of the property in conformity with the trial judge's orders. 10 GAML also asserted that DL's allegation that it engaged in self-dealing was unsubstantiated. 11 GAML averred 12 that prior to accepting the Trustees' bid, and to ensure that a sale to the Trustees would not violate clause 5 of the 2014 Order, it sent a letter dated March 10 2020 to the Trustees seeking clarification regarding the identity of the Fund and its possible connection to GAML. 13 By letter dated March 23 2020, the Trustees clarified who they were. 14 Satisfied that such a sale would not violate clause 5 of the said order, GAML's attorneys prepared an agreement for sale and the parties executed it on July 3 2020. 15 On July 6 2020, GAML filed its Report on the ‘ Result of the Sale of Situate at Lots 28 & 29 Victoria Square, Port of Spain’ (the ‘Report on the Sale’) 16 in compliance with the ‘forthwith’ requirement of section 55 of the ROCA. The Registrar screened the Report on September 18 2020.

12 GAML also relied on affidavit evidence provided by GHL's Corporate Secretary, Richard Avey. Mr Avey averred that GAML is the only legal entity precluded from bidding at the sale. 17 He explained the connections between GHL and the Trustees of the Fund and averred that GAML operates at arm's length from the Fund and the Trustees of the Fund. 18

THE TRIAL JUDGE'S FINDINGS

13 The trial judge found that:

As a result, the trial judge confirmed the sale.

• a. There was a relationship between GAML and the Trustees of the Fund.

• b. Therefore, GAML bore the burden of showing that the transaction was made in good faith, and that the potential conflict of interest did not operate to disadvantage GAML's duty to secure the best price reasonably obtainable.

• c. GAML kept the court informed of all information relevant to the sale, and all transactions appeared to have been at arm's length in an effort to secure the best price possible.

• d. GAML discharged its burden and satisfied the court that GAML acted in good faith and obtained the best price that it reasonably could in the present circumstances.

GROUNDS OF APPEAL

14 LD appealed the trial judge's findings on the following grounds: 19

These were findings which no reasonable tribunal, properly directing itself on the relevant questions of law, could have reached and in making these findings, the Learned Judge misdirected himself as to the applicable law; and which findings were not supported by and/or could not reasonably be drawn from the evidence and/or were so unreasonable that no reasonable court could have made these findings.

• i. The Learned Judge erred in failing to construe section 56 of ROCA in its statutory context, properly or at all and erred in failing to consider the proposed sale against the requirements of sections 55 to 57 of ROCA;

• ii. The Learned Judge, having rightly concluded, that the Trustees and [GAML] were inextricably connected, erred in failing to conclude that the proposed sale was contrary to the substance of his own previous Orders dated 27th October 2014, 27 ^th September 2018 and 31st January 2019 which expressly prohibited [GAML] from bidding;

• iii. The Learned Judge, having rightly concluded, that the Trustees and [GAML] were inextricably connected erred in failing to conclude that the proposed sale was contrary to section 56 of ROCA;

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