Maharaj v Neemah et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Henderson, J. |
| Judgment Date | 10 December 2009 |
| Neutral Citation | TT 2009 HC 306 |
| Docket Number | S No. 1649 of 2001 |
| Court | High Court (Trinidad and Tobago) |
| Date | 10 December 2009 |
High Court
Henderson, J.
S No. 1649 of 2001
Mr. A. Ashraph for the plaintiff.
Mr. H. Ramnath for the defendants.
Real property - Agreement for sale — Validity — Absence of independent legal and advice.
In these proceedings, the plaintiff seeks, inter alia, specific performance of a written agreement dated 21st November, 1997 for the sale of land situate at 50 Circular Road, San Fernando (hereinafter referred to as “the property”). The first named defendant is the daughter and executrix of the Estate of Robert Neemah, (“the Vendor”) who died on 22nd November, 1997. The second named defendant is the son of the Vendor and the beneficiary of the subject property pursuant to the Will of the Vendor dated 17th November, 1997. On 3rd April, 2009, I dismissed the plaintiff's action for specific performance and ordered the plaintiff to pay the defendant's cost certified fit for counsel to be taxed in default of agreement. I said then that I would give my written decision. I do so now.
The plaintiff (by his Statement of Claim) contends that:
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(a) by an agreement in writing dated the 21st November, 1997 made between the plaintiff and the Vendor, it was agreed that the plaintiff would buy and the Vendor would sell the property at the price of One hundred thousand dollars ($100,000.00).
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(b) the Vendor died on the 22nd November, 1997 leaving a Will dated 17th November, 1997 in which he purported to devise the property to the second defendant;
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(c) the first defendant obtained a Grant of Probate of the Vendor's Will;
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(d) subsequent to the Vendor's death, the first defendant agreed that upon obtaining the Grant of Probate and upon receipt of the purchase price of One hundred thousand dollars ($100,000.00), she would convey the property to the plaintiff;
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(e) the first defendant was bound by the agreement;
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(f) on the 9th May, 2000, by Deed of Assent number 10903 of 2000 (“Deed of Assent”) the first defendant as the Executrix, purported to convey the property to the second defendant as a beneficiary under the Will;
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(g) the Deed of Assent is null, void and of no effect;
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(h) the plaintiff as a businessman and real estate agent has suffered loss and damages.
In its amended Defence, the defendants inter alia;
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(i) admits execution of an agreement on 21st November, 1997 but; contends that at the time of the transaction, and in particular on the date of its execution (which took place in the Vendor's bedroom), the Vendor who died the following day was not of sound mind, memory and understanding, was feeble and in failing health and that the agreement was executed without his knowledge or his appreciating its contents.
In particular the defendants pleaded, inter alia;
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(a) the Vendor's considerable age and condition robbed him of the requisite capacity;
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(b) the Vendor had undergone two (2) operations, was bedridden and unable to communicate fluently;
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(c) the consideration was a gross undervalue of the prevailing market value
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of the property and that the price was inequitable and unconscionable;
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(d) the Vendor executed the agreement without any separate or independent legal advice;
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(ii) that no consideration existed in the agreement, as the deposit was held by the attorney at law and not given to the Vendor notwithstanding Clause 3 of the agreement;
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(iii) maintained that the Vendor's signature was not placed voluntarily and of his own free will;
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(iv) that while discussions took place with the plaintiff, no agreement was made or confirmed for the sale of the property for one hundred thousand dollars ($100,000.00);
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(v) that the Vendor knew the plaintiff from previous dealings and that the plaintiff was in a position of influence and dominance, which he exercised over the Vendor;
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(vi) (a) that while the second defendant was present when the agreement was executed, he denied negotiating with the plaintiff for the sale of land and by reason of his understanding could not comprehend the nature of this transaction;
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(b) the second defendant admits to being present when the agreement was executed but denies negotiating with the plaintiff for the sale of the property, the first defendant was unaware of any negotiations between the second defendant and the plaintiff.
In his Reply, the plaintiff joined issue with the defendants on their defence and further contended that:
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(a) (i) the Vendor understood the nature of the agreement
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(ii) that the consideration of one hundred thousand dollars was not an undervalue;
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(iii) the agreement was binding.
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(b) the Vendor in executing the said agreement, acted freely and fully of his own volition and in the exercise of his free independent will with full knowledge and due consideration of what he was doing;
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(i) that the deposit of ten thousand dollars ($10,000) was held in escrow by Mr. Gopaul, Attorney-at-Law pending the verification of the title and that the Vendor died before such verification. The deposit “became payable to the Legal Personal Representative upon the obtaining of the requisite grant;”
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(ii) upon the death of the Vendor, the first defendant was informed of the said agreement and offered the deposit upon the first defendant obtaining the requisite grant;
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(iii) the first defendant initially accepted the agreement, but subsequently purported to deny it and refused the payment of the purchase price and deposit, and
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(iv) the second defendant accepted the agreement and upon being advised that he was not entitled to the proceeds of the sale, purported to deny the validity of the agreement and refused payment of the purchase price.
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The following issues arise from the pleadings:
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(1) Whether the agreement made was a valid agreement having regard to:
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(a) the capacity of the Vendor;
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(b) the absence of separate and/or independent legal advice;
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(c) the purchase price and whether this was a gross under value of the property;
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(d) the payment by the purchaser to the purchaser's Attorney at Law, of the deposit.
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(2) Whether the equitable remedy of specific performance ought to be granted.
The plaintiff and Mr. Wesley Gopaul, Attorney at Law (who settled the statement of claim), testified on his behalf. Both the defendants testified in opposition. The bundle of documents entitled “plaintiff's unagreed Bundle of Documents” were subsequently agreed and by consent admitted into evidence as an agreed bundle.
Mr. Wesley Gopaul is an attorney at law having a conveyance practice since 1985. He knew the Vendor having done a conveyance between the Vendor and the plaintiff on the 17th March, 1997 with respect to a parcel of land at Phillipine. Sometime in November, 1997, the plaintiff came to him and told him that the Vendor agreed to sell him the property for the sum of one hundred thousand dollars ($100,000.00). The plaintiff gave him the Vendor's title deed and instructions to prepare a sale agreement, which he did.
On Mr. Gopaul's instructions a member of staff from his office contacted the plaintiff, requesting that the Vendor attend his office to sign the agreement. Instead and at the Vendor's request, arrangements were made for both the plaintiff and Mr. Gopaul to attend his home to have the agreement signed.
On 21st November, 1997 during his lunch break, Mr. Gopaul, together with the plaintiff, went to the home of the Vendor where they were met by the second defendant. They were taken to a room where Mr. Gopaul saw the Vendor lying on a bed. The Vendor sat up and had a conversation with Mr. Gopaul recalling the details of the sale of the land in Phillipine. The Vendor appeared ill but conversed in a normal, coherent fashion appearing fully to understand everything.
Mr. Gopaul told the Vendor that the plaintiff informed him that he had an agreement with the plaintiff to sell him the property. The Vendor confirmed this and the selling price of one hundred thousand dollars with a ten percent deposit. Mr. Gopaul said: “Mr. Maharaj had indicated to me that the deposit was to be held in escrow and I explained to him what this meant. He confirmed that he had such an arrangement with Mr. Maharaj. When I explained to him that the completion was to be within three months, he told me that Mr. Maharaj told him that he would pay the full sum as soon as the searches were completed. I then asked Mr. Maharaj if this was so and he confirmed this.” [Paragraph 5 of the witness statement.]
Mr. Gopaul then had both the Vendor and plaintiff sign the agreement which he witnessed. He stated that the second defendant was present throughout the transaction.
Sometime after, the plaintiff informed him that the Vendor had died. He informed the plaintiff that nothing further could be done until a Legal Personal Representative was appointed. Sometime in early 1998, the second defendant informed Mr. Gopaul of the Vendor's death and enquired when the transaction would be completed. When told by Mr. Gopaul, that he must await the appointment of a Legal Personal Representative, the second defendant then informed Mr. Gopaul that the first defendant was the executrix of his father's estate and that he was the beneficiary of the property under the Vendor's Will. He was of the view that since the land was left to him, he was entitled to the proceeds. When informed that he was not so entitled he appeared disappointed and left abruptly.
On the 16th February, 1998, Mr. Gopaul wrote the first defendant requesting that he be informed when she obtains the Grant of Probate so that steps could be taken to complete the sale. He received no response from the first defendant and on the 4th May, 1998 received a letter in response from a firm of attorneys at...
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