Nerisa Garrette v Scotiabank Trinidad and Tobago Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | Mr. Justice Frank Seepersad |
| Judgment Date | 06 December 2021 |
| Neutral Citation | TT 2021 HC 268 |
| Docket Number | Claim No. CV 2019-03665 |
| Court | High Court (Trinidad and Tobago) |
IN THE HIGH COURT OF JUSTICE
the Honourable Mr. Justice Frank Seepersad
Claim No. CV 2019-03665
1. Mr C. Neptune, Mr A. Neptune and Mr R. Eccles Attorneys-at-law for the Claimant.
2. Mr F. Hosein and Ms T. Rowley, Attorneys-at-law for the First Defendant.
3. The Second Defendant being unrepresented.
4. Mr C. Sieuchand and Ms S. David-Longe, Attorneys-at-law for the Third Defendant.
5. Mr F. Mohammed, Attorney-at-law for the Fourth Defendant.
Before the Court for its determination is the Claimant's Claim Form and Statement of Case filed on 9 September 2019 whereby the Claimant sought the following reliefs against the Defendants:
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a. Recovery of the sums (inclusive of interest paid) expended pursuant to the purchase of the said parcel of land;
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b. Rescission of the agreement for sale and the deed of conveyance, repayment of all the sums paid under same;
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c. Recovery of all legal fees expended on the purchase of the subject parcel of land;
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d. Recovery of all monies reasonably expended pursuant to the obtaining of buildings approvals and/or approval of building plans for the subject parcel of land;
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e. Recovery of all monies expended on the maintenance of the subject parcel of land;
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f. Damages for negligence/ breach of contract;
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g. Damages for fraudulent misrepresentation;
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h. Interest at such rate and for the period as to the Court may deem just;
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i. Costs;
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j. Such further and other relief as the Court may deem just.
Around August 2015 the Claimant was at the First Defendant's Chaguanas branch where she saw an advertisement for sale of land on its notice board. The First Defendant's loans officer directed her to the vendor, the Fourth Defendant, and she contacted the vendor concerning the land and conveyed her intention to build her house. The land was located on Dynasty Boulevard, Longdenville, Chaguanas and a site visit was conducted with the Fourth Defendant.
The Claimant was subsequently taken to the Fourth Defendant's attorney's office to execute an agreement for sale and it is her case that the Fourth Defendant stated that he had all relevant approvals for the said parcel of land with the exception of the WASA Clearance certificate. The agreement for sale was executed and reflected, inter alia, that the purchase price was $340,000.00.
The Claimant made arrangements with the Bank for the purchase of the parcel of land following which she was directed by the First Defendant to the offices of the Third Defendant as they were the attorneys on the Bank's panel.
She attended the Third Defendant's office, signed instructions to act, paid fees for legal services and on 30 September 2015 she executed the deed of conveyance and deed of mortgage which said deeds were prepared by the Second Defendant.
Clause 4(c) of the Agreement for Sale provided as follows: “Subject to the Vendor providing the Purchaser with proof of residential approval from the Town and Country Planning Division and/or relevant Government Authorities”.
In March 2016 the Claimant expended approximately $5,000.00 for the preparation of a house/building plan for the construction of her house and submitted same to the Couva/Tabaquite Regional Corporation (the regional corporation) for review and approval. On the 11 May 2016 she received correspondence from the Regional Corporation that the requested approval was withheld because the land belonged to a larger parcel which did not have the requisite approval for sub-division.
Subsequent to the purchase, the Claimant spent on average $500.00 monthly for maintenance and upkeep of the land and she is unable to build her home although she spends the monthly sum of $2,569.63 to facilitate her mortgage with the First Defendant.
The Claimant also pleaded that in 2006 the Fourth Defendant applied to the regional corporation for approval to develop the site but same was not granted. She further outlined that she also made an application for final planning permission for the erection of a single unit but was unsuccessful.
The Claimant subsequently granted the Second Defendant authorisation for her to liaise with the Assistant Director of TCPD to obtain information, documents and to oversee any other approvals relating to the application for final planning permission so as to enable her to erect a home.
In its defence filed on 11 December 2019 this Defendant neither admitted nor denied, inter alia, the assertion that the Claimant attended its Chaguanas branch and had sight of an advertisement for the sale of the subject land.
The First Defendant accepted that Deeds of Conveyance and Mortgage were made between the Claimant and the Fourth Defendant on 30 September 2015.
In addressing the particulars of negligence as pleaded by the Claimant, the First Defendant stated that it did not advertise the parcel of land but it permitted members of the public to post on the notice board at its branch subject to the terms and conditions which included that persons placing advertisements were responsible to ensure the information was accurate.
The First Defendant pleaded that the Claimant acted on the advice of skilled professionals and was not induced to purchase nor did she rely on representations by the First Defendant. Furthermore, the First Defendant denied that it knew that the intended purpose of the mortgage loan was for the construction of a house. The Bank emphasised that it never acted as the Claimant's advisor regarding the purchase of the parcel of land and that it was not in a fiduciary relationship with the Claimant. The First Defendant denied that its recommendation of the Third Defendant amounted to a representation as to the suitability of the parcel of land or to the existence of the requisite approvals.
The Second and Third Defendants pleaded that there was correspondence between themselves and the First Defendant in relation to the conduct of searches with respect to the parcel of land and for the preparation of the deeds of mortgage and conveyance. The Third Defendant sought instructions from the First Defendant as to whether the land was approved by the relevant authorities and in response, the First Defendant presented, inter alia, the letter from Acting Director of TCPD dated 28 March 2014 which informed the Fourth Defendant, inter alia, the property was located in an area allocated for residential purposes, it fell within an approved layout and before the commencement of any development an application for development of land was to be submitted to TCPD and approved.
The Claimant attended their office for the first time on 30 September and at no time prior to execution of the deeds of conveyance and mortgage, did they make any representations to the Claimant about the parcel of land.
These defendants pointed out that by agreement for sale dated 8 September 2015 it was agreed that the land was being sold subject to the Fourth Defendant providing the Claimant with proof of residential approval from TCPD and/or other relevant Government Authorities.
On 10 November 2016 an officer of the First Defendant contacted the Second Defendant and informed her that the Claimant encountered problems with getting approval of her building plans. She was then presented with the notice of defects issued by the regional corporation.
As an act of good faith and though not having a duty of care towards the Claimant, the Second Defendant elected to assist the Claimant. By letter of 29 November 2016 the Second Defendant wrote to TCPD referring them to a 18 March 2015 letter and requested a status update on the approvals. A follow up letter was sent to the Senior State Counsel in Ministry of Planning and Sustainable Development.
The Second Defendant was subsequently informed that a letter of grant of planning permission was prepared in the Claimant's name in the care of Randy Teebenny.
The Second Defendant tried to get the said letter but was notified that she needed authorisation to receive same but the Claimant refused as she insisted that she had previously signed one in November 2016.
The Second Defendant, after the receipt of a pre-action protocol letter from the Claimant, was informed that the Claimant signed the letter of authorisation and the Second Defendant eventually obtained approvals from TCPD.
Subsequently and after requests by the Second Defendant concerning the approvals, and on 6 February 2018, the Second Defendant and another attorney from the Third Defendant met with representatives from the regional corporation which confirmed that the parcel of land formed part of a larger parcel which was not approved for sub-division and that consideration for approval would only be given if infrastructural works were completed to the regional corporation's satisfaction.
The Second and Third Defendant denied the existence of any retainer contract between the Claimant and themselves and advanced that at all material times they discharged their professional duties in accordance with the instructions provided.
In his Defence filed on 26 June 2020 the Fourth Defendant Vendor confirmed that the Claimant contacted him with respect to the parcel of land, they made a site visit to view same and subsequently an agreement for sale was prepared on 8 September 2015 in relation to the purchase of same. This defendant stated that the agreement was a standard agreement and there was no actual discussion in relation to Clause 4(c). He also denied that he told the Claimant that he had all approvals for...
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