Pamela Parris Olivier v Tyrel Olivier

• Jurisdiction: Trinidad & Tobago
• Judge: Mr. Justice Westmin R.A. James
• Judgment Date: 23 January 2024
• Neutral Citation: TT 2024 HC 27
• Docket Number: Claim No: CV 2021-00494
• Court: High Court (Trinidad and Tobago)

Between

Pamela Parris Olivier

Claimant

and

Tyrel Olivier

Racquell Cassie

Defendants

Before:

The Hon. Mr. Justice Westmin R.A. James

Claim No: CV 2021-00494

IN THE HIGH COURT OF JUSTICE

Appearances:

Mr. Chase J. Pegus instructed by Mr. Vikash Indar Lal, Attorneys-at-Law for the Claimant

Mr. Richard Isaac and Ms. Daneille Allan, Attorneys-at-Law for the Defendants.

1 This case concerns the question of proprietary estoppel/breach of contract. The Claimant is the proprietor of the subject property and the First Defendant is her son.

Procedural History

2 By Fixed Date Claim Form filed on 4 ^th February 2021 and Amended Fixed Date Claim Form and Statement of Case filed on 1 ^st October 2021, the Claimant sought the following relief:

• i) Possession of ALL AND SINGULAR that certain piece or parcel of land situate at Maraval, in the Ward of Diego Martin, in the Island of Trinidad, known as “La Esperanza” comprising FIVE POINT ONE NINE SEVEN FOUR HECTARES (being portion of the lands described in the First Schedule to Deed No DE20200127569D001); and bounded:

  ON THE NORTH: partly by Fond Pois Doux Road and partly by an Old Road;

  ON THE SOUTH: partly by a Reserve 10.06 metres wide abutting the (Bethelemy River) partly by lands of the State and partly by Lot No 1;

  ON THE EAST: partly by lands of the State and partly by lands now or formerly of M. Letrain and

  ON THE WEST: partly by Lot 1 and partly by the said Reserve 10.0 metres wide

• ii) Further and/or alternatively damages for trespass and/or mesne profits in the sum of $5,000.00 per month;

• iii) Statutory interest on the sums claimed aforesaid pursuant to Section 25A of the Supreme Court of Judicature Act Chapter 4:01;

• iv) Costs; and

• v) Such further and/or other relief as this Honourable Court may deem just.

3 By Defence and Counterclaim of the First Defendant filed 15 ^th November 2021, the First Defendant denied the Claimant's Claim, counterclaimed against the Claimant and sought the following relief:

• i) A Declaration that the First Defendant has proprietary rights in equity in

• relation to the parcel of land and building thereon situate at L.P. Fond Pois Doux Road North Coast Maracas described in deed of conveyance dated 7 ^th August 2019 and registered as No. DE202001275695 as a result of promises, assurances and representations made to the First Defendant by the Claimant;

• ii) Damages for Breach of Contract;

• iii) An order that the Claimant do reimburse and pay to the First Defendant the sum of Three hundred and Forty One Thousand Six Hundred and Eighty Five dollars and Fifty Nine cents ($341,685.59)

• iv) Damages for loss of business opportunity

• v) Legal fees to date

• vi) Interest therein as the Court sees fit

• vii) Costs

• viii) Such further and/or other reliefs as the Court deems fit.

4 By Defence to Counterclaim filed 10 ^th January 2022, the Claimant denied the First Defendant's Counterclaim in its entirety and denied that the Defendant is entitled to any relief.

5 On 11 ^th September 2023 the parties consented to the Defendants giving up possession of the property before 1 ^st March 2024. The only issue left for the Court to determine was the issue of the contribution of the Defendants to the Claimant's property and the claim for mesne profits.

6 The trial took place on 29 ^th November 2023 and the parties filing their Written Submissions on the 20 ^th December 2023 and 21 ^st December 2023 respectively and their Replies were filed on 15 ^th January 2024.

Background

7 The Claimant purchased the subject property pursuant to a court order dated 3 ^rd October 2017 made in matrimonial proceedings between the Claimant and her common law husband. Her intention was for the land to be developed for eco-tourism. The Claimant had discussions with the First Defendant, who is the Claimant's son and her other children in relation thereto. The Claimant had an agreement with her children to develop the land for the benefit of her and the children. The First Defendant commenced work on the property and the Claimant allowed the First Defendant to live in the house while renovations were taking place.

8 Differences arose between the parties and between the period of 14 ^th February and April 9 ^th 2019, the Claimant objected to the First Defendant carrying out any further work on the property. On 9 ^th April 2019 the Claimant informed her children that despite her earlier agreement, she no longer wished to proceed with the development of the property. At that meeting, the Claimant agreed to reimburse the First Defendant the money he spent on repairs to the property.

9 On 1 ^st May 2019 the Claimant delivered a letter to the First Defendant informing him of her decision to stop the development of the land and advised him to cease all renovations. She communicated that he had until 1 ^st July 2019 to vacate the house and land. The Claimant in that letter indicated that she would be seeking a loan to repay him for the work done to the property and requested the cost of the renovations.

10 On 13 ^th May 2019, the Claimant received via email a breakdown of the expenses claimed by the First Defendant who requested payment in the sum of $326,735.59 in full on or before 31 ^st May 2019. The Claimant sought legal advice and by letter dated 30 ^th October 2019 requested the First Defendant vacate the property within 14 days.

11 The Claimant served pre-action protocol letters dated 10 ^th September 2020 on both Defendants, who were then living on the property, demanding that they vacate the property within 21 days. The Defendants through their attorneys responded by letters dated 25 ^th September 2020 claiming proprietary rights in equity in relation to the land as a result of certain promises, assurances and representations made to the First Defendant by the Claimant. The parties continued to correspond through their attorneys until these proceedings were commenced.

The Defendant's contributions

12 The Claimant has agreed to reimburse the First Defendant for the expenses incurred in renovating the house. The parties could not agree as to the cost of those renovations and so the burden is on the First Defendant to plead and prove the expenses incurred to renovate the property for which he seeks reimbursement.

13 The submissions of the Claimant referred to those expenses that improved the value of the property. That is not what the Claimant agreed to do. The evidence was that the Claimant agreed to reimburse the First Defendant for the money he spent on the renovations. The Claimant even told the First Defendant that she would get a loan for same. It was on this basis that the Defendant submitted the breakdown of his expenses. Even through the course of the case, the Claimant was willing to reimburse the First Defendant for the expenses incurred by the First Defendant in renovating the property.

14 I will deal with each of the First Defendant's expenses claimed.

Loan to the Claimant

15 The Claimant has conceded that the First Defendant loaned her $8,000.00 to pay her Attorneys for the conveyance into her name and agreed to repay same.

16 I would therefore award under this head $8,000.00

Scotiabank Loan

17 The first Defendant obtained an unsecured loan of $180,512.50 TTD which he gave evidence was applied to purchase material and pay for material. He paid $5,000.00 in fees and paid the monthly instalment of $3,879.92 which is required until August 2024. The documents indicate that the loan carried an interest rate of 10.50% for 60 months.

18 The principal amount was applied to the renovations so the Defendants cannot receive the principal along with the cost of renovations as this would amount to double compensation. The First Defendant's expense in relation to the loan however is recoverable. The First Defendant would have had to pay fees for the loan of $5,000.00 and the interest part of the payments for the 60 months are recoverable as they are expenses of getting the funding for the project. The Claimant would have had to pay those expenses if she received funding from the banking institution or credit union as she proposed. The total payback sum for the loan was $3,879.92 x 60 months = $232,795.20. The total interest that would be paid on the loan would be $232,795.20 - $180,512.50 (the principal) = $52,282.70. The First Defendant is therefore entitled to be reimbursed the interest and fees ($52,282.70 + $5,000.00) = $57,282.70

19 I would therefore award under this head $57,282.70

Legal Fees to Girvan - Attorney

20 The first Defendant claims $800.00 in legal fees for Alatashe Girvan Attorney at Law to prepare the agreements for him and the Claimant to sign to protect his interest. This was for the First Defendant's own protection and not part of the renovation costs for the property and so I would not award this sum.

Topographical survey plan

21 The Claimant retained the services of Nicko Guy to do topographical drawings/survey for the Property. He gave evidence that he paid Mr Guy cash. He attached an Invoice not a receipt for the said sum. He claimed $6,000.00 under this head.

22 The Claimant's Attorney-at-Law indicated that there was no survey attached to the witness statement and indicated that since it was an invoice not a receipt, this expense should not be allowed. Mr Nicko Guy did give evidence that he did receive this money and performed the services. In absence of a receipt the first hand evidence of the contractor is best evidence. The First Defendant's task is to show his expenses, the absence of the survey from the witness statement does not mean the expense was not undertaken. The Claimant never challenged Mr Guy in cross examination that he did not do the survey or that he wasn't paid that amount. The Claimant was also aware that this survey was being done. In those circumstances I would award the $6,000.00 for the survey.

23 I would therefore award under this head ...