Selwyn Persad v Rajendra Maye

• Jurisdiction: Trinidad & Tobago
• Court: High Court (Trinidad and Tobago)
• Judge: Peterson, J.
• Judgment Date: 23 May 2025
• Neutral Citation: TT 2025 HC 153
• Year: 2025
• Docket Number: Suit No.: CV2019-05078

Selwyn Persad

and

Rajendra Maye

Peterson, J.

Suit No.: CV2019-05078

High Court

Appearances:

Mr. Ganesh Saroop, instructed by Mr. Robert Abdool-Mitchell, Attorneys at Law on behalf of the Claimant.

Mr. David Rajkumar, instructed by Ms. Nazima Ali-Knox, Attorneys at Law on behalf of the Defendant.

Peterson, J.

1 The Claimant claims damages for breach of contract arising out of losses suffered due to the Defendant's breach of a lease agreement dated 15 November 2018. He asserts that the Defendant breached the terms of the lease requiring either party to give the other six months' notice in writing in order to terminate the agreement made between the parties.

2 By his Claim Form and Statement of Case filed on 11 December 2019, the Claimant sought the following reliefs:

• a. Damages for breach of contract;

• b. Further and/or alternatively, the sum of $810,000.00;

• c. Interest at a rate of 9% per annum from 29 December 2018 and continuing;

• d. Costs;

• e. Such other relief the Court may deem fit.

3 By Amended Defence and Counterclaim filed on 1 September 2020, the Defendant denied liability for breach of contract. He states that he did not unilaterally terminate the lease, but rather the lease was terminated by agreement on 20 December 2018.

4 Further, the Defendant seeks rescission of the lease agreement because he was induced to enter into the contract by false representations made by the Claimant.

5 The Defendant claims that as a result of material misrepresentation, he suffered loss. He seeks the following relief:

• a. Rescission of the written Lease Agreement entered into on 15 November 2018 between Selwyn Persad and Rajendra Maye.

• b. Return of all monies that the Defendant expended pursuant to the Lease, including the payment of the first and last month's rent amounting to $285,000.00 and monies paid to the Claimant in the amount of $387,102.81 for the existing bar stock which was never used by the Defendant and which remained with the Claimant.

• c. Damages for misrepresentation under section 3(1) of the Misrepresentation Act Ch 82.35

• d. In respect of the $387,102.81 paid to the Claimant for the existing bar stock, an alternative claim for restitution for unjust enrichment and/or money had and received and/or total failure of consideration.

• e. Based upon the representation that the commercial freezer was in good working order, the Defendant expended $46,347.00 on meat. That meat spoiled, and he claims the amount of money spent.

• f. Based upon the representation that the Sound System was in good working order, since the Defendant expended an extra $17,500.00 in renting an alternative Sound System, and he claims this amount.

• g. Based upon the representation that the Point-of-Sale System (also referred to as “the POSS”) was workable, since the Defendant expended $1,500.00 in fees to diagnose the failure of the POSS, and he claims this amount.

• h. The Defendant further contends that the Lease impliedly warranted the good working order of the Sound System and that the effect of the Claimant's breach of this term deprived the Defendant of a substantial part of the benefit to which he was entitled under the Lease, and by itself, and in combination with the pre-execution misrepresentations, entitled the Defendant to treat the Lease as terminated.

• i. In respect of the Claimant's breach of contract, the Defendant claims damages

• j. Interest under Section 25 of the Supreme Court of Judicature Act, Chapter 4:01.

• k. Such further and other relief as the Court shall deem just.

• l. Costs.

ISSUES

6 The following issues fell for the Court's determination:

• i. What were the terms of the lease agreement between the parties?

• ii. Was Clause 5 XVIII of the lease agreement breached by the Defendant on 29 December 2018?

• iii. Did the Claimant misrepresent to the Defendant the fitness for purpose of the Point-of-Sale System, the lighting and audio/sound system and the refrigeration appliances?

• iv. If so, was the Defendant entitled to rescind the lease agreement?

• v. Was the Defendant entitled to restitution of monies expended by him in furtherance of the lease agreement, specifically the payment he made for the existing bar stock, and if so, on what basis?

• vi. Was the Claimant entitled to treat the lease agreement as continuing?

• vii. Is the Claimant entitled to damages for breach of contract?

• viii. Did the Claimant take reasonable steps to mitigate the loss resulting from the Defendant's breach?

• ix. What is the appropriate measure of damages, if the Claimant is entitled to damages?

• x. Should the Court make an order for interest on any of the sums awarded? If so, what is the appropriate rate of interest to meet the justice of the case?

• xi. Whether a costs order should be made and if so, in favour of which party?

ORDER

7. Having evaluated the evidence, considered the submissions and the law, the Court makes the following orders:

IT IS HEREBY ORDERED THAT THERE BE

• (1) Judgment for the Claimant against the Defendant on the Claimant's Claim for breach of contract;

• (2) The Defendant's Amended Counterclaim is Dismissed;

• (3) The Defendant is to pay to the Claimant the sum of $405,000.00 as damages for breach of contract;

• (4) The Defendant do pay interest at a rate of 7.5% per annum from 11 December 2019, the date of the filing of the claim, to the date of this judgment, 23 May 2025.

8 The Attorneys at Law shall address the AALs on the issue of costs on 27 May 2025 at 10:00 a.m. by virtual hearing

CLAIMANT'S CASE

9 By his Statement of Case filed on 11 December 2019, his Reply to the Amended Defence filed on 23 October 2020, and the Defence to Amended Counterclaim filed on 23 October 2020, the Claimant's case is outlined below. By a lease agreement made in writing on 15 November 2018, the Claimant agreed to lease his nightclub “Space La Nouba” to the Defendant. This lease agreement contained the following at Clause 5 XVIII:

“Either party may, for any reason, provide to the other party six months' written notice to terminate this Agreement”.

10 Pursuant to this agreement, the Defendant took possession of the demised premises at the beginning of December 2018. On 29 December 2018, the Defendant abandoned the demised premises.

11 The Defendant then sent a letter to the Claimant dated 10 January 2019 claiming that the parties had agreed that the Defendant would give up possession of the premises and the Claimant would accept two months' rent in lieu of the required six months' notice. The Claimant denies any such agreement.

12 The Claimant further states that it was an implied term of the lease that, should the terminating party not be able to provide six months' notice of the intention to terminate, six months' rent in lieu of notice would have to be paid.

13 The Claimant indicates that he has suffered damage or loss as he has had to look for a new lessee.

14 The Claimant asserts that at all material times, all equipment essential to the running of the nightclub was in proper working condition. His case is that the Defendant hired inexperienced personnel who did not have working knowledge of the equipment, and/or the Defendant was influenced by third parties to retain their services to provide a sound system that had already been properly provided.

15 Further, the Claimant states that the Defendant utilised the bar stock during his occupation of the nightclub and/or the Defendant took all of the existing bar stock upon vacating the nightclub.

16 The Claimant relied on his evidence and that of the following persons:

• i. Selwyn Richard Persad, the Claimant's son;

• ii. Andy Jhagroo, an air-conditioning and refrigeration technician;

• iii. Clifford Beckles, a sound technician; and

• iv. Jerome O'Connell, an IT consultant.

DEFENDANT'S CASE

17 The Defendant denies any breach of the Lease Agreement. The Defendant asserts that he was induced to enter into the lease by material misrepresentation made by the Claimant that equipment essential to the running of the nightclub was functioning, when such equipment was non-functioning.

18 Further, he states that the proper functioning of the equipment was an implied warranty in the Lease, and an express oral warranty emphasised repeatedly by the Claimant.

19 The Defendant's case is that between 28 November 2018 and 30 November 2018, he discovered that the Sound System, the Point-of-Sale System and the commercial freezer were not functioning properly or at all.

20 In particular, the Defendant pleaded:

• i. that the Sound System did not work to any acceptable standard, causing him loss and damage. It was not compatible with live bands, which is a core activity of the Nightclub. The Defendant had to engage in a subcontract with the WHO Sound Company (“WHO”) at the cost of $3,500.00 for the use of their sound system to enable the performance of the live band. The Defendant paid WHO a further $14,000.00 to use its sound system for the rest of December 2018. When the Defendant complained about this to the Claimant at a meeting at the nightclub on 30 November 2018, the Claimant's response was that if the sound was not up to the Defendant's standards, he could pack up and leave.

• ii. that the Point-of-Sale System wholly failed and could not upload the inventory. The Claimant sent a technician, the cost of which the Defendant had to bear. The technician charged the Defendant TT$1,500.00 for the consultation. He advised the Defendant that the computer system was outdated, a new system would cost US$10,000.00 for the software and TT$20,000.00 for the hardware.

• iii. that the commercial freezer and the beer chillers did not work from the time that the Defendant took possession of the nightclub and began operations. In preparation for the opening of the nightclub, his workers ordered meat to the value of $46,347.80 and alcohol with which they stocked the freezer and...