Soogrim v Singh

• Jurisdiction: Trinidad & Tobago
• Judge: Kokaram, J.
• Judgment Date: 23 February 2017
• Neutral Citation: TT 2017 HC 23
• Docket Number: CV2015-03713
• Court: High Court (Trinidad and Tobago)
• Date: 23 February 2017

High Court

Kokaram, J.

CV2015-03713

Soogrim

and

Singh

Appearances:

Mr. Ancil Moses and Mr. Tafara Masaisai for the claimant.

Mr. Edwin Roopnarine for the defendant.

Civil Practice and Procedure - Orders — Consent order — Setting aside — Whether entry of consent order ended proceedings — Whether sufficient grounds to set aside consent order — Whether court had jurisdiction to make further orders

Kokaram, J.

1 The applications before the Court raise the issue whether a consent order which was entered on 29th September 2016 brought these proceedings to an end and if so whether the consent order can be set aside or enforced in these proceedings.

2 The claimant instituted these proceedings to set aside a memorandum of transfer dated 29th January 2012 in relation to her home and for damages for conversion for the wrongful sale by the defendant of a motor vehicle. The claims arose out of a close relationship which the claimant, her deceased husband and the defendant at one time shared. The claimant and her husband were an elderly couple and was introduced to the defendant in 2011. Arising from that friendship the defendant assisted the claimant and the deceased in conducting several of their personal transactions and construction works at their home. Eventually a memorandum of transfer was effected to transfer the property owned at that time by herself and her deceased husband to the defendant with a life interest to the claimant and her deceased husband. The claimant's husband died in November 2012 and unhappy differences arose between the claimant and the defendant who was then occupying a portion of the said property. The claimant alleges that she only then discovered the said memorandum and contends that she did not instruct any attorney to prepare it nor was she or her husband informed by the preparing attorney of the contents and effect of the memorandum of transfer and was not present when it was purported to have been executed. She also contended that she and her husband purchased a motor vehicle which was transferred into the names of her deceased husband and the defendant. Upon her husband's death the defendant sold the vehicle and she never received any part of the proceeds of the sale. The defendant in his defence asserted, inter alia, that as a result of their close relationship it was the claimant and her husband who encouraged him to conduct renovation works at the said property and to have the property transferred to him. He also contended that the claimant was fully informed and advised of the contents and effect of the memorandum of transfer by the preparing attorney at law and the memorandum of transfer was a product of informed consent. With respect to the motor vehicle he contended that he paid a portion of the purchase price for the said vehicle ($10,000.00) with the claimant and her husband paying the balance ($27,000.). The vehicle was sold for $30,000.00 and he only wished to keep $10,000.00 with the balance of $20,000.00 for the claimant, which she refused.

3 The parties entered into negotiations and, eventually, at a case management conference compromised the claim by drawing up the said consent order. The terms of the consent order essentially recorded their settlement. The main terms of their agreement reflected in the consent order in relation to the said property were that they will have it valued, that they will be each entitled to a half share of the value of the property and both will have the option to purchase the other party's half share. Ordinarily, such an order is on its face unobjectionable and represents a common method of settling rivalling claims and interest in property. However, the problem in this case is that the defendant has reneged on the agreement and the claimant has filed an application to enforce its terms. The defendant in response to the claimant's application has filed an application to set aside the consent order and to restore the claim for trial.

4 The defendant contends that the consent order was made as a result of mistake or misrepresentation or undue influence or want of authority or that it was illegal ab initio. In the alternative, he argues that the order is a conditional order and not a final order. For the reasons set out in this judgment the consent order entered represented a compromise of the party's respective claims in the property in the terms outlined in the order. Regardless of the merits of their respective cases, this was the agreement which both parties represented to this Court would finally bring an end to their dispute and was treated as such by this Court in having it duly initialled by attorneys for both parties and the parties themselves and entering it as the Court's final order. I am also not satisfied that the defendant has disclosed any reasonable ground for setting aside this consent order.

5 The main issues that arise on these applications are as follows:

• a. Whether on entering the consent order the proceedings were finally brought to an end;

• b. If so, whether this consent order can be set aside by way of an application in these proceedings rather than by a separate action;

• c. If, in any event, such an application can be entertained, whether there exists any ground to set aside the consent order; and

• d. If the consent order represents binding obligations on the parties to what extent can the Court make any further orders in this action to “enforce” the terms of the order under the express provision of “liberty to apply”.

EFFECT OF THE CONSENT ORDER

6 The consent order entered represented a final order compromising the claim in its entirety. Bowen, L.J. curtly summarised the effect of a compromise in the following terms: “As soon as you have ended a dispute by a compromise you have disposed of it”. In a pure sense, the consent order is premised on a contract made between the parties with the consent order being evidence of that contract. See paragraph 63.11 Blackstone's Civil Practice 2016. The issues of law or fact which formed the subject matter of the dispute are now “buried beneath the surface of the compromise” and the Court would not allow them to be resurrected. This principle of law is premised on two principles of public policy: The need for there to be an end to the dispute and the desirability that parties are to be held to their bargain. The termination of their dispute by compromise now represents an entirely new set of circumstances that arises between the parties giving rise to a new cause of action. See McCallum v. Country Residences Ltd. [1965] 1 W.L.R. 657 at 660.

7 The phrase “consent order” in some instances can be ambiguous. Lord Denning, M.R. once observed in Siebe Gorman and Co Ltd v. Pneupac Ltd [1982] 1 All E.R. 377, [1982] 1 W.L.R. 185 that the meaning of the words “by consent” may evidence a real contract between the parties. However, another meaning of the words by consent can mean “the parties hereto not objecting.” In that instance there is no real contract or it is an order made without obligations.

8 The defendant's Attorney-at-law made the submission that the order was not final but conditional and referred to Cordell Green v. Kingsley Stewart [2014] J.M.S.C. Civ 26, Western Broadcasting Services v. Edward PC 43 of 2005 and Green v. Rozen [1955] 1 W.L.R. 74. These authorities confirm the following propositions:

• a. There are various forms by which a claim can be compromised and the parties must carefully decide which of the options are suitable for their case as each method has its own legal consequences. See Green v. Rozen.

• b. Where there is a dispute as to whether an agreement was arrived at between the parties which give rise to a consent order, the Court will first determine whether there was agreement as to the essential terms of compromise. If important or essential terms are unsettled the agreement can be held to be incomplete.

• c. The consent order is to be interpreted like a contract and to place the relevant language in meaningful context.

• d. Public policy dictates that persons of full age and capacity advised by counsel should be free to contract on such terms as they desire and that such contract be held sacred by the Court.

• e. If an agreement is uncertain it would be void for uncertainty.

In this case the parties elected to reduce the compromise in the terms of an order and did not elect to utilise the mechanism of a Tomlin Order. The parties agreed on the essential terms of the compromise. The agreement was certain in terms and where it provided for further agreement it was for agreement on the mechanisms to give effect to the agreement.

9 In determining whether there is a genuine agreement it is important to view the consent order in the context of the entire proceedings. Upon considering the order in its proper context and the evidence adduced on the defendant's application, I am of the view that the defendant did not “bow its head.” The order was a genuine consent order representing a contractual agreement between the parties. The parties expressly telegraphed to the Court the need to return to the Court to work out the mechanics of the order if needed under the “liberty to apply” provision.

10 In this case the claim was initially set down for trial as an undefended claim. On that day of trial, the defendant applied for an extension of time to file its defence. Extensive skeleton arguments were filed. In those skeleton arguments, the merits of the proposed defence were fully explored. By consent, the parties agreed that the matter should be defended. It was a course which was encouraged by this Court and for which I commended both Counsel for arriving at a consensus on how the claim should be managed which would further the overriding objective. Directions were given by the Court for the filing of a defence, reply, disclosure and a Case Management Conference (CMC). When the...