Sookdeo and Superior Doors Ltd v Lum Young et Al

• Jurisdiction: Trinidad & Tobago
• Judge: Rampersad, J.
• Judgment Date: 11 November 2013
• Neutral Citation: TT 2013 HC 239
• Docket Number: 3195 of 2010
• Court: High Court (Trinidad and Tobago)
• Date: 11 November 2013

High Court

Rampersad, J.

3195 of 2010

Sookdeo and Superior Doors Limited

and

Lum Young et al

Appearances:

Claimants: Samuel Saunders

Defendants: Rennie Gosine

Damages - Application for detinue and/or conversion — Application dismissed — Application for assault and battery — Application dismissed — Debt — Trespass of goods — Application to set aside loan transaction — Whether1 ^st claimant had unclean hands — Whether 1 ^st claimant was a signatory to promissory note for partial sum of total loan amount — Whether loan was enforceable under section 11 of the Moneylenders Act — Whether the defendant acted unlawfully by seizing goods of the claimants — Promissory notes insufficient for purposes of section 11 — Loan illegal and unenforceable — General damages — Quantum.

Rampersad, J.

1 The claimant is the manager of the 2 ^nd named claimant company. The 1 ^st named defendant is a moneylender and the 2 ^nd named defendant is his son. Between 2004 to 2006, the first named claimant and his wife borrowed money from the first named defendant at various times and rates of interest and repaid those loans and the interest thereon. In 2007, the first named defendant loaned the first named claimant and his wife the sum of $2.2 Million repayable with interest, allegedly for use in the business of the 2 ^nd named claimant, and failed to pay all of it back. The claimants seek to have the loan transactions set aside on several grounds set out in the pleadings while the first named defendant seeks to enforce the loan arrangement or, at the very least. to have the principal sum returned to him on the ground of unjust enrichment.

THE ISSUES ON THE PLEADINGS.

THE STATEMENT OF THE CASE

2 There is no issue that the first named claimant and his wife had been doing business with the first named defendant at his home in Rio Caro since March 2004. In March 2004. in return for a loan for $80, 000:

1.1

The first named claimant and his Wife signed a promissory note for $128, 000 dated 11 March 2004 with an interest rate of 12% for 6 months: 1.2. The first named claimant and his wife signed two handwritten documents authorizing the first named defendant to enter the first named claimant's and his wife's premises at any time to take assets to the value of the money borrowed; 1.3. The first named claimant surrendered his passport: 1.4. The first named claimant and his wife issued one undated check for $80.000 to cover the principal sum, six post-dated cheques, each for $8000, and one post-dated cheque for $7500.

3 When the loan was repaid six months later, the first named defendant returned the promissory note and the two handwritten authorizations and also returned the first named claimant's passport

4 Between 2005 and 2007, the first named claimant and his wife took a number of loans from the first named defendant, subject to the same terms and conditions, at varying rates of interest, depending on the quantum borrowed, all of which were repaid.

5 The loans which are the subject of these proceedings were granted as follows, according to the claimants:

5.1

On 26 January 2007, the first named claimant and his wife borrowed $1, 000, 000.00 at 5% per month and gave the first named defendant an undated cheque for $1, 000, 000.00 drawn on the second named claimant's hank account. A promissory note was signed by the first named claimant and his wife along with two handwritten authorizations authorizing entry onto the first name claimant's premises but copies of the same were not provided. 5.2. On 24th of June 2007. the first named claimant and his wife once again requested a further $1, 000, 000.00 and asked that that be consolidated with the loan given on 26 January 2007. That was agreed, making the entire loan $2 million at an agreed interest rate of 5% per month. No promissory note or other document was signed by him or his wife or, if documents were signed, copies were not given to them. The first named claimant's passport was also retained by the first named defendant. 5.3. On 2 November 2007, a still further sum of $200.000 was loaned to them which was agreed to be consolidated with the outstanding sum of $2 million with interest at the rate of 5% per month or $110, 000 per month. Again, no promissory note or any other document was signed or given to them. 5.4. Post-dated cheques were given by the first named claimant and his wife and were particularized in the statement of case. However, six cash payments were made of $110, 000 each on the 18th day of July, August, September, October, November and December 2007 amounting to a total sum paid of $660, 000. 5.5. Payments were also made after the claimant and his wife separated on the 15th of May 2008. After which she ceased having any dealings with the first named defendant and the second named claimant's business. The first named claimant then continued making deposits directly into the first named defendant's bank account or paid cash and cheques directly to the second defendant or one of the first named defendant's other sons. 5.6. As a result of apparent default: 5.6.1. The first named defendant, in or about March or April 2009 unlawfully took away the second claimant's vehicle registration number TCE 1879 that vehicle was never returned to the second named claimant as it was the subject of a mortgage and the mortgagee took possession and sold it; 5.6.2. On 13 August 2009. the defendants and 11 other persons took the second named defendant's motor vehicle PBN 4947, along with certain of the first named claimant's personal items valued at $8, 350.00. 5.6.3. Several threats were made between 13 August 2009 to 13 April 2010 as a result of the first named claimant's continuing default: 5.6.4. On 13 July 2010, the second defendant, accompanied by 3 men, came to the business premises and demanded that the first named claimant pay off the loan and threatened to beat him if he did not. The second named defendant then demanded him to sign a blank sheet of paper which he did under threat and for fear of his safety: 5.6.5. On 17 July 2010, the second named defendant, accompanied by 3 men, again unlawfully entered the first named claimant's residential premises and took away his goods valued at $71.300.00 together with the second named claimant's Hyundai motor vehicle registration number TCE 1878 valued at $54, 000.00.

6 Consequently, the first named claimant claims he suffered special damages in the amount of $79, 650 plus the cost of the rental of a vehicle at $400.00 per day. The claimant further wished the court to:

6.1

Declare that the agreements of 26th January 2007, 24th June 2007 and second November 2007 are illegal, null and void and of no effect. 6.2. Declare that any document signed by the first claimant authorizing him to seize any of his goods is null and void and of no effect, 6.3. Damages for trespass to the claimants' premises and goods, 6.4. Damages for assault and battery of the first named claimant, 6.5. Damages for detinue and/or conversion of the claimants' goods, 6.6. Injunctive relief preventing the defendants from entering upon the first named claimant's premises and the second named claimant's premises and from taking possession or seizing any of the claimants' goods. 6.7. An order pursuant to section 19 (1) of the Moneylenders Act for an account, 6.8. An order for the return of the first named claimant's passport, 6.9. Aggravated and exemplary damages, 6.10. Interest 6.11. Further and/or other relief 6.12. Costs.

THE DEFENCE

7 It is not in issue that the first named defendant was a licensed moneylender. The fact of the monies being loaned was also not in issue nor were the terms and conditions imposed nor the post-dated cheques. The defendants denied that the first named claimant and his wife were not provided with copies of the documents, which the first named defendant quite adamantly suggested were in fact signed at the time of the loan. The first named defendant says that, at all times, the first named claimant represented to him that the money was being borrowed for his company — the second named claimant - and was therefore acting in his personal capacity and as an agent for the second named claimant.

8 The defendants say that they returned P03 4947, which the first named claimant had consensually offered as collateral, approximately a week after the van was taken. The defendants also referred to PCB 4947 having been taken by Caribbean Finance Corporation under a mortgage they held with respect to that vehicle. It is obvious that there was some error at paragraphs 16 (b) and (c) and paragraph 17 (d) of the amended defence which was not remedied as both paragraphs referred to the same vehicle when there seems to have been an intention to refer to a different vehicle in each paragraph. The other items taken, including the first named claimant's passport, were returned as a result of an order made by this court on 28 September 2010. The first named defendant alleged that the claimants and the first named claimant's wife were indebted to the first named defendant in the sum of $4, 590, 000.00 as per a statement filed together with the defence on 14 October 2010.

9 By way of counterclaim, the first named defendant claimed payment of the sum of $4, 590, 000.00 as referred to in his statement of account pursuant to section 12 (2)(b) of the Moneylenders Act. Alternatively, the first named defendant claimed the sum of $2, 200, 000.00 on the basis that those were monies had and received and the claimants' failure to pay the sums amounted to unjust enrichment and was thus unconscionable, oppressive and illegal.

THE REPLY AND DEFENCE TO COUNTERCLAIM.

10 In the defence to counterclaim, the claimants contended:

10.1

That the documents reared to in the defence and counterclaim were not promissory: notes under section 83(1) of the Bills of Exchange Act; 10.2. The second named claimant was not a party to...