Wanfang Yan v Eshwarlal Beebakhee
| Jurisdiction | Trinidad & Tobago |
| Judge | Madam Justice Eleanor Joye Donaldson-Honeywell |
| Judgment Date | 20 February 2020 |
| Neutral Citation | TT 2020 HC 72 |
| Court | High Court (Trinidad and Tobago) |
| Docket Number | Claim No. CV2018-00756 |
| Date | 20 February 2020 |
IN THE HIGH COURT OF JUSTICE
the Honourable Madam Justice Eleanor Joye Donaldson-Honeywell
Claim No. CV2018-00756
Mr. Mr Gerard Raphael and Ms Lana Chunilal, Attorneys at Law for the Claimant
Ms Rajanlal Joseph and Mr. Robert Boodoosingh, Attorneys at Law for the Defendant
This case concerns a Claim and Counterclaim arising from Agreements entered into by the parties for sale of two commercial properties each at a price of $5,500,000 to be paid by instalments over two years. The Claimant is the purchaser under the said Agreements and based on same, she was permitted to enter into possession of the two properties for commercial purposes. She also undertook extensive renovations on the properties.
Having completed these renovations and paid all but the last instalment due for the property up to 30 September, 2017, the agreed date for completion, the Claimant sought confirmation from the Defendant that he was prepared to fulfil his closing requirements as the Vendor. Correspondence was sent to him requesting a settlement letter from his bankers regarding an outstanding mortgage on one of the Properties. The Claimant's position is that all that was outstanding based on the Agreements was $441,654.60, which she was prepared to pay once the Defendant provided the information requested.
The Defendant considered the Claimant to have defaulted by not making the final payments and also claimed interest for prior late payments, as well as compensation for the change in the exchange rate vis-a-vis the US dollar. He claims that based on discussion with the Claimant's brother prior to the signing of the Agreements, the purchase price agreed upon was US$ 2,500,000 or the TT$ equivalent. He signed authorising a Bailiff to collect $1,164,783.48 from the Claimant in January 2018 and later, in March 2018, caused the Bailiff to write to the Claimant threatening eviction from the properties.
The Claimant seeks specific performance of the two Agreements and injunctive relief preventing the threatened eviction. In the alternative, she seeks the return by the Defendant of the $10,500,000 paid on account for the purchase price of both properties, plus $1,770,000 spent on renovations.
The Defendant, in addition to alleging the default of the Claimant, counterclaims for the Agreements to be set aside as being inequitable and unconscionable. He further contends that the Claimant is not entitled to any refund of instalment payments made as same must be set off against the rental value of the properties which the Claimant could have benefitted from while in possession.
The issues arising from the pleadings are as follows:
-
a. What were the terms of the Agreements between the parties and did same include terms alleged to have been discussed prior to signing?
-
b. Were the written Agreements entered into in a manner that was inequitable or unconscionable such that they ought to be set aside?
-
c. Was the Defendant entitled to treat the Claimant as having breached the Agreements?
-
d. If so, was there any basis for the Defendant to set-off the instalments paid by the Claimant against rental values of the properties, such that the Claimant would be entitled to no refund?
-
e. If not, is the Claimant entitled to specific performance of the Agreements or damages in lieu thereof? In the event that specific performance is not possible, ought the damages in lieu to include the cost of renovations incurred by the Claimant.
There is very little difference between the parties regarding the fact scenario relevant to this case. There is no dispute that prior to signing the written Agreements, there were negotiations between the Defendant and the Claimant's brother, Mr. Fu Qiang Yan. The Defendant claims that the brother agreed that the sale price was to be in US dollars and as such with fluctuations in the exchange rate, the TT dollar price increased over the two years. However, the Claimant was not privy to those discussions. In her case, only the terms in the formal transaction that followed are enforceable.
According to the Claimant, the formal aspect of the transaction commenced when she attended with her husband at the office of her Attorneys at Law, Mr Raphael and Ms. Chunilal. She claims that on that day, only Ms. Chunilal was present and the Defendant attended and duly signed the Agreements.
By the two written agreements dated the 23 September, 2015, the Defendant agreed to the Claimant's purchase of two properties. The properties were the Cunupia Property, a guest house, and the Enterprise Property, a sports bar, purchased for $5,500,000.00 each. On the said 23 September 2015, she paid $500,000.00 as a deposit on each property. According to the Defendant, the total of $1,000,000.00 was paid in cash and that made him feel uncomfortable. However, he accepted the payment.
The agreements provided for the Claimant to have immediate possession and control of the said proprieties to operate business. The date for completion of the transactions was at the end of two years namely, 30 September, 2017.
The balance of the purchase price was to be paid by instalment of $208,333.41 on the 1st October, 2015 and thereafter twenty-three equal monthly instalments of $208,333.33 commencing on the 1 November, 2015 and continuing, thereafter, on the last working day of each succeeding month until the remaining balance of $5,000,000.00 on each property was paid.
The written Agreements provided that they constitute the full statement of the contractual rights and liabilities of the parties and they supersede and nullify all negotiations and/or liabilities and/or any written or verbal agreements made between the parties and made between the Defendant and the Claimant's agent, her brother Mr. Fu Qiang Yan, prior to the agreements in respect of the properties and the business, save and except for those expressly provided for in the said agreement.
The Defendant's pleaded case is that on the date appointed for signing of the Agreements, 23 September, 2015, he attended the law offices of R.C. Chadeesingh & Co., Attorneys-at-Law situate at Ramsaran Street, Chaguanas, which said law office had done significant legal work for him over the years. He claims that, because the signing took place there, he was under the distinct impression that Mr. Raphael, the Attorney who signed as having prepared the Agreements, worked for the said firm and was looking after his interest. Thus, he signed the said Agreements without carefully examining same. Further, the Defendant maintained that he was never told by Mr. Raphael or Ms. Chunilal that they represented the Claimant and he should get independent legal advice before signing the said Agreements.
In the circumstances outlined above the Defendant's case is that he neither had knowledge of nor agreed to certain terms in the written Agreements. These terms include the quantum of the purchase price as stated in TT dollars and that terms, allegedly discussed in prior negotiations with the Claimant's brother as to the price being in US dollars, were not included.
The Claimant, in her pleadings in Reply, refutes the Defendant's version of events on the date of signing. She says that the Defendant had been given copies of the Agreements three days in advance of the signing date. She says he was fully aware that Mr. Raphael and Ms. Chunilal were her Attorneys, as the Defendant had not retained them. The Defendant was expected to make use of the advanced copies of the Agreements to seek advice from his own Attorney Mr. Boodoosingh. Mr. Boodoosingh had prepared Draft conveyancing documents for the Defendant in the course of negotiations for purchase of the Claimant's property.
It is not in dispute that the Claimant was late in some of her instalment payments over the two year period. The Defendant's Attorney wrote to her on January 3, 2017 complaining inter alia of late payments and proposing the imposition of a “late penalty fee” on the instalments. He also raised, for the first time in writing, the issue as to the price having been quoted in US dollars initially. As such, the Defendant's Attorney said the balance to be paid would have to be adjusted “to cater for the fluctuations in the T&T dollar vis a vis the US dollar”. There is no pleading or evidence as to any further action taken based on that letter.
According to the Claimant, payments were thereafter accepted by the Defendant and all but the last instalment was paid up to date, in time for the completion date in September 2017. In preparation for completion, searches done by the Claimant revealed that, by a Deed of Mortgage registered as DE200401448144D001, the Defendant had mortgaged the Cunupia Property to the Republic Finance and Merchant Bank Limited to secure the principal sum of One Million Nine Hundred Thousand Dollars. The said mortgage remained outstanding up to the trial of this Claim.
As at the date for completion of the said transactions on the 30 September, 2017, there was a balance of $220,827.30 owing by the Claimant on the Cunupia Property and the same figure on the Enterprise Property for a total of $451,654.60.
The Claimant's pleading is that, in light of her concern about the Defendant's outstanding mortgage at the time when her final payment was due, she requested from the Defendant a settlement letter from the Republic Finance and Merchant Bank Limited as she was then ready and willing to complete the said transactions. Having not received a settlement letter as requested, the Claimant decided to withhold the sum of $451,654.60, the total owing on the said properties.
There is no written confirmation of these requests made in September by the Claimant but on 9 October,...
To continue reading
Request your trial