THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT...

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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV2009-02764

(formerly HCA 1613/1997)

Between

MICHAEL PEREZ

The Claimant

AND

BUDDIE MILLER

KAMLYN MILLER

The Defendants

Before the Honourable Madame Justice Margaret Y Mohammed

Dated the 26th April, 2016

Appearances

Mr. Robin Otway for the Claimant

Mr. Mark Morgan for the Defendants

DECISION

1. On the 16th July 2014, the Claimant applied to the Court for an order pursuant to Part 43.9

CPR and/or the inherent jurisdiction of the Court for an order directing the Defendants to

execute a Deed of Conveyance prepared by the Claimant’s attorneys at law, for a certain

parcel of land known as Lot No 9 Timshel Park, Maracas Valley (“the property”) within

21 days of the delivery of the deed to the attorneys at law on record for the Defendants

and in default directing the Registrar of the Supreme Court to execute the Deed in the event

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the Defendants neglect or refuse to execute it (“the application”).The Claimant also seeks

to recover the costs for the application

2. The issue to be decided relates to the enforcement of an order of Best J pronounced on the

16th January 2013 (“the Best order”) after the trial of the substantive issues in the matter.

If the Claimant is successful it would mean that he would be able to enforce the Best order

and realize the fruits of his judgment. If the application fails it would mean that he was

successful at the trial but the extent of his success would be nothing more than the paper

on which the Best order is written.

The Background

3. The narrative preceding the application would assist in placing it in context. It is not in

dispute that on the 4th August 1993 the parties entered into an Agreement for the Sale (“the

Agreement for Sale”) of the property. Due to the non-completion of the sale of the property

the Claimant instituted the instant action for specific performance of the Agreement for

Sale, damages for breach of contract in lieu of specific performance, consequential

accounts, directions and inquiries, interest on any damages awarded, a declaration that the

Claimant is entitled to and has a lien on the property to the extent of $180,000.00 paid by

him to the Defendants under the Agreement for Sale and the amount of the damages and

costs. The trial of the substantive matter came up before Best J. According to the written

judgment delivered by Best J (“the Best judgment”) at the heart of the dispute were several

clauses in the Agreement for Sale. The issues to be determined at the trial were whether

the Defendants secured all the necessary ‘approvals’ so that the property was “ready for

building” and whether the Claimant as purchaser was entitled to an abatement due to the

loss of square footage. The Court found that the approval which was given on the 28th June

1995 was not final approval from Town and Country Planning Division and for the

Defendants to construe the approval as both outline and final approval placed the Claimant

at a significant disadvantage in sourcing funds to complete the Agreement for Sale. The

Court also found that the Claimant is entitled to an abatement in the sum of $20,666.50.

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4. In the Best order the Court ordered specific performance of the Agreement for Sale, for the

Defendant to pay the Claimant his costs of the action certified fit for one Counsel to be

taxed in default of agreement and a stay of execution of 42 days. Notably missing from the

order in the Best judgment and the perfected order is the Claimant’s entitlement to the sum

of $20,666.50 as an abatement. I will address this matter later. On the 25th February 2013,

two days before the expiration of the stay of execution the Defendants appealed the Best

order. They did not apply to the Court of Appeal for a stay of execution of the Best order

pending the hearing of the appeal. On the 25th June 2014 the Defendants withdrew the

appeal.

The application

5. In support of the application the Claimant filed two affidavits. The Claimant’s first affidavit

was filed on the 16th July 2014 ( “the first affidavit”) and the supplemental affidavit filed

on the 29th September 2014 (“the supplemental affidavit”).The grounds of the application

are that the Best order does not provide a period within which the Defendants are to comply

with the order for specific performance of the Agreement for Sale and the Defendants have

failed to comply with a request made in a letter dated 4th April 2014 by the Claimant’s

attorney at law to the Defendants attorney at law that they indicate their willingness within

10 days of the date of the letter to execute the Deed of Conveyance (“the letter”).

6. In opposition the Defendants filed an affidavit by the First Defendant on the 22nd October

2014 (“the Defendants affidavit”).

7. In the Claimant’s submissions he sought permission to file a further affidavit (“the further

affidavit”) which was attached to the submissions. In the further affidavit the Claimant

identified the present position of the property. He also sought permission to amend the

application to seek an abatement of the purchase price in the sum of $180,000.00 as

provided for by paragraph 20 of the Best judgment and to ensure that the Best order is

given full effect by directing the Defendants to either provide proper access to the property

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or pay the costs of clearing and repairing the access road as per an invoice attached to the

further affidavit.

8. The submissions on the application were on the Court’s jurisdiction, preliminary objections

and the substantive issue for determination which I will now address in turn.

The Court’s jurisdiction

9. It was argued by Counsel for the Defendants that although the application was made

pursuant to Part 43.9 CPR the nature of the order which the Claimant is seeking is in effect

a mandatory order that the Defendants execute a Deed of Conveyance at some unspecified

time that is dependent on the Claimant delivering the Deed of Conveyance. As such the

Claimant is asking the Court to re-write the Agreement for Sale by removing the “time is

of the essence” provision and the Court does not have any procedural jurisdiction to do so

under Part 43.9 CPR which deals with the time for compliance with a judgment or an order

or under the inherent jurisdiction of the Court. Counsel for the Defendants also argued that

the conjoint effect of Part 43.9 CPR, the Best order and the time of the essence provision

in the Agreement for Sale meant that the time for the completion of the Agreement for Sale

was fixed for the 27th February 2013 which was the date of the expiry of the stay of

execution and no intervention under Part 43.9 CPR is necessary.

10. In response, it was argued on behalf of the Claimant that the application is to vary the order

of Best J to set a specific time to complete the Agreement for Sale since the Best order

failed to make provision to do so.

11. Part 43.9 CPR makes provision for the time to comply with a judgment or order. It

provides:

“A party must comply with a judgment or order immediately, unless-

(a) The judgment or order specifies some other date for compliance;

(b) The court varies the time for compliance; or

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(c) When the Claimant enters judgment in default under Part 12 or

judgment on an admission under Part 14, he specifies a different time

for compliance.”

12. In my view it is clear from Part 43.9 CPR that a judgment or order is to be complied with

immediately or at any other time as set out in the order. It also gives the Court a discretion

based on the circumstances of the case to vary the time for compliance of an order.

Therefore if the Best order did or did not fix a time for the completion of the sale and the

parties did not complete, a party can still apply to the Court under Part 43.9 CPR to vary

the time for completion.

13. Further, paragraph 14 of Halsbury’s Laws of England 1 describes the inherent jurisdiction

of the Court as:

“The jurisdiction of the court which is comprised within the term “inherent” is that

which enables it to fulfil itself, properly and effectively, as a court of law. The

overriding feature of the inherent jurisdiction of the court is that it is a part of procedural

law, both civil and criminal, and not a part of substantive law; it is exercisable by

summary process, without a plenary trial; it may be invoked not only in relation to

parties in pending proceedings, but in relation to any one, whether a party or not, and

in relation to matters not raised in the litigation between the parties; it must be

distinguished from the exercise of judicial discretion; and it may be exercised even in

circumstances governed by rules of court. The inherent jurisdiction of the court enables

it to exercise (1) control over process by regulating its proceedings, by preventing the

abuse of process and by compelling the observance of process, (2) control over persons,

as for example over minors and mental patients, and officers of the court, and (3)

control over the powers of inferior courts and tribunals.

In sum, it may be said that the inherent jurisdiction of the court is a virile and viable

doctrine, and has been defined as being the reserve or fund of powers, a residual source

of powers, which the court may draw upon as necessary whenever it is just or equitable

to do so, in particular to ensure the observance of the due process of law, to prevent

improper vexation or oppression, to do justice between the parties and to secure a fair

trial between them.”

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14. What is a party to do if there is disagreement on the interpretation of an order pronounced

by the Court which is so fundamental that it can deny the aggrieved party from enforcing

the order? Based on the Defendant’s submissions it appears that the aggrieved party has no

recourse. I cannot agree with this position. In my view, in addition to the Court’s discretion

under Part 43.9 (b) CPR the Court also has an inherent jurisdiction to vary the terms of the

Best order to give effect to it.

Preliminary objections

15. There were three preliminary objections raised in the Defendants’ submissions namely (i)

late service of submissions; (ii) the further affidavit; and (iii) exhibits “MP3” and “MP5”

and certain paragraphs of the first affidavit and the supplemental affidavit.

Late service of submissions

16. Counsel for the Defendants objected to the late service of the submissions on the basis that

it was unjust and unfair to the Defendants and not in keeping with the proper administration

of justice. On the 8th March 2016 I granted the Claimants permission to serve the

submissions on the 1st February 2016. Therefore this is no longer an issue to be addressed.

The further affidavit

17. The Defendants objected to the admission into evidence of the further affidavit on the basis

that the Court did not give permission to file it and it contained matters which the Claimant

and his attorney at law were aware of at the hearing on the 14th December 2015. Counsel

for the Defendants argued that the new matters contained in the further affidavit contained

are prejudicial to the Defendants who have not been given the opportunity to respond to it.

They also objected on the basis that it is contrary to the overriding objective of the CPR

because it attempts to place the Claimant in a better position than the Defendant and to

give him an unfair tactical advantage ; it increases expense because the Defendants will

have to answer the allegations in it if the Court permits it to stand; it causes further delay;

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it is inappropriate strain on the Court’s resources since it contained information which the

Claimant and his attorney were aware of at the hearing on the 14th December 2015.

18. In response Counsel for the Claimant submitted that it was wrong for the Defendants to

assume that he was relying on the further affidavit in support of the application since it was

clear from his submissions that he was seeking the Court’s permission to do so.

19. The further affidavit states that the Defendants have not provided him with receipts or other

evidence to show that all rates and taxes in respect of the property are paid even though

there are contending that the Agreement for Sale should have been completed following

the pronouncement of the Best order. It also gives an updated position on the access road

to the property where he states that it has become impassable. It annexed photographs of

the said roads and a quotation from a contractor with the cost for the work needed to allow

the Claimant access to the property. The basis for the further affidavit is the relief sought

by the Claimant when he sought permission to amend the application to seek an abatement

in the sum of $180,000.00 in order to give effect to the Best order.

20. I am not prepared to give the Claimant permission to amend the application and to rely on

the further affidavit since in my view the latter raises new matters which are prejudicial to

the Defendants who did not have the opportunity to respond to the new evidence in the

further affidavit. While the further affidavit introduced information received in January

2016, there is no good explanation for not putting the same information before the Court

at the hearing on December 2015, given that the application was filed in July 2014.

MP 3 and MP 5

21. The third preliminary objection made by Counsel for the Defendants concerned exhibits

“MP 3” and “MP 5” and the certain parts of the Claimant’s first affidavit and the

supplemental affidavit.

22. The objections to the Claimants first affidavit were on the emails exhibited as “MP3”, the

letter exhibited as “MP 5” and paragraphs 5, 6 and 7.

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23. The emails in contention are dated 29th November 2012 (2); 7th December 2012; 28th

August 2013; 30th August 2013 (5); 10th October 2013; 8th November 2013; 24th February

2014. All the emails on behalf of the Claimants were written by Mr. Otway and the

responses, which consisted mainly acknowledgments, were by Mr. Morgan’s Assistant.

The nature of the emails from Mr. Otway to Mr. Morgan were Mr. Otway’s attempts to

agree the issue of costs of the action and to take steps to deal with the specific performance

of the Agreement for Sale by informing Mr. Morgan that Mr. David Clarke is preparing

the Deed of Conveyance. The extent of any response from Mr. Morgan was from his

Assistant acknowledging receipt of the emails and indicating to Mr. Otway that Mr.

Morgan has been in receipt of them.

24. “MP 5” is the letter which Mr. Otway referred to Mr. Morgan’s alleged objection to his

clients being required to convey the property. I will set out the text of the letter here since

I will refer to its contents later.

“7th April 2014

Mark Morgan

Fitzwilliam, Stone

Furness-Smith & Morgan

Attorneys-at-Law

Nos. 48-50 Sackville Street

Port-of-Spain

Dear Sir,

Re: High Court Action No. 1613 of 1997 – Michael Perez v Buddie and Kamlyn

Miller

I refer to our recent telephone conversation when you took the position for the first time

since the Order of Justice C. Best dated 16th January 2013 that your clients are not required

to convey the subject property to my client, notwithstanding the terms of that Order, copy

of which is attached for your ease of reference, on the basis that the time for compliance

therewith is the same as is provided for in the Agreement for Sale dated 9th August 1994.

The latter is of course dated some 19 years prior to the date of that Order, and the time for

completion set by it, namely 180 days from its date, has expired long years ago. The learned

Judge did not fix any time for completion of the transaction but his order clearly

contemplated setting a new time frame and no doubt he expected that the parties would

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have come to an agreement on same so as to avoid the need for an application to the Court

under Part 43.9 of the Civil Proceedings Rules, 1998, as discussed in greater detail below.

Further, your clients filed a Notice of Appeal since 25th February 2013 and no steps have

been taken to pursue those proceedings, nor have you indicated any intention to withdraw

them. My client is therefore entitled to apply under Part 64.13 of the Civil Proceedings

Rules to have that appeal struck out. I have communicated with you on many occasions by

e-mail and by letter since the date of that Appeal and copies of all of that correspondence

are attached. I have no record of receiving any response in writing to any of those items,

save for assurances by Your Assistant that my correspondence would be brought to your

attention.

My client’s position is that given the filing of your clients’ Appeal it was reasonable and

proper for him to put on hold any steps towards having a Deed of Conveyance in his favour

completed even if your clients had been willing to execute any such document, since the

outcome of that appeal could possibly have invalidated the transaction thereby negating

the considerable expense that my client would necessarily have incurred in the preparation,

stamping and registration of the deed. I refer you in this regard to the last paragraph of my

e-mail to you of 29th November 2012, copy of which is also attached. You have not

indicated at any time your clients’ willingness to execute a Deed of Conveyance and the

filing of the appeal suggests that they would not be interested in doing so until its outcome,

assuming it might be in my client’s favour.

You are referred furthermore to Part 43.9 of the Civil Proceedings Rules, 1998, and the

learning under the equivalent English Rule (see in this regard Rule 40.11 and paragraphs

sc45.6 and sc45.61 of 2010 “White Book”) which make it clear that where an Order such

as the one made by Justice Best here does not specify a date for compliance with it then an

application may be made to the Court to fix a time in this regard and to provide also that

should your clients fail to execute a Deed in favour of my client then the Registrar of the

Supreme Court could do so in their place.

Therefore, I reject your position that the time for compliance with the learned Judge’s order

has expired. Since it now seems that your clients’ appeal was not filed with any serious

intention of challenging the order my client will now seek to enforce the order. My Client

had consulted Mr. David Clarke of J.D. Sellier & Co. To prepare the deed of conveyance

in this matter and I have been advised by Mr. Clarke that he requires the following

information and documents:-

1) a reference to the registration number of the Deed to which the general survey plan of

the development is attached;

2) a copy of the standard form Deed for the development (if any).

Mr. Clarke has informed me his firm would have to carry out title searches for which he

will require at least 30 days during which time the other documents requested should be

provided to him and the form of deed finalised.

I have requested Mr. Clarke to contact you directly to finalise arrangements for the above.

I trust that it will not be necessary to file either of the applications under Parts 64.13 and

43.9 ad above-mentioned and look forward to receiving your confirmation of this, or at

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least to you stating your clients’ definitive position in writing on the matters raised herein

and as regards the costs awarded by Justice Best, and I refer in this regard in particular to

my letter to you dated 24th February 2014 (a copy of which is enclosed), within the next 10

days from the date of this letter to avoid further Court proceedings as aforesaid.

Sincerely,

Robin Otway

Robin Otway

cc. W.D. Clarke

Michael Perez

Encs:”

25. The Defendants submitted that none of the email communications comprising “MP 3” are

relevant to the application. They objected to “MP 3” and “MP 5” on the basis that they

contain evidence of Counsel in the matter and it offends against clause 35 Part A of the

Code of Ethics to the Legal Profession Act2 (“the LPA”). They also submitted that because

they are Counsel to Counsel communication the imbalance cannot be addressed without

Mr. Morgan giving evidence which in compliance with the Code of Ethics he cannot do.

Another objection to exhibits “MP 3” and “MP 5” was the Claimant has no direct

knowledge of the information contained in “MP 3” and “MP 5” as such the requirements

under Part 31.3 (2) CPR have not been satisfied since the Claimant does not state in the

first affidavit that Mr. Otway informed him that he sent the emails that are attached to “MP

3” and “MP 5” and in the supplemental affidavit.

26. In response Counsel for the Claimant argued that Mr. Otway’s name appeared on all

documents filed with the Court as both Instructing Attorney and Counsel and all the

exhibits referred to in “MP 3” were written in Mr. Otway’s capacity as instructing attorney

at law. He also submitted that the correspondence were addressed to Mr. Morgan who also

acted in both capacities of instructing attorney at law and Counsel which the Court records

including the Appeal proceedings will indicate. The notice from the Court of Appeal which

is exhibit “MP 4” in the first affidavit is addressed to Mr. Morgan and Mr. Otway

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personally. If Mr. Morgan was not acting as both instructing attorney at law and Counsel

he should have re-directed the correspondence to the appropriate person or he should have

replied which is required by Part A rule 42 of the Code of Ethics of the LPA.

27. He also submitted that clause 35A of the Code of Ethics allows formal matters such as that

contained in the correspondence in exhibits “MP 3” and “MP 5” to be put into evidence by

an attorney at law on behalf of his client. In any event Mr. Otway has not sought to “appear

as a witness”, since only the Claimant has filed affidavits in support of the application.

28. With respect to the contents of the emails, Counsel for the Claimant argued that all relevant

statements of fact are repeated in the first affidavit and their contents speak for themselves

without the need for anyone to testify to redress any imbalance. He argued that in an

interlocutory or summary application such as the application, a party wishing to cross-

examine any witness ought to indicate what issues of fact in controversy he wishes to deal

with this was not done in the application. Further, he added that the reasons for the Best

judgment were made available on the 5th November 2012 and Best J who had retired was

subsequently called out to formally deliver his judgment on the 16th January 2013 when he

read it out. Therefore the timing of the emails is not in issue.

29. The Defendants objection to the contents of exhibits “MP 3” and “MP5” are in relation to

the relevance of the information contained therein to the application, the timing, and the

manner in which they are placed before the Court. In my view, those objections are not

significant to warrant a striking out of the exhibits “MP 3” and “MP 5” for the following

reasons.

30. Firstly, the fact of the emails has not been disputed by the Defendants. Indeed at paragraph

10 of the Defendants affidavit they acknowledged and treated with the correspondence in

exhibits “MP3” and “MP5” when they stated:

“10. As can be seen from the correspondence, neither Mr. Perez nor his Attorney

raised the question of completion until after it became clear that my wife and I were

not pursuing the Appeal because Mr. Perez had failed to complete.”

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31. Secondly, there is no basis under the LPA to strike out “MP 3” and “MP 5”. Clause 35 of

Part A of the Code of Ethics of the LPA provides :

“35 (1) An Attorney–at-law should not appear as a witness for his own client except

as to merely formal matters or where such appearance is essential to the ends of

justice.

(2) If an Attorney-at-law is a necessary witness for his client with respect to matters

other than such as are merely formal, he should entrust the conduct of the case to

another Attorney-at law of his client’s choice.”

32. The emails exhibited as “MP 3” and “MP 5” contained correspondence written by Mr.

Otway as instructing attorney at law for the Claimant to Mr. Morgan who was also on

record as instructing attorney at law for the Defendant concerning the Best order. There

was no evidence from the Defendants disputing that Mr. Morgan acted as both their

instructing attorney at law and Counsel in the matter.

33. In the first e-mail in exhibit “MP 3” dated the 29th November 2012 Mr. Otway initially

suggested that the costs of the High Court action be agreed. In my view, these facts did not

need to be verified by the Claimant or even Mr. Otway who wrote the email. There was

nothing unusual about the timing of this first email since it was not disputed by the

Defendants that the Reasons for the Best judgment were made available on 5th November

2012, and that Best J was called out subsequently to formally deliver the Best judgment on

16th January 2013. The Defendants have not stated that the Reasons in the Best judgments

made available on the 5th November 2012 were different in substance from the Best

judgment delivered on the 16th January 2013.

34. The other e-mails in “MP3” contains “merely formal matters” such as referring specifically

to prior written Reasons for the Best judgment which a scanned copy was sent to Mr.

Morgan and reminders that there was no response to previous emails.

35. In “MP 5” Mr. Otway states that while the Best order did not set out a time for completion

if the parties did not arrive at a consensus he would make an application to have the Court

set a time for completion. He also indicated to Mr. Morgan that since the filing of the appeal

the Defendant did not take steps to prosecute it and as such his client is entitled to apply

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under Part 64.13 CPR to have the appeal struck out. Mr. Otway also indicated that despite

his several communications to Mr. Morgan he has not received any response. He then states

his client’s position that given the filing of the appeal that it was reasonable and proper to

put a hold any steps to have the Deed of Conveyance executed even if the Defendants are

willing to complete since if the Best order is reversed on appeal it would negate the

transaction causing considerable expense to the Claimant. He referred to the learning on

Part 43.9 CPR and his client’s position to enforce the Best order. He then requested certain

information from the Defendants for Mr. David Clarke of JD Sellier, Attorneys at law in

preparation for the finalization of the documents to complete the agreement.

36. In my view, all the information contained in the correspondence which form exhibits “MP

3” and “MP 5” are typical of correspondence from one instructing attorney to another

which under rule 42 Part A of the Code of Ethics of the LPA Mr. Morgan was under a duty

to reply to promptly since all the correspondence were from Mr. Otway to him concerning

enquiries of his clients, the Defendants. Further I am satisfied that all relevant statements

of fact are repeated in the first affidavit.

37. Further, the Defendant’s submission that exhibits MP 3 and MP 5 should be struck out on

the basis that it is Counsel’s evidence and the only proper way to address this imbalance is

to strike them out is without merit. There was no evidence that Mr. Morgan was acting

only as Counsel for the Defendants in the matter. Exhibit “MP4” which is the notice of

appeal demonstrates that he was acting both as instructing attorney at law and Counsel. In

the Defendants affidavit the facts they have disputed are at paragraph 5 where they have

stated that there is no mortgage on the property, at paragraph 7 that they did not receive

any correspondence from the Claimant or his attorney suggesting that the agreement for

sale not be completed in order to save costs, at paragraph 8 that the Claimant has the ability

to complete the sale, and at paragraph 9 that the appeal was withdrawn with no orders as

to costs and not dismissed as stated by the Claimant. The Defendants did not indicate that

they wished to cross-examine the Claimant on the issues of fact they disputed. The said e-

mails and the letter at “MP 5” speak for themselves and therefore there is no need for

anyone to testify to redress a supposed “imbalance”.

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38. In any event the facts and circumstances in Hosein Construction v 3 G Technologies3

which was referred to by the Defendants in support of their submission that Mr. Otway

cannot be a witness in this matter can easily be distinguished from the facts in the

application. In Hosein Construction v 3 G Technologies the instructing attorney at law

was a director of the defendant and had given a lengthy witness statement which was

critical in the determination of the issues in the trial. Counsel in that matter was also a

director of the defendant and the husband of instructing attorney. He was allowed to

continue as Counsel at the trial. In this matter there was nothing in the correspondence

which was in the nature of evidence. The nature of the correspondence was typical from

one instructing attorney to another.

39. Thirdly, the information contained in exhibits “MP3” and “MP5” are relevant since they

set out the steps taken by the Claimant to comply with the Best order from the time the

Claimant became aware of the Reasons in the Best judgment. Again the Defendants

affidavit did not dispute the time they became aware of the Reasons in the Best judgment.

40. The Defendants also objected to paragraph 5, part of paragraph 6 and paragraph 7 of the

Claimant’s first affidavit for non-compliance with Part 31.3 CPR. Paragraphs 5, 6 and 7

state :

“5. While the said Appeal was pending my Attorney-at-law Mr. Robin Otway,

wrote several e-mails (9 in all) to Mr. Mark Morgan of the firm of Fitzwilliam,

Stone, Furness-Smith & Morgan, Attorneys at law for the defendants over the

period 2012 to February 2014 and I am informed by Mr. Otway and verily

believe that Mr. Morgan himself never responded thereto, although his

Assistant did communicate on his behalf. True copies of the bundle of e-mails

exchanged in this respect is hereto annexed and collectively marked.

6. Shortly before the receipt of the Notice dated 23rd April 2014 from the Court of

Appeal, true copy whereof is attached and marked “MP 4” fixing the date

mentioned in paragraph (3) hereinabove when the Appeal proceedings were

3 CV 2008-00560

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dismissed because of the appellants’ failure to prosecute same and non-

compliance with the relevant rules in that regard, in the expectation that this

would happen my Attorneys-at-Law wrote to the defendants’ and Attorneys-at-

Law by letter dated 7th April 2014 which “inter alia” called upon the defendants

to indicate their willingness to execute a Deed of Conveyance of the Property

pursuant to the said Order. I am informed by Mr. Robin Otway and verily

believe that he had with Mr. Morgan the telephone conversation referred to in

the first paragraph of that said letter, a true copy whereof is hereto annexed and

marked “MP 5”, and that to date no response to that said letter has been

received.

7. I have engaged Mr. William David Clarke of the firm of J.D. Sellier &

Company to prepare a Deed of Conveyance pursuant to the said Order and he

has also written on my behalf by letter dated 8th April 2014 to the defendants’

Attorneys-at-Law seeking information as regards the defendants’ title to the

Property, and he to informs me and I verily believe that he has received no

response to that letter to date despite several calls to the offices of the

defendants’ Attorneys-at-Law and messages left with the Assistant to Mr. Mark

Morgan.”

41. The Defendants objected to part of paragraph 4 of the supplemental affidavit for non-

compliance with Part 31.3 CPR. It stated:

“4. I have engaged Mr. David Clarke , a partner of the firm J.D. Sellier & Co , to

prepare a Deed of Conveyance of the Property to me in accordance with the said

Order, and attached hereto and marked “MP7” is a draft of Mr. Clarke’s Deed

which was prepared pending the completion of his title searches, These however so

far revealed that there is in existence and effect an unreleased, so far, at least as the

Property is concerned, Deed of Mortgage registered as number 3703 of 1987 by the

defendants in favour of Republic Finance and Merchant Bank Limited.”

42. Part 31.3 CPR provides that:

“31.3 (1) The general rule is that an affidavit may contain only such facts as

the deponent is able to prove from his own knowledge.

(2) However, an affidavit may contain statements of information and

belief –

(a) where any of these Rules so allows; and

(b) Where it is for use in any procedural or interlocutory

application or in an application for summary judgment,

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provided that the source of such information and the ground

of such belief is stated in the affidavit.

(3) The court may order that any scandalous, irrelevant or otherwise

oppressive matter be struck out of any affidavit.

(4) No affidavit containing any alteration may be used in evidence

unless all such alterations have been initialed by the person before

whom the affidavit was sworn.”

43. While I agree with the Defendants that the Claimant did not comply with Part 31.3 CPR,

the Defendants did not raise these objection in the Defendants affidavit. Indeed they dealt

with the matters raised at paragraphs 5, 6 and 7 of the affidavit and paragraph 4 of the

supplemental affidavit where they disputed that there is a mortgage on the property and the

reason for the ending of the appeal. In my view the mere technicalities raised by the

Defendants are not significant to warrant a striking out of the substance of the paragraphs.

The Substantive issue

44. The substantive issue for determination is: did the Best order set a time for the Agreement

for Sale to be completed?

45. In support of the application the Claimant argued that the Best order did not fix a date for

the specific performance of the Agreement for Sale; the Defendants have failed to comply

with the Claimant’s request dated the 4th April 2014 to indicate their willingness to execute

the Deed of Conveyance to complete the sale within 10 days after the date of the letter.

Therefore it lies within the equitable jurisdiction of the Court to make the order requested

in the application since it would give effect to the Best order and it was incumbent on the

Defendants to satisfy the Court that they were ready, willing and able at all material times

to complete the Agreement for Sale.

46. Counsel for the Defendant disagreed with the position adopted by the Claimant. He

responded that the conjoint effect of Part 43.9 CPR, the Best order and the Agreement for

Sale is that the time for its completion was 42 days after the Best order which was the 27th

February 2013. The Claimant cannot rely on the equitable jurisdiction of the Court to grant

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a new order for specific performance since it is not available in circumstances where a

party has failed to comply within a “time of the essence clause” and even if it was available

it should not be granted to the Claimant since he has not come to the Court with clean hands

for various reasons which I will identify later.

47. The Best order provided:

“ 1. This court grants Specific Performance of the Agreement for sale of all and

singular that parcel of land known as Lot 9 Timshel Park, Maracas Valley

in the Ward of Tacarigua comprising 1721.6 square meters being portion of

the lands described in the schedule to Deed No 15570 of 1987.

2. The Costs of this matter are to be taxed and paid by the Defendants to the

Claimant certified fit for one Counsel; and

3. There be a stay of execution of forty-two days from today’s date.”

48. The role of the Court in interpreting the Best order is to give effect to what Best J intended.

To do so there are several rules of interpretation which may be applied. In this regard the

learning in the Halsburys Laws of England 4th ed Vol 44 (1) is instructive. While I have

noted that Halsburys examine the rules of interpretation in the context of statutes in my

view the principles are still good and applicable law to resolve the issue in the application.

49. It is a fundament rule that when the Court is interpreting legislation or an order it strives to

ascribe a meaning to reflect the intention of the maker of the document and to do so the

Court must first look to the ordinary meaning of the words of the section. Halsbury’s

Laws of England 4 describes the plain meaning rule as :

“ It is a rule of the common law, which may be called the plain meaning rule, that

where, in relation to the facts of the instant case, the enactment under inquiry is

grammatically capable of one meaning only and, on an informed interpretation of

the enactment, the interpretative criteria raise no real doubt as to whether the

meaning is the one intended by the legislator then the legal meaning of the

4 4th ed Vol 44 (1) at paragraph 1391

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enactment is taken to correspond to that grammatical meaning but that in any other

case the basic rule of statutory interpretation is to be applied.”

50. What was the plain and ordinary meaning of the Best order? The Claimant says that the

plain meaning of the Best order is that it did not grant a period within which for the

Agreement for Sale to be completed. It only granted a stay of execution of the completion

of the Agreement for Sale.

51. The Defendants states that the Best order stated a time to complete the Agreement for Sale.

In their view, since the Agreement for Sale made time of the essence, the Claimant was

required to complete the sale upon the pronouncement of the Best order which was the 16th

January 2013. However this time was delayed by 42 days since Best J granted a stay of

execution of the said period. Therefore upon the expiration of the 42 days the Claimant

was required to complete the sale even if there was a pending appeal since a notice of

appeal does not act as a stay on proceedings.

52. It was submitted on the Defendants behalf that in the Agreement for Sale the issue of time

being of the essence was raised by the Defendants at the trial. It was addressed at page 16

of the Best judgment and therefore it must or ought to have been in the Claimant’s

contemplation when Best J ordered that there be specific performance of the Agreement

for Sale. It was their view that the material language of paragraph 1 of the Best order is

“this Court grants specific performance of the Agreement for Sale.” Clause 11 of the

Agreement for Sale expressly states that in the agreement any extension, modification or

variation of the terms time shall be of the essence. Part 43.9 CPR provides that a party must

comply with a judgment or order immediately unless the judgment or order specified some

other date for compliance. In this case by ordering a stay, the Court specified another date

for compliance namely 42 days after the 16th January 2013 (i.e. on the 27th February 2013).

It was their position that the conjoint effect of Part 43.9 CPR, the time of the essence

provision in the Agreement for Sale and the full terms of the Best order meant that the

Agreement for Sale would have had to be completed by the 27th February 2013 since the

Best order delayed completion until the 27th February 2013.

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53. What is the plain and ordinary meaning of the Best order? According to paragraph 1 of the

Best order the Defendants were directed to complete the Agreement for Sale. The evidence

of both the Claimant and the Defendants was that they understood this to be the effect of

paragraph 1. There was no expressed time set in paragraph 1 of the Best order for

completion of the Agreement for Sale. However, based on paragraph 3 of the Best order

paragraph 1 it could not be enforced until the expiration of the stay of execution which was

until 42 days after the Best order namely 27th February 2013. Therefore after the expiration

of the 42 days there was no impediment stopping the Claimant from enforcing paragraph

1 of the Best order and there was no expressed provision stating that it could not be

completed any time after the 27th February, 2013.

54. In my view the plain/ordinary meaning of the Best order was that it did not expressly state

a time to complete the Agreement for Sale but rather it did the opposite since it implicitly

stated that it could not have been completed before the 27th February 2013. The evidence

from both parties demonstrated that they understood the plain/ordinary meaning of the Best

order. At paragraphs 3 and 4 of the first affidavit the Claimant stated that the Defendants

filed an appeal on the 25th February 2013 against the Best order which was dismissed by

the full Court of Appeal on the 25th June 2014. He did not take steps pending the

determination of the appeal to enforce the Best order since he was advised by his attorney

at law that it is standard practice not to do so pending an appeal and that in the event that

the Best order was reversed by the Court of Appeal he would have incurred the costs of

preparing and registering a Deed of Conveyance in vain and that the Deed of Conveyance

would have to be revoked by a subsequent deed which is additional costs.

55. At paragraph 4 of the Defendants affidavit they confirmed that after they gave their

attorneys at law instructions to appeal the Best order which they did on the 25th February

2013. They also considered whether they should instruct their attorneys at law to apply for

a stay of execution of the Best order pending the appeal or to go ahead with the completion

of the sale on the 27th February 2013 which was the expiration of the 42 days stay of

execution in the Best order. They decided against applying for the stay of execution on the

basis that if they were successful on appeal then the Claimant would have to re-convey the

property to them. They were therefore prepared to complete the Agreement for Sale.

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However there was no evidence in the Defendants affidavit that they communicated their

readiness to complete the Agreement for Sale to the Claimant. I have to assess the

credibility of the Defendants evidence against that of the Claimant’s whose attorney at law

was communicating with the Defendants attorney at law from November 2012 to April

2014 on the steps being taken by the Claimant concerning the Best order. In my view when

I compare the approach taken by both the Claimant and the Defendants it appears that the

Defendants position that they were ready to complete the Agreement for Sale after the 27th

February 2013 is lacking in credibility.

56. On the other hand, even if I were to accept the Defendants interpretation of the Best order

which is that the date fixed for the completion of the sale was the 27th February 2013 and

that time was of the essence the only reference in the Best judgment to the time of the

essence argument was at pages 16 and 17 which stated:

“Though not expressly raised by the claimant, the defendant submits that the

proposition that time was not of the essence is defeated on the following grounds:

1. The issue was not raised in the re-amended Statement of Claim and

therefore does not form part of the lis between the parties. Furthermore,

it is irrelevant to the matter at hand.

2. Clause 11 of the Agreement for sale provides that time shall be of the

essence and the Agreement specifically makes the extended time of the

essence and there was no need for it to be expressly done in any agreed

extension.

3. As a matter of law, where time is initially made of the essence it

continues to remain like that and no specific provision need be made to

this effect in any agreement extending time.”

57. The Court did not address the issue or make a finding of whether in the circumstances of

the instant case the time of the essence clause in the Agreement for Sale was extended.

Therefore I cannot agree with the submissions made by Counsel for the Defendant that the

time of the essence clause was within the contemplation of the Court when the Best order

was pronounced. In my view the Defendants cannot rely on the time of the essence clause

in the Agreement for Sale to defeat the plain and ordinary meaning of the Best order since

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there was no evidence that it was within Best J’s contemplation that this clause was to still

have effect after the Best order.

58. Further, if it is the Defendants position that time was of the essence after the 27th February

2013, they were ready to complete the Sale and the onus was on the Claimant to take steps

to do so then one is left to wonder why their attorney, Mr. Morgan who had been in receipt

of 12 emails from the time they were aware of the Reasons of the Best judgment in

November 2012 (for the period 29th November 2102 to 24th February 2014) did not see it

fit to reply to any of these emails setting out the Defendants position. While I agree with

the Defendants that the onus was on the Claimant to take steps to complete the sale, it was

clear from the correspondence during that period the steps he had taken and the reasons for

taking them.

59. The interpretation which the Defendants have adopted appears to be a strict interpretation

of the Best order. At paragraph 1382 of Halsburys the learned authors described the

approach a Court should take where there is a strict versus a liberal interpretation. It states:

“1379. Strict and liberal construction. Where the application of one of the opposing

constructions of an enactment would produce an adverse result (that is one detrimental

to the subject or the state), that is a factor against that construction, and indicates that

the court should curtail the application of the enactment, narrowing its operation and

effect, a process known as strict construction. Where the application of one of the

opposing constructions of the enactment would produce a beneficent result (that is one

beneficial to the subject or the state), that is a factor favouring that construction, and

indicates that the court should widen the application of the enactment, a process known

as liberal construction.”

60. It was not in dispute that under Part 60.3 CPR, an appeal does not act as a stay on the

proceedings and there was no evidence of any standard practice that a notice of appeal can

be treated as a stay of execution of an order. However, if the interpretation which is

suggested by the Defendant is taken it would mean that the Claimant who was successful

at the trial would be deprived of the benefit of enforcing the Best order.

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61. It would also mean that the Court would condone the conduct of the Defendants, in

particular the conduct of attorney at law for the Defendants. The undisputed facts in this

matter are that after the Best Order Mr. Otway communicated with Mr. Morgan on several

occasion concerning steps to give effect to the Best order. Mr. Morgan did not respond

despite having received the said communication. The Defendants affidavit has not dispute

those matters. The Defendants having filed an appeal and instructing attorney not having

received any response from Mr. Morgan in my view acted reasonably by assuming that Mr.

Morgan’s silence was a tacit acquiescence of the positions articulated in the Claimants

emails and in particular the position that the Claimant would not pursue completing the

Agreement for Sale pending the appeal.

62. In light of the aforesaid reasons, I have concluded that the Best order did not fix a time for

completion of the Agreement for Sale. It did the opposite since it fixed a time when it

could not have been completed. However, even if the Best order had fixed the time for the

completion of the sale as the 27th February 2013, as argued by the Defendants, there was

no finding by Best J that time was of the essence. In any event it was reasonable for the

Claimant to conclude based on the Defendants conduct that time was not of the essence

while the appeal was pending. The Court still has the power under Part 43.9 CPR and its

inherent jurisdiction to vary the Best order and set a date for completion of the sale.

The equitable jurisdiction of the Court

63. Although I have found that the Court has the power to vary the Best order to give effect to

it I will address the Court’s power to remedy a wrong under its equitable jurisdiction since

this issue was addressed by both parties in their written submissions. It was submitted on

behalf of the Claimant that he relies on the maxim that equity does not allow the Court to

act in vain and that “equity will not suffer a wrong to be without a remedy”

64. In response the Counsel for the Defendants argued that the Claimant cannot appeal to the

Court’s equitable jurisdiction since he has not approached the Court with “clean hands”. In

support of this contention they submitted that the Claimant relied on an unknown and

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unproven practice of not enforcing orders pending an appeal; he took the deliberate

decision not to complete on the 27th February 2013 because he did not want to risk paying

the stamp duty and closing costs ; he failed to obtain the Defendants agreement to a

postponement of the completion of the Agreement for Sale but instead unilaterally decided

not to complete; he failed to inform the Defendants of his unilateral decision to postpone

the completion of the Agreement for Sale until after the appeal; he knew by April 2014

that the Defendants considered that they were not obliged to complete the Agreement for

Sale and he did nothing that would cause the Defendants to continue the appeal; he waited

until after the Defendants had withdrawn the appeal and so had irrevocably compromised

their position before he filed the application; he did not tender the purchase price, the Deed

of Conveyance or provide any evidence that he was able and willing to complete the

Agreement for Sale and he has not been frank and forthcoming with the Court on when he

engaged Mr. Clarke to act as his conveyancer.

65. In Westdeutsche Landesbank Girozentrale v Islington London Borough Council

Appellant5, at pages 695- 696 the role of the equitable jurisdiction of the Court was

described as:

“I turn to the question whether the equitable jurisdiction can be exercised in aid of

common law remedies such as, for example, a personal remedy in restitution, to

repair the deficiencies of the common law. Here I turn at once to Snell’s Equity,

29th ed. (1990), p. 28, where the first maxim of equity is stated to be that ‘Equity

will not suffer a wrong to be without a remedy’. The commentary on this maxim in

the text reads:

‘The idea expressed in this maxim is that no wrong should be allowed to go

unredressed if it is capable of being remedied by courts of justice, and this

really underlies the whole jurisdiction of equity. As already explained, the

common law courts failed to remedy many undoubted wrongs, and this

failure led to the establishment of the Court of Chancery. But is must not be

supposed that every moral wrong was redressed by the Court of Chancery.

The maxim must be taken as referring to rights which are suitable for

judicial enforcement, but were not enforced at common law owing to some

technical defect.’

5 [1996] A.C. 669

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To this maxim is attributed the auxiliary jurisdiction of equity. The commentary

reads:

‘Again, to this maxim may be traced the origin of the auxiliary jurisdiction

of the Court of Chancery, by virtue of which suitors at law were aided in

the enforcement of their legal rights. Without such aid these rights would

often have been ‘wrongs without remedies’.”

66. Is the Claimant guilty of approaching the Court with “unclean hands” by his conduct after

the Best order? I will examine each of the allegations of “unclean hands” as suggested by

the Defendants. Two of the submissions are that the Claimant relied on an unknown and

unproven practice of not enforcing orders pending an appeal and he took the deliberate

decision not to complete on the 27th February 2013 because he did not want to risk paying

stamp duty and closing costs. Is this evidence of “unclean hands” or can this be construed

as the Claimant taking steps to assist the Court in furthering the overriding objective?

67. According to the Claimant during the period 25th February 2013 (the date of the notice of

appeal) to the 25th June 2014 ( the date of the dismissal of the appeal) he did not take any

steps to complete the Agreement for Sale since he was advised that there was a standard

practice not to do so pending an appeal in the event the Best order was reversed; he would

have incurred unnecessary costs of preparing and registering the Deed including the

additional expense of paying search and legal fees, stamp duty and registration charges and

the Deed would have to be revoked by a subsequent Deed with additional costs. Further

while the appeal was pending his attorney at law, Mr. Otway sent 9 emails to Mr. Morgan

over the period November 2012 to February 2014 concerning the Best order which Mr.

Morgan never responded to. Shortly before Mr. Otway received the notice dated 23rd April

2014 from the Court of Appeal fixing the hearing of the appeal Mr. Otway sent the letter

to Mr. Morgan calling upon the Defendants to indicate their willingness to execute the

Deed of Conveyance. He also engaged Mr. William David Clarke of the firm of JD Sellier

& Company to prepare a Deed of Conveyance pursuant to the Best order and on the 8th

April 2014 he wrote to Mr. Morgan seeking information of the Defendants title to the

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property and that Mr. Clarke also informed him that he did not receive a response to his

enquiry.

68. The Defendants evidence is that after they filed the appeal they decided against applying

for a stay of execution of the Best order since they would complete the sale and if they

succeeded on appeal it would have meant that the Claimant would have had to convey the

property to them. They were therefore prepared to complete and had everything ready to

complete. They also denied receiving any correspondence from the Claimant or his

attorney at law suggesting that they do not complete the Agreement for Sale in order that

he save costs of completing the purchase. When it became clear to the Defendants that the

Claimant had not completed the sale on the 27th February 2013 they instructed their

attorney at law to withdraw the appeal with no order as to costs. According to the

correspondence, the Claimant and his attorney at law only raised the question of

completion after it became clear that the Defendants were not pursuing the appeal which

in their view was deliberate and prejudicial to them.

69. I do not agree with the Defendants that the Claimant has approached the Court with

“unclean hands”. I cannot find fault with the Claimant’s approach in taking steps to

complete the Agreement for Sale. In my view the Claimant’s approach was consistent with

the overriding objective as set out in Part 1.1 CPR which states:

“(1) The overriding objective of these Rules is to enable the court to deal

with cases justly.

(2) Dealing justly with the case includes –

(a) ensuring, so far as is practicable, that the parties are on an

equal footing;

(b) saving expense;

(c) dealing with cases in ways which are proportionate to –

(i) the amount of money involved;

(ii) the importance of the case;

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(iii) the complexity of the issues; and

(iv) the financial position of each party;

(d) ensuring that it is dealt with expeditiously; and

(e) allotting to it an appropriate share of the court’s resources,

while taking into account the need to allot resources to other

cases.”

70. The duty of the parties according to Part 1.3 CPR is to help the Court further the overriding

objective which includes saving expense. The party who stood to incur the costs and

expense in having the Deed prepared while the appeal was pending was the Claimant. If

he lost on appeal he would have had to incur additional expense to re-convey the property.

He had already incurred costs of bringing the matter to trial, which took from 1997 to 2013,

a period of 16 years. When the notice of appeal was filed he had to incur additional costs

to defend the appeal. His attorney wrote Mr. Morgan on several occasions after receipt of

the Reasons for the Best judgment. Although the correspondence started from the 29th

November 2012 and the Best order was dated the 16th January 2013 there was no evidence

that the Reasons delivered on the latter date was in any manner different from that emailed

to the parties on the 9th November 2012. The Defendants have disputed being in receipt of

any information about Mr. Clarke of JD Sellier preparing the Deed of Conveyance but the

email dated the 29th November 2012 expressly informs Mr. Morgan of this. The actions

which the Claimant took were consistent with saving expense and assisting the Court in

furthering the overriding objective. The Claimants acted in a reasonable and responsible

manner upon being aware of the Reasons of the Best judgment and enquired if the

Defendants intended to appeal. There was no response by Mr. Morgan despite a reminder

email on the 9th December 2012. Yet again on the 28th August 2013, some 6 months after

the notice of appeal was filed Mr. Otway wrote to Mr. Morgan enquiring if the Defendants

intended to pursue the appeal. There was no response. In my view if fault is to be allocated

it should be to the attorney at law for the Defendant, Mr. Morgan who did not act in a

manner consistent with the overriding objective.

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71. The Defendant also submitted that further evidence of the Claimant’s “unclean hands” are:

that he failed to obtain the Defendants agreement to postpone the completion of the

Agreement for Sale and instead he unilaterally decided not to complete; the Claimant failed

to inform the Defendants of his unilateral decision to postpone the Agreement for Sale

until after the appeal; the Claimant knew by April 2014 that the Defendants considered that

they were not obliged to complete the Agreement for Sale, he did nothing that would cause

the Defendants to continue the appeal and he waited until after the Defendants had

withdrawn the appeal and had irrevocably compromised their position before he filed the

application.

72. Did the Claimant unilaterally decide not to complete the Agreement for Sale? According

to the Claimant’s evidence his understanding of the Best order was that he could not take

steps to complete the Agreement for Sale until after the 27th February 2013. However due

to the pending appeal he did not take steps to complete until after the notice of appeal was

withdrawn since he was advised that it was standard practice not to do so pending the

appeal as he would have incurred unnecessary costs in legal fees, stamp duty and other

costs associated with the preparation of the Deed of Conveyance to effect the transfer to

him if he was unsuccessful in defending the appeal. Therefore it appears that the Claimant

decided not to complete during the pending appeal from the 25th February 2013 to June

2014.

73. Did the Claimant inform the Defendants of the approach he had chosen to adopt?

According to the first email sent from Mr. Otway to Mr. Morgan on the 29th November

2012 which was when the Reasons for the Best judgment were made available to the parties

but before it was read out in Court on the 13th January 2013, Mr. Otway ends his email by

stating the following:

“Of course the Court ordered additionally that there be specific performance of the

Agreement for Sale here, and Mr. David Clarke of JD Sellier & Co is preparing the

required Deed of Conveyance. He has asked that I enquire of you specifically if

your clients intends to appeal this matter, for reasons I believe you will understand.”

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74. Again in an email dated the 13th August 2013 from Mr. Otway to Mr. Morgan, the former

enquired from the latter if the Defendants intended to pursue their appeal. There was no

response from Mr. Morgan to both enquiries.

75. Further, in the letter Mr. Otway referred to a telephone conversation between him and Mr.

Morgan where the latter indicated the Defendants objection to completing the Agreement

for Sale on the basis that the time for compliance was the same as that set out in it. Mr.

Otway pointed out that the time for completion in the Agreement for Sale which was dated

the 9th August 1994 was 180 days. He acknowledged that although the Best order did not

set a specific time for the completion it clearly contemplated setting a new time for

completion. He set out his position concerning the failure by the Defendants to take steps

to pursue their appeal and his client’s position for not pursuing the Deed of Conveyance

while the appeal was pending. He rejected the position taken by the Defendants and

indicated the Claimant’s intention to make an application pursuant to Part 43.9 CPR to

have the Court fix a time for completion of the Agreement for Sale. He also stated that it

appeared to him that the Defendants appeal was filed without any serious intention of

challenging the Best order. He indicated that Mr. Clarke who was retained to prepare the

Deed of Conveyance required certain information and that he required 30 days to complete

his searches and that Mr. Clarke will contact Mr. Morgan directly to finalise arrangements.

Mr. Otway ended the letter by indicating that if Mr. Morgan did not confirm his clients

position in writing on the matters raised in the letter within 10 days from the date of the

letter the Claimant would have no alternative but to approach the Court under Part 43.9

CPR for the Court to set a date to complete the Agreement for Sale. There was no evidence

from the Defendants that Mr. Morgan replied to the letter.

76. In my view the Defendants cannot deny that they were caught unaware for the reasons the

Claimant did not complete the Agreement for Sale since it must have been clear to them

that the only reason the Claimant’s attorney, Mr. Otway was making the enquiries about

the Defendants pursuing an appeal was to save costs in not completing the Agreement for

Sale during the pending appeal. Therefore I cannot agree that the Claimant’s approach was

in any way without notifying the Defendants. If anything can be drawn from the Defendants

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consistent lack of response was that they chose not to inform the Claimant of their approach

in terms of the appeal.

77. The Defendants evidence on this matter can be found at paragraphs 7,8 and 9 of the

Defendants affidavit which states:

“7. I further state that at no time did I receive any correspondence from Mr. Perez

or his Attorneys suggesting that we not complete the Agreement for Sale in order

that he save the costs of completing the purchase in what I considered to be the

inevitable event of the Judgment being overturned on Appeal.

8. I simply do not believe the claims made by Mr. Perez in his July and September

affidavits. The current state of affairs have been precipitated by Mr. Perez’s

continued and chronic inability to find the funds necessary to complete the sale and

I do not believe that he has the funds to do so on the February 27, 2014 completion

date. I note that nowhere in either the July or September Affidavits does he

unequivocally state that he was in a position to complete the sale on February 27,

2014. Indeed his reluctance to pay stamp duty, search and legal fees etcetera

suggests otherwise to me.

9. Once it became clear to me that Mr. Perez had not completed the sale, I instructed

our Attorneys not to pursue the Appeal and on June 25, 2014 they withdrew the

Appeal with no order as to costs. Mr. Perez statement at paragraph 6 of the July

Affidavit that the Appeal was dismissed is not correct.”

78. Based on the letter the Defendants were put on notice of the Claimant’s intention to file an

application pursuant to Part 43.9 CPR since April 2014. The Defendant knew by June 2014

that they were not served with any such application when they appeared in the Court of

Appeal in June 2014 and withdrew the appeal. In my view, they knew once they did not

agree with Mr. Otway’s interpretation of the Best order the application was going to be

filed. Therefore if they chose to withdraw the appeal with the full knowledge that the

application could be filed they cannot attribute the Claimant’s filing of the application after

they withdrew their appeal to any deliberate act on the Claimant’s part “to compromise”

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their position. Therefore I do not agree with the Defendants assertion that the timing of the

filing of the application can be seen as the Claimant acting in a less than forthright manner.

79. Another argument advanced on behalf of the Defendants to support their contention that

the Claimant has not approached the Court with “clean hands” is that the Claimants did not

tender the purchase price, the Deed of Conveyance or provide evidence that he was ready

and willing to complete the Agreement for Sale and that he has not been frank and forth

coming with the Court on when he engaged Mr. Clarke to act as his conveyancer.

80. The Claimant has not disputed that he did not tender the purchase price. His explanation

is that he was waiting to find out if the Defendants were serious about pursuing the appeal.

During the period November 2012 to April 2014 on two occasions Mr. Otway wrote to Mr.

Morgan indicating the Mr. Clarke was retained to prepare the Deed of Conveyance and

that Mr. Clarke enquired the status of the appeal and requested certain documents from the

Defendants. While there was no letter exhibited to show that Mr. Clarke was retained since

November 2012 to prepare the Deed I have no reason to believe otherwise since in the

letter Mr. Otway indicated to Mr. Morgan that Mr. Clarke would be contacting him directly

concerning information he required to complete the preparation of the Deed of Conveyance

and it was copied to Mr. Clarke. I have therefore concluded based on the Claimant’s

evidence that he had a reasonable explanation for not tendering the purchase price and the

Deed of Conveyance. Further he disclosed to the Defendants that Mr. Clarke was the

attorney retained to prepare the Deed of Conveyance since November 2012.

Abatement

81. Before I leave this matter I must address the finding by Best J on the issue of abatement.

At page 20 of the Best judgment the Court made the following finding on the claim for

abatement and stated :

“The Court accepts the evidence that there is a shortfall in the size of the property

representing a difference of 413.33 square feet. At $50.00 per square foot, the

claimant is entitled to the sum of $20,666.50 as abatement.”

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82. This finding by the Court on the sum as abatement was not included in the perfected Best

order. It has not been disputed by the Defendants that the Court made the aforesaid finding

on the issue of abatement. In my view the absence of the aforesaid provision from the Best

order was an accidental slip or omission. While I accept that the Claimant has not applied

to correct this accidental slip under Part 43.10 CPR, the Court having recognized that Best

J made the aforesaid finding on the issue which was omitted from the perfected Best order

the Court can on its own motion direct the Registrar to correct this accidental slip or

omission.

83. Therefore pursuant to Part 43.10 CPR the Registrar of the Supreme Court is directed to

correct this accidental slip or omission in the Best order to reflect the Court’s finding on

the claim for abatement.

Disposition

84. The Court has the jurisdiction under Part 43.9 (b) CPR to vary the terms of the Best order

and under its inherent jurisdiction to give effect to it. The late service of the submissions

filed on the 29th January 2016 is not in issue since time was extended to serve them. The

Claimant’s requests to amend the application and to rely on the further affidavit are refused

since they raises new matters which are prejudicial to the Defendants who did not have the

opportunity to respond to the new evidence in the further affidavit. The Defendants

objection to the contents of exhibits “MP 3” and “MP 5” are not significant to warrant a

striking out of them. While I agree with the Defendants that the paragraphs 5, 6 and 7 of

the affidavit and paragraph 4 of the supplemental affidavit did not comply with Part 31.3

CPR, the Defendants did not raise these objections in the Defendants affidavit. They dealt

with the matters raised in the said paragraphs and in my view the technicalities raised by

the Defendants are not significant to warrant a striking out of the substance of the

paragraphs.

85. The Best order did not fix a time for completion of the Agreement for Sale. It did the

opposite since it fixed a time when it could not have been completed. In this regard the

Court is empowered under Part 43.9 CPR to fix a time for the completion of the sale.

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Further, even if the Best order did fix the 27th February 2013 as the time for the completion

of the sale and time was of the essence, the Defendants conduct led the Claimant to believe

that time was not of the essence. Therefore the sale not having been completed by the 27th

February 2013 the Court is still empowered to vary the Best order and fix a time for the

completion of the sale.

86. Further, the Claimant can appeal to the Court’s equitable jurisdiction since he has

approached the Court with clean hands.

87. Pursuant to Part 43.10 CPR the Registrar of the Supreme Court is directed to correct the

accidental slip or omission in the Best order to reflect the finding on the claim for abatement

which is that the Claimant is entitled to the sum of $20,666.50 as abatement.

Order

88. The Defendants are directed upon payment of the balance of the purchase price to execute

a Deed of Conveyance prepared by the Claimant’s attorneys at law, for the property within

21 days of the delivery of the Deed to the attorneys at law on record for the Defendants. In

default, the Registrar of the Supreme Court to execute the Deed.

89. Pursuant to Part 43.10 CPR the Registrar of the Supreme Court is directed to correct the

accidental slip or omission in the Best order to read “the Claimant is entitled to the payment

of the sum of $20,666.50 from the Defendants as abatement”.

90. The Defendants to pay the Claimant the costs for the application to be assessed in default

of agreement.

Margaret Y Mohammed

Judge

THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT...

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