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					TRINIDAD AND TOBAGO

                    IN THE HIGH COURT OF JUSTICE

H.C.A. No. Cv 5099 of 1996

                                  BETWEEN

                             SUMINTRA CHAN
                                                                   PLAINTIFF

  (Substituted for Seepersad Chan by the Order of Mr. Justice Stollmeyer on the
                             14th day of July, 1998)



                                     AND

                             CAROL GRIFFITH
                                                                 DEFENDANT


BEFORE THE HONOURABLE MR. JUSTICE STOLLMEYER

Appearances:
Mr. C. George for the Plaintiff
Dr. C. Seepersad for the Defendant



                                 JUDGMENT

These proceedings relate to a property comprising 22,314 square feet of land,

together with a dwelling house and certain out buildings thereon, situated at 7B

Akal Trace, Santa Cruz, Trinidad which was conveyed by the Plaintiff to the

Defendant by a Deed of Conveyance registered as No. 22039 of 1996 for a stated

consideration of $150,000.00.




                                                                    Page 1 of 45
By his reamended Writ and amended Statement of Claim the Plaintiff sought

several reliefs but, principally, a declaration that the Deed of Conveyance in

question is null and void and should be set aside on the ground that it was a

product of an unconscionable bargain between the Plaintiff and the Defendant. A

similar plea for a declaration that the Plaintiff was induced to convey the said

property to the Defendant by and under her undue influence was abandoned but

the Plaintiff additionally sought what might be referred to as the usual other

reliefs.

The Defendant, by her reamended Defence and Counterclaim denies the Plaintiff's

claim, saying that the price of $150,000.00 was agreed between them at the

Plaintiff's request, and counterclaimed for a declaration that she is the owner in

fee simple of the said property. A further claim for damages was abandoned at

the trial during the course of closing submissions on behalf of the Defendant.

The following findings of fact can be made from the evidence led during the

course of the trial.   The property in question (to which I will refer as "the

Property") is located some 150 yards to the west of Akal Trace, La Pastora, Santa

Cruz, Trinidad to which there is access along an unnamed private road. The

parcel of land is irregularly shaped with a road frontage of 40.45 m; the southern

boundary is 37.29 m and the northern boundary is 84.22 m. The house standing

on this parcel of land is 1,998 square feet with an additional car-port shed of 703

square feet, a utility of shed of 463 square feet and an external store room of 144

square feet.




                                                                      Page 2 of 45
The Plaintiff bought the parcel of land from the National Commercial Bank of

Trinidad and Tobago Limited in July 1993 for $45,000.00 as is evidenced by deed

registered as No 12664 of 1993. At that time he had been living there for some

years, having been given permission to do so by one Thomas Gaskin (for whom

the Plaintiff worked at that time), the father of the then owner, Cheryl Gaskin, and

who had herself mortgaged the property to the National Commercial Bank of

Trinidad and Tobago Limited in 1991 for the purpose of securing certain credit

facilities and financial advances. The Plaintiff had initially resided in a small

board house on the Property but had started to replace it with a more substantial

structure which he started to construct himself and eventually got close to

completing in 1996.

The Plaintiff mortgaged the Property to, it would appear, the National

Commercial Bank of Trinidad and Tobago Limited and this mortgage was

subsequently vested in First Citizens Bank Limited. I say "apparently" because

no evidence was led in respect of either of these matters but they were accepted as

factual by the Attorneys appearing in this matter. Regrettably, there is therefore

no evidence before the Court as to the sum secured by this mortgage, nor as to the

terms of repayment, but it is accepted by both parties to the action that, at some

time, the Plaintiff failed to meet his obligations under that mortgage.

The Plaintiff was a builder by trade and had been so occupied since 1977 or

thereabouts, after he had left school at the level of Standard Five and had then

worked for some years as a mechanic. From all appearances, he did fairly well




                                                                          Page 3 of 45
for himself in his capacity as a builder over the years, acquiring not only the

Property but also a van as well as building up a business which employed several

people.

At some time in 1993 or 1994 his eyesight began to give him trouble. Although

the evidence does not make it clear as to when this first happened, he visited an

eye specialist, Dr. Bruno Mitchell, for the first time in 1994 and then also

consulted a Dr. Mahabir.      He visited Dr. Frank Ramlackansingh, a General

Practitioner, in early 1994 and was diagnosed as being a diabetic but, according to

Dr. Ramlackansingh, the Plaintiff made no mention to him on that occasion

about anything being wrong with his eyesight and Dr. Ramlackansingh himself

detected nothing.   By 26th November, 1996, however, when he visited Dr.

Ramlackansingh he had completely lost the sight in his right eye and was only

partially sighted in his left eye. Dr. Ramlackansingh’s examination on that date

revealed this and, further, that the sight in the left eye was only such that the

Plaintiff ".....could perceive light and perceive hand movements."

In the meantime, and because of his failing sight, the Plaintiff's activities as a

builder had come to an end. Sometime in 1995, possibly between the middle of

to late that year, he had started to default in paying his monthly instalments of

approximately $1,200.00 to the mortgagee, First Citizens Bank Limited, and by

the beginning of November 1996 the balance outstanding on the loan secured by

the mortgage was approximately $14,000.00.         Mention might be made that

reference was made both in evidence and         by the Attorneys to there being




                                                                      Page 4 of 45
"arrears" on the mortgage loan. Given that the amount of $14,000.00 was paid to

satisfy the Plaintiff's indebtedness to the mortgagee in full, the word "balance" is

more appropriate.

First Citizens Bank Ltd. had written to the Plaintiff on several occasions about the

state of the mortgage loan and in early 1996 retained Linden Scott & Associates

Ltd. to carry out a valuation of the Property.      Mr. Linden Scott, who gave

evidence on behalf of the Defendant, visited the Property together with an

assistant and prepared a Report dated 28th March 1996 which opined that the then

current open market value of the Property was $225,000.00 and that the minimum

current forced sale value of the Property was $200,000.00. At that time, First

Citizens Bank Limited also wrote to the Plaintiff saying that the Property would

be sold if the mortgage was not paid. The Plaintiff was subsequently told by a

Mr. Gomez, an officer of First Citizens Bank Limited, that the Bank would not

sell the Property if he, the Plaintiff, could get a buyer. Despite this, it was not

until September of 1996 that the Plaintiff made any effort to sell the Property. He

retained one Duane Perry as his agent for the sale and Mr. Perry was to be paid a

commission.     A written agreement was subsequently entered into on 23rd

September, 1996 between the Plaintiff and Mr. Perry.

Duane Perry introduced the Defendant to the Plaintiff as a prospective purchaser

during the moth of September 1996. While the possible price for the Property

might have been mentioned or discussed, no agreement was struck on that

occasion and the Defendant returned to England where she lived and worked, she




                                                                       Page 5 of 45
having come to Trinidad ostensibly seeking to purchase what might be called a

"winter home" for herself and her husband.

The Defendant returned to Trinidad at the end of October and met with the

Plaintiff on 31st October. Thereafter, events moved apace. There were further

discussions between the Plaintiff and the Defendant as a result of which it was

agreed between them that she would buy the Property, although there is a

divergence of opinion between them as to the price which was to be paid. The

Plaintiff visited First Citizens Bank Limited on October 31 and spoke with Mr.

Gomez telling him what he proposed to do and learned from Mr. Gomez the

amount required to pay off the mortgage loan in full. Contact was made with the

Defendant at her sister's house in Nehru Street St. James where she was staying

and on 1st November the Plaintiff, the Defendant, the Defendant's sister and

brother met with Mr. Gomez. At the time of this meeting it appears clear that the

parties had agreed to certain matters between them which were not then, nor are

they now, in contention. They were that the Plaintiff would pay off the mortgage

loan by way of the Defendant paying the required amount direct to the Bank and

deducting same from the purchase price to be paid, and the Defendant would pay

all the other expenses of the sale/purchase.

The sequence of events after they left the Bank is less clear. Having reviewed the

evidence of the Plaintiff, the Defendant and the Attorney-at-law, Allan Mendonca,

I have come to the conclusion that after leaving the Bank the parties went first to

the St. James Branch of Bank of Commerce Trinidad and Tobago Limited where




                                                                      Page 6 of 45
the Defendant purchased a draft for $14,000.00 for the purpose of paying off the

outstanding amount due on the mortgage loan.         They then proceeded to the

offices of Messrs. De Nobriga Inniss & Company where they met with Mr.

Mendonca and an agreement for the sale and purchase of the Property (Exhibit

"B") was prepared. They then spent some time at the house of Mrs. Griffith's

sister in St. James before returning to First Citizens Bank Ltd., to meet with Mr.

Gomez at 2.00 o'clock that afternoon. While there, the amount of $14,000.00

was paid to First Citizens Bank Ltd. and the parties went their various ways, the

Defendant having taken the Plaintiff back to 7B Akal Trace.

There are conflicting accounts as to the sequence of events on that day and,

particularly, as to where and when the agreement was actually signed.          Mr.

Mendonca said that it was not signed in his office but that he subsequently

received a signed copy of the agreement on 4th November, which bore the date

1st November when he was instructed by the Defendant to act on her behalf in the

matter preparing the conveyance in her favour. The Plaintiff's evidence supports

this, at least initially, when he said that "....We did not sign it [the agreement]

there in the office. She [Mrs. Griffith] tell me when we go in the bank we would

sign.... We went to the bank after 2.00 p.m." The Plaintiff also said in cross-

examination that "....We never signed the agreement on the day the bank was paid

off. I am sure about that.... When we went to the bank we did not sign anything

there...... The only time the lawyer read it over to me was when we went to sign.

That was about a week later. The document was not read to me on the first

occasion."


                                                                      Page 7 of 45
The Defendant on the other hand says that "....The lawyer read the agreement to

Mr. Chan and myself. After it was read I was asked to sign. Mr. Chan signed

with assistance.... The lawyer also signed.... After the agreement was signed we

took Mr. Chan back to his home." An examination of the agreement (Exhibit

"B") shows quite clearly that the signature of the parties was not witnessed by Mr.

Mendonca, indeed those signatures are not witnessed at all. Mr. Mendonca's

signature does appear on the document but only at the top of the first page where

he has signed the "preparation certificate" required by the provisions of the Legal

Profession Act 1986.     In the event, I have come to the conclusion that the

agreement was in fact signed on 1st November, 1996 and that, although it was

read to the Plaintiff by Mr. Mendonca’s Secretary, it was not signed at the offices

of Messrs. De Norbiga Inniss & Company. It is difficult from the evidence

before me to say where it was in fact signed but while the indications are that this

was done at the bank it is difficult to say so with certainty. I do not, however,

think that a great deal turns on this particular question save, perhaps, for the

credibility and reliability of the evidence given by the Plaintiff and the Defendant

respectively and which is an aspect of the matter with which I will deal further in

due course.

On Saturday 2nd November, the day after the agreement was signed, the

Defendant went to the Plaintiff and asked if she could start cleaning up the

Property. The Plaintiff agreed. On Monday 4th November, the Plaintiff brought

with her persons who began painting the burglar proofing. She paid the Plaintiff

$950.00 to install a water pipeline to the Property from the road and although no


                                                                       Page 8 of 45
mention is made as to which road, it would probably have been Akal Trace and

the water main already existing there, it being clear from the evidence that there

was not at that time any connection from the supply provided to the area by the

Water and Sewerage Authority to the Property. The Defendant agreed to pay the

Plaintiff a further $25,000.00 to carry out certain renovation works which she says

were started two or three days after she had paid the $14,000.00. This further

amount of $25,000.00, however, was never paid because, as the Defendant

expressed it "....I did not see it right to pay Mr. Chan $25,000.00 just to supervise

workers."

On November 5th the Defendant paid the Plaintiff a further sum of $8,800.00 for

certain household items, two water tanks and two hundred blocks, obtaining a

receipt for same dated 6th November for $8,840. The draft in payment in this

amount and the receipt were put in evidence together as Exhibit ‘K’.            The

agreement for the purchase of these items came about as a suggestion of the

Defendant who said in cross-examination "....With respect to the agreement to the

purchase of the beds etc. I asked if he [the Plaintiff] was selling them."

Returning to the question of the renovation works, there is differing evidence as to

when the Defendant actually started them. At one point in her evidence in chief

she said that she "... started renovations work two or three days after I paid the

$14,000.00...."    but then during cross-examination she said "....I cannot

remember the exact date the works started in November. I don't think it was

before 12th November 1996. I think it was after 12th November.... I started work




                                                                        Page 9 of 45
in November. It could be mid November." The work stopped "....when Mr.

Perry gave me that paper some time in mid November. .....I stopped it could be

late in November." Work restarted "....after I saw the Solicitor and took advice.

I don't remember exactly when. I saw the Solicitor immediately after I got the

paper.... I restarted it could be in December."

The only other evidence as to when these works started, stopped and restarted

might be gleaned from Exhibit ‘R’ ("List of Expenses in Renovation Works").

This indicates that there were either bills or receipts, possibly both, dated as early

as 4th November but indicates no stopping or restarting of work other than

possibly between 30th November and 6th December inclusive, these being dates

between which either no bills were made or receipts were given. On balance, I

have come to the conclusion that work, or work of any financial consequence, did

not start until the sale and purchase had been completed on 12th December; that

work continued for about ten (10) days and then stopped and restarted in early

December. I do so on the basis of the Defendant's evidence as I have outlined it

above, the fact that an appearance to this action was entered on her behalf on 25th

November, the Writ originally being filed on 19th November and amended under

Order 20 Rule 1 and re-filed on 22nd November, after which the Defendant would

have been served; and her further evidence that "....the bulk of the work was done

after I got the paper from Mr. Perry."        These findings of fact are of some

importance, as will become evident later.




                                                                       Page 10 of 45
Also on 4th November, the Defendant instructed Messrs. De Nobriga Inniss &

Company to act on her behalf in relation to the searching of title and preparing the

deed of conveyance of the Property. Mr. Mendonca says she told him that she

needed to have it urgently since she lived in England and wanted to return there as

soon as possible. In the event, completion of the transaction took place on

November 12th, 1996, four or five working days after she had retained the

services of De Nobriga Inniss & Company.

In the interim, on the 11th November, the Plaintiff started moving out of the

Property at the request of the Defendant. He hired a vehicle and got one or two

of his friends to pack up his belongings and move them across to his mother's

house at Mc Carthy Street, Cantaro Village, Santa Cruz. It was also on 11th

November that the Plaintiff for the first time told his family, and good friend,

Matthew Ramsaroop, that he had sold the Property.

On 12th November, the Plaintiff and the Defendant met at the Trinidad and

Tobago Electricity Commission’s offices in Port of Spain together with the

Plaintiff's sister, her brother and Matthew Ramsaroop. The parties had gone

there to arrange "to transfer the meter" from the Plaintiff to the Defendant but

were told that this could not be done until the Property had been transferred into

the name of the Defendant. They then went to Messrs. De Nobriga Inniss &

Company where the Plaintiff, the Defendant and Matthew Ramsaroop went in to

the Attorney's office. The deed of conveyance was read to the Plaintiff and a

discussion took place at which the Plaintiff, Matthew Ramsaroop and the




                                                                     Page 11 of 45
Defendant were present, as to the price as it was stated in the deed. Following

this, the Plaintiff executed the deed having received payment of $136,000.00 from

Mr. Mendonca representing the balance of the purchase price.

Within a matters of days thereafter the Plaintiff with, in all probability, some

prodding by his family, gave perhaps more mature, or fuller, consideration to what

he had done and in what might be described as the sober light of day it dawned

upon him that the Property was no longer his and that all he had to show for it was

something in the order of $136,000.00. The Writ was filed on his behalf on 19th

November, one week after completion of the sale purchase.

Before turning to the law or the issues of law involved in this case, there are

certain other issues of fact which are to be considered.

The Purchase Price.

There is diametrically opposing evidence between the Plaintiff and the Defendant

as to the price which was to be paid for the Property. The Plaintiff, supported by

Duane Perry, says that he asked a price of $600,000.00 at his very first meeting

with the Defendant in September. When this was not accepted, he then suggested

a price of $350,000.00 for the house standing on only 8,000 square feet of land

and obviously, on that day, came to the conclusion that this had been accepted by

the Defendant. It should be noted that the Plaintiff was not cross-examined on

this question of the reduced purchase price and land area. Duane Perry was

obviously of the view that the Defendant had accepted this offer saying in his

evidence "....Mrs. Griffith seemed pleased at the idea. She agreed to purchase



                                                                     Page 12 of 45
8,000 square feet together with the house at $350,000.00." Mr. Perry was firm in

maintaining this position when cross-examined. After the Defendant's visit to his

of 31st October, the Plaintiff went to Mr. Gomez of First Citizen Bank Limited

and enquired as to whether there was a balance on the loan. He says that he

explained to Mr. Gomez that somebody wanted to buy the house and 8,000 square

feet of land for $350,000.00 and that the person would pay off the outstanding

balance of the loan. He gave to Mr. Gomez the telephone number where the

Defendant could be contacted.

On 1st November, after leaving the bank and while on the way to Messrs. De

Nobriga Inniss & Company, having dropped Mr. Gomez at Independence Square,

the Plaintiff says the Defendant enquired of him as to whether he would sell the

whole piece of land together with the house. To this he responded by saying "....I

tell her give me $500,000.00 for the whole piece." When the Defendant said that

she could not, or would not, pay this price, the Defendant then said to her that he

would sell the whole Property for $420,000.00 to which, he says, she responded

by saying "....O.K. when we go to the lawyer tell them you would sell the land for

only $150,000.00...." and that "....When we finish by that lawyer we would go to

she lawyer Mr. Chang to make arrangements for she to pay the balance of

$270,000.00."    In other words the Plaintiff claims that a purchase price of

$420,000.00 was agreed upon between himself and the Defendant.

The Defendant categorically denies this. She says that at her first meeting with

the Plaintiff "....No price was discussed.... there was a discussion about monies




                                                                     Page 13 of 45
outstanding...." i.e. whether there was any money owed on the Property and that it

was not until they were at the bank on 1st November that a price was agreed upon.

It was while they were at the bank that the Defendant learned of the valuation

carried out by Linden Scott and Associates Limited dated 20th March 1996. She

was told something by Mr. Gomez who showed her some papers from which she

learned "....that the bank was selling the property for...." $225,000.00. She said

in her evidence that "....Up to that moment I had not agreed a price with Mr.

Chan. I had told Mr. Perry how much I intended to spend on a property. At that

time I was not prepared to buy the Property for $300,000.00. I had seen how

much it was valued for.... I made it clear to Mr. Chan about what I learned

about Mr. Gomez about the price. Mr. Chan said I can have the Property and all

the land for $150,000.00...." It goes without saying, of course, that she denied

ever having agreed to purchase the property at $420,000.00 or, for that matter, at

any price other than $150,000.00.

There are certain other events which lend support to the Plaintiff's contention that

a price of $350,000.00 for the house and 8,000 square feet of land had been

agreed upon. He did in fact retain the services of a Land Surveyor, Mr. Harold

Sankar, on or about 31st October. Mr. Sankar prepared a survey plan dated 12th

November 1996 (Exhibit ‘F’) which showed the house and out-buildings on a

parcel of land measuring 745.3 square metres, which is approximately 8,019

square feet. Obviously, the Plaintiff would not have done this and borrowed the

money to do so as he said in his evidence, if he did not at the very least have a




                                                                     Page 14 of 45
very good reason to believe that an agreement had been arrived at. Indeed, the

question of the survey plan was raised by Mr. Perry with the Plaintiff about a

fortnight after the first meeting, when the Plaintiff told him that it had not yet been

done because he did not have the money to do so.

Additionally, the possibility of a purchase price other than $150,000.00 was

known to Mr. Gomez of the First Citizen Bank Limited. The Plaintiff says that

he told Mr. Gomez of the agreement to sell at $350,000.00 and in a telephone

conversation which Mr. Gomez had with the Attorney, Alan Mendonca, on 1st

November, he told Mr. Mendonca something which quite clearly led Mr.

Mendonca to believe that the purchase price was not in fact $150,000.00. This is

clearly the reason for Mr. Mendonca saying in his statement (Exhibit “AM”)

that "....In view of what the bank officer indicated to me I told Mr. Chan that I

thought the purchase price was higher than that amount...." of $150,000.00.

Indeed, because of what he had been told by Mr. Gomez, Mr. Mendonca quite

clearly and very correctly entertained some reservations insofar as the question of

stamp duty on the proposed deed of conveyance was concerned; and, if not, why

did he, after being contacted by Mr. Ali, the Justice of the Peace, on 14th

November, 1996, then write to the Defendant in the terms of his letter to her of

November 14th, 1996? Clearly, it can be for no other reason than a purchase

price other than $150,000.00 having been at the very least been discussed, if not

agreed upon, by the Plaintiff and the Defendant.




                                                                        Page 15 of 45
I have considered carefully the evidence as to this issue, as well as the credibility

and reliability of all of the Plaintiff, the Defendant, and Mr. Perry.    I accept the

evidence of Mr. Mendonca as both totally reliable and utterly credible. For all

these reasons I have come to the conclusion that a purchase price $350,000.00 was

agreed upon between the Plaintiff and the Defendant. I should add also that the

very existence of Exhibits ‘D’ and ‘E’, the agreements between the Plaintiff and

Mr. Perry for the sale of the Property and the payment of a commission, can only

be interpreted as lending weight to the conclusion at which I have arrived.     Also,

the Plaintiff said that this was the price for the house and 8,000 square feet of land

and the Defendant in cross-examination said that she “......... would not say that

at all times I was interested in buying the whole property. I was interested in

buying the house. And part of the land. I was interested in buying the house

and a walkway around the house”. I am not so certain, however, that agreement

was arrived at for a purchase price of $420,000.00, but when it is considered that

this action is founded upon a plea of "unconscionable bargain" and not, for

example, a claim for the unpaid balance of a purchase price, then I do not think

that the question of a concluded purchase price and a resultant binding contract,

should be given more consideration than being some indication of what the

market value of the Property might be.

The Value of the Property

Evidence as to the value of the Property was given by Duane Perry, Clermonte

Rogers (both for the Plaintiff) and Linden Scott for the Defendant. At the outset,




                                                                         Page 16 of 45
there is perhaps one issue which can be disposed of readily. Dr. Seepersad

submitted that any valuation of the Property must of necessity be affected by the

defects in the Plaintiff's, title basing this submission upon the recitals in the

conveyance from the National Commercial Bank of Trinidad and Tobago Limited

to the Plaintiff (Exhibit ‘A’). In short, I do not accept this. Those recitals set out

clearly the events leading up to the conveyance in favour of the Plaintiff and, in

the best tradition and practice of any worthwhile conveyance says, at page 4

recital 11"...... Doubts have arisen as to which of either the Borrower or Dennis is

entitled to the beneficial interest in the assured premises .......".   Those doubts,

whatever they may be, cannot, and do not, as recital 9 at page 4 of the deed sets

out, override the interest of the National Commercial Bank of Trinidad and

Tobago as mortgagee, and it is as such mortgagee that it exercised its statutory

power of sale. Good title was vested in the Plaintiff as a consequence of that

deed of conveyance and if there had at that time been any doubt as to the title,

then there was certainly none when the deed of conveyance from the Plaintiff to

the Defendant (Exhibit ‘V’) was executed on 12th November 1996, save only for

the questions of Land and Building Taxes and Water and Sewerage Rates which

Mr. Mendonca quite properly brought to the attention to his client, the Defendant,

and obtained from her an exoneration in that regard. Furthermore, no attempt

was made at the trial to lead any evidence whatever from any person with any

special expertise or experience in this area of the law.

That apart, Duane Perry's evidence as to market value was brief, his opinion being

that, despite his very recent entry into the real estate market, he was of the view


                                                                        Page 17 of 45
that land in the Santa Cruz area could range in price from $12.00 per square foot

to $23.00 per square foot. As to Akal Trace itself, he was of the view that this

going rate was between $12.00 to $15.00 per square foot and that "....The going

rate at that address [the Property] for residential would be $12.00 per square

foot...." and about $7.00 to $8.00 per square foot for use as agricultural land.

He did not, however, give any evidence as to the possible value of the buildings

standing on the parcel of land.

The witnesses Roger and Scott arrived at widely varying valuations. Indeed, the

variation is so wide that it is at first difficult to comprehend how the difference

might arise: Mr. Scott fixed a "current Open Market Value" of $225,000.00 and

a "minimum current Forced Sale Value" of $200,000.00; Mr. Rogers was of the

view that the Property had an open market value of $650,000.00. The only

matter on which they might be said to be in some measure of agreement is the

replacement cost of the house (not the external carport, utility shed or external

storeroom) which they both placed at $100.00 per square foot. By "replacement

cost” here is meant the cost of constructing the house, assuming the necessity to

do so arose, and represents the actual cost of replacing, or reinstating, or

reconstructing, the building in substantially the same form as it now exists at its

present location.

I do not propose to review the evidence of these two gentlemen in great detail but,

given Mr. George's fulminations (which might best describe his criticisms of Mr.

Scott's evidence) I think it necessary to make several observations. First, Mr.



                                                                        Page 18 of 45
Rogers, on his own admission, never set foot on the property much less did he

carry out any inspection of the land or of the buildings. He relied totally on the

descriptions given to him by the Plaintiff and that, may be the reason why he

came up with a figure of 3,762 square feet representing the building area. He did

not, either in his valuation report or in his evidence, give any details as to what

prices had, or might have, been fetched by similar properties in the same or

surrounding localities save to say in his evidence that he arrived at his value of the

land area by looking at what he regarded to be only three comparable properties,

all of which were in planned residential areas and none of which exceeded 14,000

square feet in area. Additionally, and I found this startling evidence from a

person claiming to have the length of experience in valuations which he said he

had, he did not know the meaning of "forced sale valuation." Indeed, under

cross-examination he appeared unacquainted with well known valuation

methodology or, if acquainted, was disinclined to give the Court the benefit of his

experience and expertise.     None of this served him, or his evidence, or the

Plaintiff's case in good stead.   He said that he was aware of the existence of a

water course at the back of the land and that he factored that into his valuation

"....to some extent."   Further, his valuation (Exhibit ‘H’) was based on the

"replacement cost method" for the building and that he placed a value thereon of

$360,000.00. The land he valued at $13.00 per square foot, yielding a figure of

$290,000.00 and thus a total value for the Property of $650,000.00.

On the other hand, Mr. Scott says that he inspected the Property together with an

assistant in March of 1996. Measurements and notes were taken which indicate


                                                                       Page 19 of 45
the area of the house to be 1,998 square feet, the area of carport shed to be 703

square feet, the utility shed to be 463 square feet, and the external store room to be

144 square feet. It should be noted, particularly when regard is have to the

photographs included as part of that report, that the buildings generally appear to

be in an unfinished state which accords with Mr. Perry's estimate that in

September 1996 the building was about 65% complete. Given the Plaintiff's

evidence that no work was carried out on the Property between March of 1996 and

September of 1996, one is led to wonder whether the replacement cost figure of

$100.00 per square foot given both by Mr. Rogers and Mr. Scott is in relation to

this particular Property in its unfinished state, or in the condition one might expect

to find it fully finished. Again, however, I do not think that very much turns on

this.

Insofar as a description of the building(s) is concerned the evidence of Mr. Scott

must be accepted in the light of there being nothing of worth to contradict it. I do

not apprehend that Mr. Scott’s note as to the extent of the use of teak in the house

being at variance with the recollections of the Plaintiff as to what use had been

made of this type of wood, is of significant consequence either as to the value of

the Property or as to the credibility of Mr. Scott in this regard.

As to the value of land in that area, Mr. Scott said that in his view it would range

between $2.00 per square and $8.00 per square foot and he placed a value of

$4.00 per square foot for the land insofar as the Property is concerned. He said

that he was of this opinion based upon transactions of a similar nature in




                                                                       Page 20 of 45
surrounding areas up to as far as one and a half (1 1/2) miles away from the

Property and in evidence provided details of several transactions to support this.

As Mr. George correctly pointed out, however, a number of these transactions

took place after Mr. Scott had carried out his valuation in March of 1996. They

were not transactions of which Mr. Scott had knowledge at the time of preparing

his valuation, said Mr. George. Moreover, he submitted, several of them were of

considerably larger properties and, consequently, Mr. Scott's valuation should

not be relied upon in any way or treated as being of any worth.

I do not agree with Mr. George’s submission, although I do agree that it is perhaps

well known and well accepted that when a valuation of property is being carried

for a mortgagee contemplating a sale of the property, valuations tend to be

conservative.

Further, Mr. Scott applied the "the direct comparison method” when carrying out

his valuation and it is generally accepted that this is the most        appropriate

methodology to utilise unless the circumstances clearly warrant using some other

method, such as the "investment method". As Mr. Scott quite correctly said, a

house of a particular size and design in one geographical area may fetch a higher

or lower price in another area even if standing on precisely the same size parcel of

land.    It is well known that location very often carries with it a premium when

it comes to pricing. Other properties, in stark contrast, may suffer a penalty

because of location.




                                                                     Page 21 of 45
In the result, I have come to the conclusion that neither of these valuations

accurately reflect the open market value of the Property at the material time

although, in the final analysis, Mr. Scott is more accurate. From his evidence as

to transactions taking place with respect to properties in a reasonable proximity to

the Property itself, I would have thought that land of this nature would fetch a

price closer to $6.00 or $8.00 per square foot, and I say this taking into account

any tendency of the Property to suffer the effects of flooding in the rainy season.

I also think that the transactions of which Mr. Scott made mention in his evidence

can be taken as being some form of general indication of this higher value, despite

their post-dating his valuation, in the light of there not appearing to have been any

appreciable increases or decreases in the value of land in that general area over the

material time.

There is one other matter relative to this issue which might bear comment. Much

has been made both in evidence and addresses of the lack of approval from the

Town and Country Planning Division for the construction of the house standing

on the Property. There is no doubt that the Town and Country Planning Act Ch.

35:01 requires prior approval for the construction of any building, or the

subdivision of a parcel of land at least since 1st August 1969. It is well known,

however, that this requirement is more often observed in the breach particularly in

rural areas where there appears to be little or no monitoring at all of subdivision

and construction    "off the beaten path".      It is also well known that if the

"development", as defined in the legislation, is not detected within four years after

it has taken place, then there is precious little, if anything, which can be - or is -


                                                                       Page 22 of 45
done about it. Consequently, this is a factor seldom taken into account when

valuing a property save for those instances in which the valuation is being done

for the particular purpose of obtaining mortgage financing on a newly constructed

building. Further, where land falls within an area “zoned” for agricultural use it

appears to be something of the norm that the owner will be permitted to construct

a single residential type building thereon.

In the event, if I were to attempt to fix a valuation of the Property as at September

1996 I would be inclined only to increase the value of the land from the $4.00 per

square foot which Mr. Scott placed upon it to, say, $7.00 per square foot but this

would have the effect of increasing the value of the Property as a whole only by

approximately $66,900.00 from $225,000,00 to $291,900.00, I am not in my

view, however, required to do so and indeed it may not be proper or necessary for

me to perform this exercise as we shall see presently.

The Relative Position of the Parties:

A plea of unconscionable bargain inevitably requires some examination of the

position of each party as against the other in an effort to determine whether one of

them can be regarded as having taken advantage of some form of superior

position.

Where the Plaintiff is concerned, the evidence is that he was sufficiently sighted

in June of 1993, when he went to De Nobriga Inniss & Company in connection

with his purchase of the Property from the National Commercial Bank of Trinidad

and Tobago Limited, to make his way around on his own. He lived alone at 7B



                                                                      Page 23 of 45
Akal Trace right up to the time when he moved out on 11th November 1996. At

that time he had only partial sight in his left eye as evidenced by him saying "....I

could just see slight shadows....." and, as Dr. Ramlackansingh said, on 25th

November 1996        the Plaintiff "....could perceive light and perceive hand

movements...." although he went on to say "....I am not in a position to assess

whether he could read but in my inexpert way I would doubt he could read...." at

that time.    The Plaintiff admitted in cross-examination that "....I could be

exaggerating partial lack of sight in my left eye...."

There is no doubt that the Plaintiff's sight was badly affected at all material times.

There was no sight in his right eye and sight in his left eye was, if limited to

perceiving light and hand movements, minimal at best. Certainly Mr. Mendonca

treated him as being blind having noted that "....there was a dull whitish glaze in

his eyes." when the Plaintiff came in to see him on 1st November 1996. The fact

that the Plaintiff could move around his house and turn off his saucepans as the

Defendant said he could in her evidence, can be accepted as a consequence of his

familiarity with his own surroundings, enforced though that familiarity may

have been, and not as a consequence of his sight permitting him to do these

things.

The Plaintiff may not have progressed academically beyond Standard Five but he

said in his evidence that "....I agree that for almost twenty years I read plans and

build houses.... I would go to the bank to cash cheques.... when I go to the

Hardware I would check the bill.... I used to drive a van...." and, of course, if he




                                                                       Page 24 of 45
did drive a van, he would of necessity had to pass the written Regulations Test

prescribed by law as a prerequisite to obtaining a driving permit.

The Plaintiff owned and ran his own business and to do so particularly having

regard to his evidence, he must have had a sufficient degree of literacy so as to

enable him to perform those functions. That does not mean to say, however, that

he was capable of reading or comprehending legal documentation: That, on

occasion, has been shown to be beyond the abilities of some of those of us more

fortunate to have had the benefit of tertiary education.

Despite the evidence that the Plaintiff lost the sight at least in his right eye in 1993

to 1994, he did not consult an eye specialist in private practice, Dr. Bruno

Mitchell, until 1994 despite having first been diagnosed as suffering from diabetes

as far back as 1990. In other words, there is no evidence as to when his loss of

sight began, at least to the extent where it became of concern to him, until he went

to Dr. Mitchell in 1994. The Plaintiff also saw Dr. Mahabir "....the eye specialist

in the Port of Spain Hospital." but does not say when. Presumably this was after

visiting Dr. Mitchell. He also first went to Dr. Ramlackansingh in very early

1994. Dr. Ramlackansingh is a General Practitioner and, although diagnosing

diabetes on that visit, did not have any complaint from the Plaintiff about his eye

sight until November 1996. This leaves some question as to when it was that the

Plaintiff first suffered a loss of eye sight and how serious he was about doing

something to rectify it. It is difficult to conceive of a position whereby the

doctors he consulted did not tell him that his diabetic condition could lead to his




                                                                         Page 25 of 45
eye sight being the very badly affected if he did not take the proper steps to

control his diabetes but, from all appearances, he did nothing to control the

diabetes at least effectively. On the contrary, it would appear from his evidence

that if he had not been doing so previously, he took to drinking quantities of

alcohol which apart from contributing to a general deterioration in his medical

condition, led to what might be described as unhappy differences with certain

members of his family.

Turning now to the Plaintiff's financial status, the evidence reveals that he was not

meeting his mortgage loan commitments from somewhere around mid to late

1995. The bank wrote to him on several occasions about this and eventually sent

Mr. Scott to do a valuation in March of 1996. At this time, or at just about this

time, the Plaintiff was also made aware of the fact that the bank intended to sell

the Property if he did not do so himself. He went to see the bank some time after

getting this letter but on his own admission did nothing until September of 1996,

which would have been about six months after.

It is obvious that the Plaintiff’s increasing loss of eyesight had affected adversely

his business as a builder and, consequently, his income. There is no evidence,

however, that he was indigent: certain members of his family may have, as they

said gone to his house to assist him but there was no evidence whatever that any

of this assistance was financial. The fact that he had not paid the Land and

Building Taxes for the Property since 1987 I do not ascribe to a lack of funds for

two reasons: first the amount involved was minimal; second, they had not been




                                                                      Page 26 of 45
paid for some five or six years prior to his becoming the owner of the property and

he may not have been aware of his obligations. Further, when the necessity arose

he managed to borrow sufficient monies to pay Mr. Sankar, the Land Surveyor.

But while he may have been obliged to borrow monies for that purpose, there is,

as I have said, no evidence to indicate that he was not in a position to maintain

himself financially.

As to the Defendant, she is a woman of some education being a State Registered

Nurse in England of many years experience and the owner of three, small,

residential "care homes" since 1986. She and her husband are obviously people

of some means; regard need only be had to the transfer of funds from Barclays

Bank Limited in England to Bank of Commerce Trinidad and Tobago Limited

which yielded over TT$200,000.00 and she had at her disposal at that time

"....more than $300,000.00 in Trinidad. My husband had that money in a fixed

deposit in the Police Service."

It was obvious to the Defendant that the Plaintiff had a disability. At her first

meeting with him in September "....He appeared to have vision problems. I

perceived him to have a small partial sight.... In the circumstances it appeared to

me he could take care of himself. I don't think he should but he was. I don't

think he was able to look after himself." The Defendant is a State Registered

Nurse of many years experience. She has had experience of dealing with patients

suffering from disabilities such as the Plaintiff's.     She must know of the

psychological consequences of diabetes-induced blindness, or blindness arising




                                                                     Page 27 of 45
from whatever cause.        She, together with her husband, looks after the

administration of all her residential care homes and "....I would say I am a good

business woman. I would say I can get a good bargain. I have never bargained

so I don't know if I could." From my observation of the Defendant while she was

giving evidence, I would say that in making these statements she is drawing what

might be referred to as a "fine distinction" between indulging in the process of

bargaining, or negotiating, and being able to see, and appreciate, "a good buy".

It is perhaps with this approach to business in mind that she chose to pay Duane

Perry and Dennis Durity $3,300.00 each as their commission due on the sale of

the Property. The purchase price is incontrovertibly, for this purpose at any rate,

$150,000.00. Clearly the commission of 5% to be paid on such a purchase price

was $7,500.00 as the Defendant herself said when re-examined by Dr. Seepersad.

She also said "....I paid less. I paid 5% of $136,000.00. I considered that

was what Mr. Chan was liable for." Quite apart from the fact that 5% of

$136,000.00 is $6,800.00, a computation which requires no great degree of

mathematical skill, the Defendant quite obviously decided that this represented a

further avenue for reducing her expenditure. There can be no other rational

explanation for her coming to the conclusion that $6,600.00 "....was what Mr.

Chan was liable for."

Returning to the question of a bargain, if the Defendant’s evidence is accepted

that no purchase price was agreed until they got to the bank and that she then

found out the value placed on the Property, then it is patent that she considered




                                                                      Page 28 of 45
herself to have been presented with yet another bargain. In her own words,

"....Having regard to the valuation by the bank I would say that I got a bargain.

Mr. Chan gave me a bargain." And this must itself be viewed in the light of

what she said earlier in her cross-examination: "....In my evidence I said that the

Plaintiff was doing something about measuring the land. I would not say that at

all times that I was interested in buying the whole Property. I was interested in

buying the house. And part of the land. In September of 1996. That interest

was expressed to both the Plaintiff and Mr. Perry. I was interested in buying the

house and a walk way around the house." It is therefore difficult to apprehend as

to how she can say, immediately after that: "....I don't know about 8,000 square

feet. I know why measurements were made. For me to get my house and the

part of the land I wanted. I expressed interest in the house and the part of the

land." The conclusion I draw from this evidence is that there was in fact a

discussion about the price to be paid for the Property when the Plaintiff and the

Defendant first met in September, contrary to what the Defendant says happened

on that day. Further, even if no price had been agreed by the time the Plaintiff

and the Defendant went to the bank on 1st November, I can come to no

conclusion other than the Defendant saw the opportunity for a bargain after having

been shown the valuation by Mr. Gomez.

The Defendant well knew of the Plaintiff's financial position, for why else would

the bank have commissioned the valuation? And even if the Defendant were not

aware of the reason underlying the valuation being performed, she surely cannot

deny that the bank's position, as she herself said in her evidence, was that the bank


                                                                      Page 29 of 45
wanted its $14,000.00 and to be paid off. She knew that the Plaintiff was

behind hand in his commitments to the bank, and if she did not know it prior to

going to the bank, she must have become aware of it during the course of that

visit. There was, to use an expression "a gift horse" before her and whether she

intended to do so or not, she most certainly "did not look it in the mouth". That

can be the only reasoned conclusion which can be arrived at if there was not any

pre-existing agreement as to the purchase price to be paid for the Property.

There is another aspect of the Defendant’s evidence to which I feel obliged to

refer. In cross-examination she was referred to an Affidavit which she had sworn

on 6th December 1996 in connection with these proceedings and, in particular, to

paragraph 4 thereof.      She was referred to this paragraph of that Affidavit

immediately after having said in cross-examination "...I did not promise Chan if

he came to England I would assist him so he would have to pay for only medical

treatment and I would provide accommodation for him at my care home. It is my

testimony that I never said that at all. I never said it." The fourth sentence of that

paragraph of the Affidavit reads as follows: "....I promised to assist him if he came

to England where he would pay only for the treatment as I could provide

accommodation for him at any Nursing Home at a negligible charge. Treatment

for haemorrhage of blood vessels for the eye is by laser treatment which takes

little time and required only a short period of stay in hospital." When asked if

she wish to change her mind about the oral evidence which she had just given, the

Defendant said that she did not and said further "....that in the Affidavit is a matter

of conversation. I do not wish to change what is in the Affidavit. It is a matter


                                                                        Page 30 of 45
of conversation." During the course of re-examination she said that by "a matter

of conversation" "....I meant it was a matter of Mr. Chan telling me of his

disability and my experience as a nurse."         I find that last averment to be

stretching to the limit the elasticity of the imagination if not of veracity. To

describe it as self serving or disingenuous is to put it mildly, and it has had the

effect of reducing the degree of reliability and credibility which I can ascribe to

the Defendant and her evidence.

I say this in contrast to the evidence given by the Plaintiff. While he was on

occasion slow to respond and indeed, halting, I do not ascribe this to lack of

honesty on his part or to his attempting to fabricate any evidence. There were

certainly occasions on which he appeared confused but whatever may have been

the reason for his confusion, his slowness, or his haltingness, I do not believe it to

be as a consequence of dishonesty although this apparent confusion may well

flow as a consequence of him not having fully understood the events which were

unfolding leading up to 12th November 1996.

I turn now to the law and the question of "unconscionable bargain”, that being the

foundation of Plaintiff 's prayer for relief.

Both Mr. George for the Plaintiff and Dr. Seepersad for the Defendant referred me

to a number of decisions on this area of the law. Mr. George referred to Earl of

Chesterfield v Jannsen 2 Ves Send 125; James V. Morgan 1 Lev 111; Wood V.

Abrey 3 Madd 417; Fry v. Lane 1888 40 Ch. D 312; Creswell v. Potter [1978]

1 WLR 255; Morrison v Coast Finance Limited 55 DLR (2nd) 710; Blomley v



                                                                       Page 31 of 45
Ryan (1956) 99 CLR 362; Commercial Bank of Australia v Amadio (1983) 151

CLR 447; United States v Bedford Associates 657 F. (2d) 1300, 456 US. 914

(1982); Clark v Malpas (1862) 45 All ER 1238; O'Rorke v Bolingbroke (1877)

2HL 814; Union Bank of Australia Limited v Whitelaw (1906) VLR 711;

Watkins v Coombers (1992) CLR 180; Hart v O'Connor (1985) 1AC 1000. In

dealing with the aspect of the value of the Property and the method to be adopted

in arriving at a proper valuation, he cited the decision in Abraham v Federal

Commissioner of Taxation (1944) 70 CLR 23.

Dr. Seepersad for the Defendant referred me to the following decisions: Inche

Noriah v Shaik Allie Bin Omar (1929) AC 127 and Re: Coomber (1911) 1 Ch.

723 with reference to the question of independent advice; Hart v O'Connor (1985)

1AC 1000 (to which Mr. George had also referred me); Christian v Republic

Finance and Merchant Bank Limited & Republic Bank Limited & Vishnu Dindial

HCA 2494 of 1990; Kiri Cotton v Dewani (1960) AC 192; Earl of Chesterfield v

Jannsen (as had Mr. George); Barclays Bank Limited v Schwartz (Times August

2nd 1995); Multiservice Book Binding Limited & Ors. v Marden (1979) 1 Ch.

84; Archer v Cutler [1980] 1 NZLR 386.

In addition, I have had regard to several other decisions. Among them are:

Nichols v Jessup [1986] 1NZLR 26 CA; Nichols v Jessup (No. 2) [1986] 1NZLR

237 Boustany v Pigott (1993) 42 WIR 175.

I do not think it necessary to embark on an extensive and detailed review of the

law relative to the question of unconscionable conduct. It is an area of the law



                                                                   Page 32 of 45
which has been traversed in innumerable decisions at all levels and there are

authors better placed than I am to set out the principles involved. See e.g.

Cheshire Fifoot and Furmston's Law of Contract (11th Edition, 1986) pp. 298 et

seq.; Treitel's The Law of Contract (9th Edition, 1995) at pp. 381 et seq; and

Chitty on Contract (27th Edition, 1994) Vol. I pp. 427 et seq.

A review of all this material reveals that the expression "unconscionable bargain"

has a narrower meaning in equity than it does in ordinary everyday language. Fry

v Lane restated the old principle that the Court could set aside a purchase made at

a considerable under value from "a poor and ignorant man" who had received

no independence advice. In that case, the sale was of reversionary rights but this

has been extended to where, for example, "unfair advantage is taken of a person

who is poor, ignorant or weak-minded or who is for some other reason in need of

special protection." (See Creswell v Potter), and in Watkin v Watson-Smith

(The Times July 3 1986) the Court held that "a desire for a quick sale" and "old

age would if accompanying diminution of physical and mental capacity" could be

substituted for "poverty" and "ignorance".

Traditionally, the Courts have not been minded to grant relief merely because the

transfer is unfair Alec Lobb (Garages) Ltd. v Total Oil (Great Britain) Ltd.

[1983]1 WLR 87 and there has been almost no deviation from the principle that

inadequacy of consideration is not a ground for relief where the parties have

bargained on equal terms See Colier v Brown (1788) 1 Cox EC 428 and it is

"....doubted whether an English Court would now set aside a transaction merely




                                                                     Page 33 of 45
because one of the parties were poor, ignorant or weak-minded." See Cheshire &

Fifoot p 298. Undervalue, however, remains "....a material element in cases in

which it is not the sole equitable ground for relief...."           See O'Rorke v

Bolingbroke and can constitute the sole ground for relief if it is found to be "....so

gross as to amount of itself to evidence of fraud."        See Fry v Lane. In this

context, fraud is not used in its common-law sense but, rather, means "....an

unconscientious use of the power arising out of...." the relative position of the

parties See Aylesford v Morris (1873) L.R. 8 Ch. App. 484 at 491.

The most recent statement of the law in this regard is perhaps set out in Boustany

v Pigott at p. 180 where Lord Templeman said -

       "In a careful and thoughtful submission, Mr. Robertson, who
       appeared before the Board on behalf of Mrs. Boustany, made the
       following submissions with which their lordships are in general
       agreement. (1) It is not sufficient to attract the jurisdiction of
       equity to prove that a bargain is hard, unreasonable or foolish; it
       must be proved to be unconscionable, in the sense that "one of the
       parties to it has imposed the objectionable terms in a morally
       reprehensible manner, that is to say, in a way which affects his
       conscience": Multiservice Bookbinding v Marden [1979] Ch. 84 at
       page 110. (2) "Unconscionable" relates not merely to the terms of
       the bargain but to the behaviour of the stronger party, which must
       be characterised by some moral culpability or impropriety: Alec
       Lobb (Garages) Ltd. v Total Oil (Great Britain) Ltd. [1983] 1
       WLR 87 at page 94. (3) Unequal bargaining power or
       objectively unreasonable terms provided no basis for equitable
       interference in the absence of unconscientious or extortionate
       abuse of power where exceptionally, and as a matter of common
       fairness, "it was not right that the strong should be allowed to
       push the weak to the wall": Alec Lobb (Garages) Ltd. v Total Oil
       (Great Britain) Ltd. [1985] 1 WLR 173 at page 183. (4) A
       contract cannot be set aside in equity as "an unconscionable
       bargain" against a party innocent of actual or constructive fraud;
       even if the terms of the contract are “unfair" in the sense that
       they are more favourable to one party than the other ("contractual



                                                                       Page 34 of 45
       imbalance"), equity will not provide relief unless the beneficiary
       is guilty of unconscionable conduct: Hart v O'Connor [1985] AC
       1000, applied in Nichols v Jessup [1986] NZLR 226. (5) "In
       situations of this kind it is necessary for the plaintiff who seeks
       relief to establish unconscionable conduct, namely that
       unconscientious advantage has been taken of his disabling
       condition or circumstances": per Mason J in Commercial Bank of
       Australia Ltd. v Amadio (1983) 46 ALR 402 at page 413."

Dr. Seepersad quite correctly submitted that the decision in Archer v Cutler

[1980] 1 WZLR 386 was no longer good law given the Privy Council decision in

Hart v O'Connor.    He further submitted that the instant case should be decided

upon the principles in Hart v O'Connor since we are bound by that decision.

While we may be bound by that decision, I do not agree that the ratio of that

decision is in any way applicable to the facts in the instant case. Indeed, having

pronounced for the appellant in Hart v O’Connor after an extensive review of the

decisions in Archer v Cutler and other cases, Lord Brightman at pages 1027 -

1028 said:

       "Their Lordships turn finally to issue (C), whether the plaintiffs
       are entitled to have the contract set aside as an "unconscionable
       bargain". This issue must also be answered in the negative,
       because the defendant was guilty of no unconscionable conduct.
       Indeed, as is conceded, he acted with complete innocence
       throughout. He was unaware of the vendor's unsoundness of
       mind. The vendor was ostensibly advised by his own solicitor.
       The defendant had no means of knowing or cause to suspect that
       the vendor was not in receipt of and acting in accordance with the
       most full and careful advice. The terms of the bargain were the
       terms proposed by the vendor's solicitor, not terms imposed by
       the defendant or his solicitor. There was no equitable fraud, no
       victimisation, no taking advantage, no over-reaching or other
       description of unconscionable doings which might have justified
       the intervention of equity to restrain an action by the defendant at
       law. The plaintiffs have in the opinion of their Lordships failed
       to make out any case for denying to the defendant the benefit of a
       bargain which was struck with complete propriety on his side."


                                                                    Page 35 of 45
The instant case is materially if not completely different insofar as the facts are

concerned but it is instructive also to look at both decisions in Nichols v Jessup,

bearing in mind what was said in Multiservice Bookbinding Ltd. v Marden at

page 110 where it was said that the defendant must have behaved "....in a morally

reprehensible manner..... which affects his conscience..... The classic example of

an unconscionable bargain is where advantage had been taken of a young,

inexperienced or ignorant person to introduce a term which no sensible, well-

advised.... person would have accepted."

Both of the decisions in Nichols v Jessup came in time after O'Connor v Hart had

been decided by the Privy Council. The facts and the circumstances in which the

transactions took place in Nichols v Jessup may not be the same as in the instant

case but, in my view, there is much to recommend the reasoning and the

principles of equity as applied to the facts in that case both by the Court of Appeal

and by Pritchard J when the case was subsequently re-heard.

During his submissions, Mr. George invited this Court to not only take cognisance

of the developments of this branch of the common law in the United States of

America but also in other Commonwealth jurisdictions, particularly Canada,

Australia and New Zealand.        I do not think it appropriate to follow these

developments of the United States of America since that jurisdiction has tended to

widen the scope of relief based upon the concept of "inequality of a bargaining

power" which has not received approbation in England despite what Lord

Denning had to say in Lloyd's Bank Ltd. v Bundy [1974] 3 All ER 757. The



                                                                      Page 36 of 45
concept of inequality of bargaining power does not appear to necessarily depend

on improper conduct by the stronger party: "....so far it has been approached by

English courts with considerable caution.... In a number of cases where counsel

have sought to rely on this the court has concluded on the facts that there was

nothing more than hard but fair bargaining." See Cheshire & Fifoot op cit at page

301. A guiding principle of equity, and the common law, is that they must not

remain stagnant; the principle of stare decisis must be given due regard and

development must not take place if the consequence will be to make the law

uncertain. I am at the same time of the view that the position in law relative to

"unconscionable bargain" can, and should, be developed without causing

uncertainty and should take place within the confines of that traditional and well

founded guiding principle.

A review of the facts in the instant case reveal that the Defendant, Carol Griffith,

bought a property at what could, and perhaps still can, only be best described as a

bargain. She herself said so. That is beyond controversion. I do not accept that

the Property had an open market value of $600,000.00 or $650,000.00. I am

doubtful that the open market value is $420,000.00 having myself applied the

direct comparison method to the evidence before me. But it is equally clear that

the open market value was, at a very minimum, $225,000.00 in March 1996 and

there is nothing to show that it would have fallen by September or November of

that year.   The monies put out by the Defendant in accordance with her

agreement with the Plaintiff to pay all of the expenses other than the mortgage

total $157,684.55 or, if the fee which she claims to have paid to obtain planning


                                                                      Page 37 of 45
permission of $2,500.00 is added then the total is $160,184.55. The difference of

approximately $65,000.00 between the consideration of $150,000.00 stated in

the deed of conveyance and Mr. Scott’s valuation is a considerable sum. When

considered in the context of the amounts under discussion, it represents a

reduction, or discount, of 30% of Mr. Scott's estimate of the open market value.

The position is exacerbated if any open market value higher than $225,000.00 is

accepted and in my view, as I have said, that open market value should be closer

to $300,000.00.

In short, we have a Defendant who said clearly that she was pleased with the

bargain she got. She says also that throughout the whole of this transaction she

acted with “indecent haste” and concluded the transaction with despatch. She

was a State Registered Nurse of many years experience. She recognised that the

Plaintiff's vision was affected to the extent that she did not think he was able to

look after himself. She knew full well of the conditions in which he lived and

from her description of them he was not looking after himself properly despite

living on his own, moving around, and turning off his pots. She also made very

disapproving references to the standard of hygiene on the Property.        Further,

she said that, given her nursing qualification, she considered herself "....highly

educated....." and admitted that she is "....better spoken...." than the Plaintiff,

which I regard as something of an understatement having seen and heard him give

his evidence. She had fairly substantial funds readily at her disposal, available

for the quick purchase of a property. She knew that the Plaintiff wanted to sell

the property or raise money somehow so as to enable him to seek medical


                                                                     Page 38 of 45
attention for his eyesight. She knew that he was lacking in funds and that he had

not been meeting his commitments to the bank, and that the bank had initiated

steps to sell the property if the Plaintiff did not do so himself. And if the

Plaintiff's financial position was not known to her previously, she was certainly

fully "in the know" having spoken to Mr. Gomez at the bank on 1st November,

1996. She knows a bargain when she sees one. She saw the valuation for

$225,000.00.      She saw an opportunity, a bargain, and she took it without

hesitating.

She cannot now say in all good conscience that at the material time there was

nothing to put her on warning or on notice, or to make her sit up and say to herself

wait, is what I am doing correct; is it proper; is it fair. She cannot in my view,

do so. Her philosophy is further reflected in the matter of the renovation works.

In short, her viva voce evidence contradicts the contents of Exhibit “R” (List of

Expenses in Renovation Works) in more than one area, if not only in so far as the

dates of purchases or payments are concerned. She said in her evidence that she

started the works after 12th November, 1996, stopped when served with the writ

(and on receiving legal advice) and restarted in early December, which I have

concluded was after the defendant’s undertaking not to mortgage, charge, lease or

sell or dispose of the Property was entered by way of a consent order on

December 6th. Also, the bulk of the work was done after December 6th “....after

I got the paper from Mr. Perry.........”.




                                                                     Page 39 of 45
Much has been made by Dr. Seepersad of the undertaking not relating in any way

to repairing or renovating the Property but in this respect there are two

observations which I think should be made: first, the relief claimed in the writ

clearly sought to have the conveyance set aside, and it is in my view passing

strange that the Defendant would, with this sword of Damocles hanging over her

head, proceed to spend close to $150,000.00 on the Property when she had no

guarantee that at the end of the day the Property would still be hers. That

expenditure cannot in my view be reasonable or proper. If you expend money in

those circumstances, you do so at your own risk and you are precluded from

coming to the Court subsequently seeking recompense therefor. The claim for

damages which, as I have already mentioned, was abandoned by Dr. Seepersad

during closing addresses; second, while there is no explanation before me as to

why the undertaking did not encompass repairs, renovations and the like, if you

undertake not to sell, lease, mortgage or otherwise dispose of a property pending

the determination of litigation affecting the title to that property, then you do so

only because you recognise and accept that when the Court proceedings have

come to a final conclusion you may not still be the owner of that property.

In the event I have come to the conclusion that in all circumstances in this case

there must judgment for the Plaintiff.     There was a sale, or transfer, of the

Property at an undervalue and at a very considerable undervalue at that. I find

that the Defendant used her superior financial position to her advantage. The

terms of this sale were morally reprehensible and should have affected the

conscience of any reasonable person. She took unconscientious advantage of the


                                                                      Page 40 of 45
Plaintiff's disabling condition or circumstances and she pushed the Plaintiff "to

the wall". In short, the Defendant was guilty of unconscionable conduct. The

bargain was an unconscionable bargain.

A court has a discretion to set aside a conveyance in circumstances such as this

provided that the parties can be restored to their original positions, or restored to

those positions substantially. It is possible to do so in the instant case and there

will, accordingly, be judgment for the Plaintiff and the following declarations and

orders:

          (1)   There will be a declaration setting aside the deed of conveyance

                registered as No. 22039 of 1996 relating to the parcel of land

                comprising 22,314 square feet described in the schedule to that

                deed of conveyance, together with all of the buildings standing

                thereon.

          (2)   The Plaintiff will pay to the Defendant the sum of $213,634.55

                representing: (i) reimbursement of the purchase price of

                $136,000.00; (ii) expenses of $21,684.55 associated with the sale

                and purchase of the Property which would normally be paid by a

                vendor but which in this instance were paid by the purchaser and

                details of which are in the schedule attached to this judgment; (iii)

                the sum of $55,000.00 which I have fixed as being the amount

                expended by the Defendant on material and labour in carrying out

                renovation works to the Property; and (iv) the sum of $950.00



                                                                      Page 41 of 45
      which was paid by the Defendant to the Plaintiff for installing the

      water line.

(3)   The Plaintiff will pay to the Defendant interest at the rate of 6% on

      the total amount of $213,635.55 from 12th November 1996 to the

      date of payment in full.

(4)   The said amount of $213,634.55, together with all interest

      thereon, is to be paid by the Plaintiff to the Defendant on or before

      the 30th October 1998 at which time the Defendant will deliver to

      the Plaintiff a duly   executed deed of conveyance revesting the

      Property in the Plaintiff. The deed of conveyance is to prepared

      by the Plaintiff's Attorney at Law, at the expense of the Plaintiff,

      and is to be sent to the Defendant's Attorney at least twenty-one

      (21) days prior to the date on which the Plaintiff proposes to pay to

      the Plaintiff the sums set out above.

(5)   If the Defendant does not, for any reason, execute the deed of

      conveyance as set out above then is to be executed by the Registrar

      of the High Court for and on behalf of the Defendant.

(6)   Upon receipt of the amount set out above, and upon delivery of the

      duly executed deed of conveyance, the Defendant will thereupon

      let the Plaintiff into full free and vacant possession of the Property.

(7)   All amounts set out above to be paid by the Plaintiff to the

      Defendant shall be paid to the Defendant's Attorney at Law, Dr.


                                                              Page 42 of 45
       Seepersad.      Should any tender of these monies be refused for

       whatever reason, or if the Defendant fails to yield full, free and

       vacant possession of the Property to the Plaintiff upon payment or

       tender of payment aforesaid, then a writ of possession shall issue

       immediately.

(8)    The Defendant's counterclaim is dismissed.

(9)    The Defendant will pay the Plaintiff’s costs of the claim and the
counterclaim.




               Dated this 14th day of July, 1998.




                    .................................................
                       C.V.H. STOLLMEYER,
                                     JUDGE.




                                                                        Page 43 of 45
                        SCHEDULE


1.   Balance due on Mortgage            $14,000.00

2.   Fees etc. on release of Mortgage   $    479.25

3.   Fees etc. on Agreement for
     sale/purchase of Property          $    345.00

4.   Land and Building Taxes            $    260.30

5.   Real Estate Agent’s Commission     $ 6,600.00


                                        $ 21,648.55




                                                      Page 44 of 45

				
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