Baptiste v Investment Managers Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Lord Lloyd-Jones |
| Judgment Date | 21 May 2018 |
| Neutral Citation | [2018] UKPC 13 |
| Court | Privy Council |
| Date | 21 May 2018 |
| Docket Number | Privy Council Appeal No 0042 of 2017 |
[2018] UKPC 13
Privy Council
Easter Term
From the Court of Appeal of the Republic of Trinidad and Tobago
Lord Kerr
Lord Wilson
Lord Sumption
Lord Hughes
Lord Lloyd-Jones
Privy Council Appeal No 0042 of 2017
Appellant
David M Rajkumar
(Instructed by Invictus Chambers)
Respondent
Colin Kangaloo
(Instructed by Mishcon de Reya LLP)
Heard on 11 April 2018
The appellant and his domestic partner, the first defendant in the High Court, owned the entire shareholding in a private limited liability company, 33rd Avenue Ltd (“the company”), a clothing retailer. The appellant was also the beneficial owner of a property at 33, St Clair Avenue (“the St Clair property”). By a written agreement between the appellant and the first defendant as vendors and the respondent as purchaser, executed on or about 13 October 2003, the parties agreed
“that upon the conveyance of the beneficial interest in the St Clair property to 33rd Avenue Limited or to a wholly owned subsidiary of 33rd Avenue Limited the Purchaser shall pay the sum of ONE MILLION DOLLARS ($1,000,000.00) to the Vendors and the Vendors shall transfer 50% plus one ordinary share of the issued share capital of 33rd Avenue Limited to the Purchaser.”
The agreement was executed on behalf of the respondent by Mr Jerry Narace, a director of the respondent. On 16 October 2003 a board meeting of the company was held at which the board was reconstituted. Mrs Rani Lakhan-Narace (“Mrs Narace”), a director of the respondent, replaced the appellant as chairman of the company, and Ms Michelle Gonzales, an employee of the respondent, was appointed a director and secretary. The appellant and the first defendant remained directors. The minutes of that meeting record that it was agreed that Ms Gonzales open a new company bank account at Scotiabank in Arima, and that TT$500,000 be deposited in that account. On 23 October 2003 the appellant signed a deed of conveyance, conveying the St Clair property to the company. On 29 October, 30 October and 6 November 2003, cheques totalling TT$1m were paid into the Arima account. The minutes of a second board meeting of the company held on 10 November 2003 record an agreement to convey the St Clair property to a wholly owned subsidiary of the company, Blue Book Company. In the event, the appellant did not sign the Blue Book conveyance. At a third board meeting of the company on 9 December 2003 the appellant said that he had not signed the Blue Book conveyance and was advised that the executed deed of 23 October 2003 would be registered. Between 9 and 25 December 2003 the appellant telephoned Mr Narace and told him that he had changed his mind about the business deal. On 14 January 2004 the appellant's attorneys, Chersons, wrote to Mrs Narace as Chairman of the respondent stating that their clients no longer desired to continue with the arrangement and adding that “of course this will result in the refund to you of the monies already paid by you pursuant to the Agreement”. On 9 March 2004 the deed of 23 October 2003 was registered. On 11 March 2004 the respondent's attorney responded to Chersons, stating that the conditions precedent to the share transfers had been satisfied (namely the payment of TT$1m “to your client” and the conveyance of the St Clair property) and calling for the execution of share transfers in accordance with the agreement. On 23 April 2004 the respondent commenced proceedings claiming, inter alia, specific performance of the share transfer.
The central issue at the trial and on appeal has been the contention of the appellant that the consideration of TT$1m had not been paid to the appellant and the first defendant in accordance with the terms of the agreement. This issue arose at a late stage. The statement of claim included an averment that the monies had been paid to the company at the direction of the appellant and the first defendant. The appellant and the first defendant did not deny this allegation but merely did not admit it. No positive case was pleaded that payment had not been made in accordance with the agreement. The witness statements lodged on behalf of the appellant and the first defendant did not maintain that the respondent had failed to discharge its payment obligation. Similarly, the appellant's list of issues of law and facts in dispute, filed before trial, raised the issue whether the respondent had paid TT$1m to the company but not whether, if it had done so, such did not comply with its payment obligation under the agreement. It was only during the trial that the appellant sought to contend for the first time that payment to the company was not a discharge of the payment obligation in the agreement. Following submissions, the judge allowed the point to be run. In his judgment he noted that the primary issue was whether the monies were due to the appellant and the first defendant personally.
The judge found that the monies were paid into the company at the direction of the appellant and first defendant and in performance of the agreement. He considered it clear and found on the balance of...
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