Dass v Marchand and Others
| Jurisdiction | UK Non-devolved |
| Judge | Lord Burrows |
| Judgment Date | 14 January 2021 |
| Neutral Citation | [2021] UKPC 2 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0038 of 2019 |
| Date | 14 January 2021 |
[2021] UKPC 2
Lord Reed
Lord Hodge
Lady Black
Lord Burrows
Lord Hughes
Privy Council Appeal No 0038 of 2019
Hilary Term
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellant
Thomas Roe QC
Rowan Pennington-Benton
(Instructed by BDB Pitmans LLP (London))
Respondents
Anand Beharrylal QC
Zeik Ashraph
Krishendath Neebar
Haresh Ramnath
Simeon Wallis
(Instructed by Alvin Pariagsingh (Trinidad))
Heard on 1 December 2020
Rosemarie Marchand is the mother of Nicolas and Naomi Marchand (both of whom were adults in their twenties at the relevant time in June 2006). The three of them are the claimants in this case and the respondents in this appeal. They were the joint owners of their family home (ie the land and the house on it, which I shall refer to as “the property”) that had been transferred to them by Rosemarie Marchand's mother in February 2006 prior to her death in May 2006. On 26 June 2006, each claimant signed a deed conveying the property to Dr Rohit Dass, who was Rosemarie Marchand's employer and doctor and is the (first) defendant in this case and the appellant in this appeal. The claimants were paid a total of $307,800 by Dr Dass in respect of that conveyance. They alleged that they had been “tricked” (ie fraudulently induced) into signing the deed of conveyance by Dr Dass and by a lawyer, Victor Hosein, who was the second defendant in this case but died before the trial. They sought, inter alia, to have the deed set aside. That claim succeeded before Rampersad J in the High Court of Justice of Trinidad and Tobago in a judgment delivered on 30 October 2012. His judgment was upheld by the Court of Appeal of Trinidad and Tobago (Pemberton JA, with whom Mendonca and des Vignes JJA agreed) on 16 July 2018. Dr Dass now appeals to the Privy Council.
The judgment of Rampersad J runs to 152 paragraphs. It is helpfully structured with a logical series of clear headings. He was starkly faced with very different accounts of the relevant facts. It was clear that both sides could not be telling the truth about what had happened. Although he recognised that “both sides' evidence had several inconsistencies” (para 88), and he set these out with admirable detail and clarity at paras 89–124, he came down in favour of Rosemarie Marchand and her children. He ordered the deed of conveyance to be set aside and awarded the claimants damages, with their assessment adjourned, against Dr Dass (and against the estate of Victor Hosein) for fraudulent misrepresentation (ie the tort of deceit).
The central conflict of evidence concerned the circumstances in which the claimants came to sign the deed of conveyance. According to the claimants, this was because they had been falsely told by Dr Dass (who had been unsuccessfully trying to persuade Rosemarie Marchand to sell him the property) that there was a mortgage over the property, held by a bank, and that in order to pay off the mortgage arrears the bank was selling the property. They were taken to the offices of the lawyer, Victor Hosein, where they were each given a cheque for their shares of the proceeds of the bank's sale and each signed the deed of conveyance (not realising that it was a deed of conveyance and instead thinking that it was a receipt for the cheques received). Dr Dass's version of events was completely different. According to him, the claimants wanted to sell him the property because Rosemarie Marchand needed money urgently to pay off a loan she had taken out to settle a case involving the alleged theft by Naomi of a gold chain. She and the children knew that they were signing a deed conveying the property to him and in return she and her children were being paid the purchase price agreed.
Having considered all the evidence, and having had the benefit of seeing and hearing the witnesses (except Victor Hosein, whose witness statement was part of the evidence but had died before the trial) Rampersad J found that the claimants' version of the facts concerning the conveyance was the more convincing account. He pointed out (at para 119) that it was important to bear in mind that Dr Dass's explanation about the alleged theft of a gold chain was never put to the claimants in cross-examination. Paras 128–129 of his judgment read as follows:
“128. Which version is more probable? That the first named claimant wanted to sell the premises in which she was living to raise money to repay an unspecified loan for the settlement of a case which was not put to the claimants in cross examination? Or that the first named defendant, the first named claimant's employer and doctor, being aware of the death of the first named claimant's mother and her mental state, came up with a ploy to get the premises from her after she refused to accept his offer to purchase the premises?
129. To my mind, the latter version, in light of all of the circumstances of the case and the evidence led, seems to be the more probable explanation for the sale.”
Rampersad J added the following in para 131.4:
“Dr Dass and [Rosemarie] Marchand went to the office of Victor Hosein where she was informed of a mortgage on the premises. It is inconceivable that [Rosemarie Marchand] would make up such detailed facts to the same and it seems the only logical explanation for the agreement to give up the premises in circumstances where the claimants were not of any substantial means and there was no definite plan for their relocation.”
And at para 132, Rampersad J concluded:
“The court finds that, on the balance of probabilities, the claimants were in fact tricked into conveying their premises to the first named defendant.”
Rampersad J made a number of other findings of fact which he mainly set out at para 131. These included the following:
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(i) Rosemarie Marchand was an employee of Dr Dass on 26 June 2006 when the deed of conveyance was signed; and she was also a patient of Dr Dass at that time.
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(ii) “The claimant was a person with a history of mental issues including mental retardation and depression and was prone to forgetfulness and bad judgment” (para 131.3).
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(iii) Dr Dass had informed Nicolas and Naomi Marchand about the sale of the property when he summoned them to his office on a day when their mother had collapsed at work.
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(iv) The claimants attended the office of Victor Hosein on 26 June 2006 after being dropped off by Dr Dass. They each went in to see Victor Hosein separately and “each signed a document showing only the attestation clause in relation to them alone, individually” (para 131.7).
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(v) The deed of conveyance could not have been in the form in which it was signed by the claimants on 26 June 2006 because the schedule to the deed referred to the surveyor drawing up the relevant plan of the property on 6 July 2006; and there was no evidence whatsoever of the claimants authorising any alteration of the deed (paras 117.20 – 117.21).
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(vi) Rosemarie and Naomi Marchand were evicted from the property (para 131.8). (According to the claimants, this was in August 2006 (para 8).)
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(vii) The claimants did not sign alleged written instructions (ie the signatures were forgeries) dated 26 June 2006 in relation to advice allegedly given by Victor Hosein (para 131.10). At para 117.17 Rampersad J had earlier said, in relation to this document:
“[T]he court is of the view, on a balance of probabilities, that the claimants did not in fact sign this document and … it was a manufactured document of convenience to assist the case for the defendants.”
It is also worth adding at this point that, at paras 95–102 of his judgment, Rampersad J considered an agreement dated 5 February 2007 between Primchan Rambeharry and the claimants. By this agreement, if the claimants were successful in having the deed set aside, Mr Rambeharry would buy the property from them for a further sum of $120,000. Rampersad J explained that that agreement had not been referred to in any of the pleadings or in any of the issues which he had been asked to decide. But he explained that Rosemarie Marchand had been cross-examined about that agreement and it was therefore relevant in assessing her credibility as a witness.
Based on his findings of fact, Rampersad J held, as a matter of law, that the claimants could set aside the deed of conveyance for fraudulent misrepresentation or alternatively undue influence. The claimants were also entitled to damages for fraudulent misrepresentation, the assessment of which was adjourned. Consequent on the setting aside of the deed, the claimants were held bound to repay the $307,800 that they had received but that repayment was stayed pending the assessment of damages.
Although nothing turns on this (not least because counter-restitution by the claimants was ordered), we note for completeness that Rampersad J treated the relevant setting aside as being the setting aside of the deed of conveyance rather than the setting aside of an agreement for sale including the deed of conveyance. This would appear to be because, on these facts, Rampersad J thought that there had never been an agreement for sale (see para 133).
The Court of Appeal, with the leading judgment being given by Pemberton JA, upheld the decision of Rampersad J both on the facts and the law. Pemberton JA explained that there were two main grounds of appeal being put forward on behalf of Dr Dass (although the first encompassed several more specific grounds). These two grounds were as follows:
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(i) That Rampersad J was plainly wrong to find that Dr Dass had wrongfully or unlawfully procured the 26 June 2006 conveyance from Rosemarie Marchand and her children.
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(ii) That Rampersad J ought to have determined the nature of...
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