The Royal Bank of Trinidad and Tobago v Bobby Vashista Persad and Another
| Jurisdiction | UK Non-devolved |
| Judge | Lord Millett |
| Judgment Date | 17 March 2003 |
| Neutral Citation | [2003] UKPC 21 |
| Docket Number | Appeal No. 62 of 2001 |
| Court | Privy Council |
| Date | 17 March 2003 |
[2003] UKPC 21
Privy Council
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hoffmann
Lord Hutton
Lord Millett
Lord Walker of Gestingthorpe
[Delivered by Lord Millett]
These proceedings are concerned with a two-bedroom house with garage and an acre or so of land at Kelly Village, Cunupia, Trinidad ("the Property"). The Property was formerly owned by one Daniel Boodram, a building contractor. He was in dispute with the first respondent, Mr Persad, over a building contract. It was eventually agreed that he owed Mr Persad $80,000, and that he should enter into a mortgage of the Property to secure payment of such a sum to Mr Persad. On 11th June 1980 he duly mortgaged the Property to Mr Persad to secure the sum of $80,000 and interest. By the deed Mr Boodram conveyed the legal estate in the Property to Mr Persad for an estate in fee simple subject to the proviso for redemption therein contained. Mr Boodram subsequently defaulted on his obligations under the mortgage. On 21st August 1981 he conveyed the Property to Mr Persad free of his equity of redemption for the sum of $80,000. Payment of the sum was satisfied by the release of Mr Boodram's covenant to repay. The Conveyance was duly registered on 11th September 1981.
Mr Persad completed what was then a partially built house on the Property but did not go into occupation. Instead he put it into the hands of agents to sell or let.
Meanwhile on 9th July 1981 the appellant, the Royal Bank of Trinidad and Tobago Ltd ("the Bank"), had obtained judgment against Mr Boodram for the sum of $33,387.69 with interest and costs. The Bank registered the judgment on the following day. By section 5 of the Remedies of Creditors Act (Ch 6 No 2 of 1940) ("the Act") a judgment to be entered up against any person operates as a charge upon all lands to which the judgment debtor is then or afterwards becomes entitled. At that date Mr Boodram was entitled to an equity of redemption but no longer had any legal estate in the Property.
Section 28 of the Act entitles a judgment creditor to "an order for the sale of any beneficial interest of the execution debtor in any lands" in Trinidad and Tobago. On 16th March 1982 the Bank issued a summons for "an order for sale of the beneficial interest" of Mr Boodram in the Property. By that date Mr Boodram had no beneficial interest in the Property capable of being sold under the provisions of the Act.
The Court appointed Conveyancing Counsel to report on Mr Boodram's title to the Property on 3rd June 1983. He reported that "at the time of registration of the said judgment [Mr Boodram] was and is seised in fee simple in possession [of the Property] free from all encumbrances" except for the judgment. This was not true either at the date of the judgment (when the Property was subject to the mortgage in favour of Mr Persad) or at the date of the report (by which time Mr Boodram no longer had any interest in the Property at all). No explanation has been forthcoming as to how these errors came to be made.
On 20th July 1983 Narine J made an order that "the beneficial interest" of Mr Boodram in the Property be sold by public auction. Since Mr Boodram had no beneficial interest in the Property, this Order was without content.
On 29th August the Property (and not merely Mr Boodram's interest in the Property) was offered for sale by public auction in purported pursuance of Narine J's Order. It was sold to the second respondent, Mr Dipchand Lakhan, for $54,020. For some reason, which has also not been explained, the sale was not screened or confirmed pursuant to section 55 of the Act and no conveyance to Mr Lakhan was ever executed. The time never came for Mr Lakhan to pay the purchase price.
Immediately after the auction Mr Lakhan went to the Property and changed the locks. There was a confrontation between him and Mr Persad, who told him that he was the true owner of the Property. On the following day Mr Persad sent Mr Lakhan a letter before action. In the letter Mr Persad confirmed that he had bought the Property from Mr Boodram and that the conveyance had been duly registered. He said that he was the sole owner of the Property, and added:
"You indicated to me that you bought this property yesterday through the Court, but the Court has no authority to sell my property. Therefore I cannot understand how you bought my property, which obviously is wrong".
On 4th September 1984 Mr Persad issued the Writ in these proceedings claiming a declaration that he was the owner in fee simple of the Property and damages for trespass. Mr Lakhan served a defence and counterclaim in which he asserted that he had purchased the Property pursuant to a judicial sale and that he had forthwith entered into possession of the Property which was vested in him free from any interest of Mr Persad.
In or about August 1985 Mr Persad noticed, while passing, that the Property was unoccupied and had been vandalised.
During 1988 the Bank was joined as second defendant to the action and Mr Lakhan issued a third party notice against the Bank for an indemnity against Mr Persad's claim.
On 1st December 1994, in circumstances which remain unclear, the Assistant Registrar signed the Bank's default judgment against Mr Boodram and entered it in the Cause Book.
The trial of the action took place before Warner J in June 1996. During the trial Mr Lakhan was granted leave to amend his defence and counterclaim to withdraw his claim that the Property was vested in him free from any interest of Mr Persad and his assertion that he had entered into possession of the Property on 29th August 1984, though he still admitted that he had changed the locks. He also withdrew his counterclaim.
By her judgment dated 4th July 1996 Warner J held:
(i) the Order for sale made by Narine J on 20th July 1983 was valid because the entering up of the Bank's default judgment on 1st December 1994 related back to 9th July 1981 and perfected the Bank's statutory charge;
(ii) Mr Lakhan was entitled to have the sale set aside on the grounds of misrepresentation by the Bank;
(iii) accordingly Mr Persad was entitled to a declaration that he was the owner in fee simple of the Property;
(iv) Mr Persad should have taken steps to re-enter the Property in August 1985 when he discovered that it was unoccupied and accordingly was entitled to damages for trespass for a period of 15 months only;
(v) damages for making good the vandalism should be assessed at 50% of the current cost of carrying out...
To continue reading
Request your trial
-
Escovalez v Torres; Torres v Bahadoorsingh et Al
...already acquired an interest in the land, to the extent of that interest.” 56 The claimant's reliance on the authority of Persad v. RBTT [2003] UKPC 21 is of no assistance to her claim. It in fact confirms the view that in a sale of land under a summons for sale the key inquiry is what was ......
-
Royal Bank of Trinidad and Tobago v. Persad et al., [2003] N.R. Uned. 93
...Roman'; } .span0 { color: #000000; font-size: 12.0000pt; font-weight: bold; font-family: 'Times New Roman'; } Royal Bk. v. Persad, [2003] N.R. Uned. 93 (PC) MLB unedited judgment The Royal Bank of Trinidad and Tobago (appellant) v. (1) Bobby Vashista Persad and (2) Dipchand Lakhan (responde......
-
Security for performance
...from his equity of redemption, subject to being released from his obligation to pay: see, eg, Royal Bank of Trinidad and Tobago v Persad [2003] UKpC 21 at [1]. 489 Wright Designed Pty Ltd v McClymont [2006] FCa 999 at [16]–[20], per rares J. 490 he applicable statutes in the jurisdictions c......