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Page 1 of 108
REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
CV2006-00659
HCA: No. T-106 of 2003
BETWEEN
L’ANSE FOURMI TRUST HOLDING COMPANY LIMITED
CLAIMANT
AND
ANSE FOURMI BEACH AND RAINFOREST RESORT LIMITED
RANJIT WIJETUNGE
DR. ALDRIC HILTON-CLARKE
DEFENDANTS
BEFORE THE HON. MADAME JUSTICE JOAN CHARLES
Appearances:
For the Claimant: Mr. S. Marcus S.C. leading by Mr. I. Benjamin and instructed by Mr. G.
Benjamin
For the First and Second-Named Defendants: Mr. M. Morgan, instructed by Ms. K. Persad
For the Third-named Defendant: Mr. R. Murray
Date of Delivery: 31st January, 2014
JUDGMENT
Page 2 of 108
BACKGROUND
[1] This matter concerns ALL AND SINGULAR that certain piece or parcel of
land known as “L’Anse Fourmi Estate” comprising TWO HUNDRED (200)
ACRES be the same more or less situate at L’Anse Fourmi in the parish of
St. John in the island of Tobago (being a portion of a larger parcel of land
originally comprised TWO HUNDRED AND TWENTY ONE (221) ACRES
AND THIRTY (30) PERCHES) be the same more or less and bounded on
the North by the Caribbean Sea, on the South partly by the Northside Road
and partly by the Caribbean Sea and partly by State Lands and on the West
by the Sea or howsoever otherwise the same may be butted, bounded,
known or described (“the L’Anse Fourmi Estate”). Save and except the
following parcels of land subsequently sold to diverse persons, namely:
i. ALL AND SINGULAR that certain parcel of land comprising
TEN (10) ACRES be the same more or less purchased by one
Ricki Ganase and others by Deed No. 5317 of 1995;
ii. ALL AND SINGULAR that certain parcel of land comprising SIX
(6) ACRES TWO (2) RODS AND TWO POINT FIVE (2.5)
PERCHES purchased by Jennifer Bryant Hilton-Clarke by Deed
No. 9054 of 1992;
iii. ALL AND SINGULAR that certain parcel of land comprising
TEN (10) ACRES purchased by the Tobago House of Assembly
pursuant to the Order of Mr. Maurice Corbin in Arbitration
Proceedings.
Page 3 of 108
[2] Both the Claimant and the First-named Defendant are seeking Declarations
that they are the fee simple owner of the L’Anse Fourmi Estate by reason
of competing Deeds which both ultimately derive their title from the
Third-named Defendant. It is in these circumstances that the Court is being
asked to determine which of the competing Deeds takes priority and
ultimately who is the true and rightful owner of the L’Anse Fourmi Estate.
THE CLAIM [3] By Amended Writ of Summons, filed on the 5th November, 2003, and
Amended Statement of Claim, filed on the 5th December, 2003, the
Claimant is seeking the following reliefs:
i. A Declaration that the Claimant is the fee simple owner of the
L’Anse Fourmi Estate;
ii. Aggravated and/or exemplary damages for conspiracy to cheat
and defraud the Claimant in respect of the L’Anse Fourmi Estate;
iii. Damages for fraud;
iv. A Declaration that the declaration purportedly made by consent
on the 24th June, 2003 and entered on the 4th July, 2003 in H.C.A
No. T 99 of 2000 is not binding and of no effect with relation to
the Claimant, its successors and assigns;
v. A Declaration that the purported Deed, dated the 10th November,
1997, which the Third-named Defendant purported to convey the
L’Anse Fourmi Estate to the First-named Defendant was
fraudulent;
Page 4 of 108
vi. A Declaration that the registration of the aforementioned Deed
on the 29th July, 2003 as No. 02872680 is null and void and of no
effect and that the Registrar General be directed to act
accordingly and cancel the said registration;
vii. Alternatively, a Declaration that the said declaration dated the
25th June, 2003 and the consequential registration of the said Deed
dated the 10th November, 1997 on the 29th July, 2003 are not
binding upon the Claimant, its successors and/or assigns;
viii. And further or alternatively, a Declaration that the said Deed by
reason of its registration on the 29th July, 2003 is subject to all
prior interests and encumbrances. In particular, it is subject to
Deed No. 41661 of 2002 made between the Claimant and the
Third-named Defendant, dated the 28th December, 2001 and duly
registered on the 28th February, 2002;
ix. An Injunction prohibiting the First and/or Second-named
Defendants from selling, leasing, mortgaging, developing
building upon, walking, driving, entering upon or otherwise
dealing with the said Estate or any part thereof, whether by
themselves, their servants, agents, directors, associates,
successors, assigns, mortgages, bankers and financiers or
howsoever otherwise.
[4] It is the Claimant’s case that by Deed, dated the 5th July, 1995 and
registered as No. 13372 of 1995, it became the fee simple owner of the
L’Anse Fourmi Estate. However, the sons of the Third-named Defendant –
John and Paul Hilton Clarke – purported to act as controlling directors of
the Claimant Company and sold the L’Anse Fourmi Estate to the Third-
Page 5 of 108
named Defendant by Deed dated the 28th June, 1996 and registered as No.
13722 of 1996.
[5] David Kemp and Rolf Berthold (“Kemp and Berthold”), shareholders of
the Claimant, sued1 the Third-named Defendant, his sons and the
Claimant Company alleging that the Third-named Defendant’s sons had
exercised their directors’ powers fraudulently and together with the Third-
named Defendant had conspired to cheat and defraud the Claimant
Company and its shareholders by the fraudulent conveyance of the L’Anse
Fourmi Estate.
[6] Kemp and Berthold caused a lis pendens to be registered, inter alia, against
the Claimant Company and the Third-named Defendant on the 4th and 14th
February, 1997 in respect of the High Court matter. These lis pendens were
re-registered in 2001.
[7] Subsequently, the Second-named Defendant purported to enter into a
written agreement with the Third-named Defendant to purchase the
L’Anse Fourmi Estate for the sum of one million, three hundred thousand
dollars United States currency (US$1.3M). However, on the 20th May, 2009
the Second-named Defendant began High Court proceedings2 against the
Third-named Defendant for, inter alia, specific performance of the alleged
written agreement to purchase the L’Anse Fourmi Estate. Pursuant to these
proceedings, the Second-named Defendant registered his own lis pendens
in respect of the L’Anse Fourmi Estate on the 31st October, 2000.
1 H.C.A. No. T 29/1997
2 H.C.A. No. T 99/2000
Page 6 of 108
[8] During the period, October, 2001 to February, 2002, Kemp and Berthold
entered into negotiations with all the Defendants herein and the sons of the
Third-named Defendant to resolve the disputes among the parties,
including the High Court actions that were instituted.
[9] Consequent to the negotiations, the parties all agreed to the following (“the
Compromise Agreement”):
i. As proposed by the Second-named Defendant, the sons of the
Third-named Defendant are to resign as directors and surrender
and/or transfer their twenty percent (20%) shareholding in the
Claimant Company, as follows:
a. Ten percent (10%) shareholding in the
Claimant Company to be held by the Second-
named Defendant and/or his nominee: Lord
Thurlow, a British National; and,
b. Ten percent (10%) shareholding in the
Claimant Company to be held by one Robert
Noonan, a British National.
ii. In exchange for the ten percent (10%) shareholding in the
Claimant Company, the Second-named Defendant to withdraw
his High Court action and its associated lis pendens;
iii. In exchange for ten percent (10%) shareholding, Robert Noonan
to pay to the sons of the Third-named Defendant the sum of two
hundred and fifty thousand dollars United States currency
(US$250,000.00);
Page 7 of 108
iv. The Third-named Defendant to re-convey the L’Anse Fourmi
Estate to the Claimant Company and thereupon, Kemp and
Berthold to discontinue their High Court action;
v. Robert Noonan to negotiate, in good faith, with Kemp, Berthold
and their associates to acquire control of and/or substantial
shareholding in the Claimant Company with a view to
developing the L’Anse Fourmi Estate into a Dive Resort and Eco-
Lodge.
[10] In performance of the parties’ obligations under the compromise
agreement, the following acts were done:
i. The Third-named Defendant re-conveyed the L’Anse Fourmi
Estate to the Claimant Company by Deed dated the 28th
December, 2001 and registered on the 28th February, 2002 as No.
00415105 of 2002;
ii. Robert Noonan, on or about the 1st March, 2002, paid to the
Third-named Defendant’s sons the sum of two hundred and fifty
thousand dollars United States currency (US$250,000.00);
iii. The Third-named Defendant’s sons resigned from the Claimant
Company and executed share transfers of their twenty percent
(20%) shareholding to Robert Noonan, the Second-named
Defendant and his associate nominee Lord Thurlow;
iv. The Claimant Company, in accordance with the provisions of the
FOREIGN INVESTMENT ACT, CHAP. 70:07, applied for a
licence to transfer the shares into the names of Robert Noonan
and Lord Thurlow.
Page 8 of 108
[11] Despite the foregoing, the Second-named Defendant has unlawfully and
fraudulently:
i. Objected to and blocked the grant of a licence to transfer the
shares into the names of Robert Noonan and Lord Thurlow;
ii. Demanded a controlling interest in the Claimant Company; and,
iii. Refused to lift his lis pendens on the L’Anse Fourmi Estate.
There has since been a breakdown and suspension of the discussions
between the parties and as a result, the acts of the Second-named
Defendant has caused loss, damage and injury to the Claimant.
[12] Thereafter, the First and Second-named Defendants together with the
Third-named Defendant embarked upon a fraudulent course of conduct so
as to injure the Claimant Company. The Particulars of Fraud committed
against the Claimant are as follows:
i. Purporting to issue a Summons dated the 24th June, 2003 for
hearing the next day, the 25th June, 2003, in the High Court in
Tobago when no Civil Proceedings were due to be heard.
Further, purporting to abridge the time for the service of the said
Summons and dispensing with the service of the Writ and
Statement of Claim, as amended;
ii. Purporting to join the First-named Defendant as a Claimant in
that action and to amend the Writ and Statement of Claim to seek
a Declaration that the First-named Defendant is beneficially
Page 9 of 108
entitled to the L’Anse Fourmi Estate pursuant to the written
agreement dated the 20th June, 1997;
iii. Purporting to rely on a Deed of Conveyance allegedly executed
on the 17th September, 1997 in favour of the First-named
Defendant upon the direction of the Second-named Defendant.
However, the First-named Defendant was not in existence on the
17th September, 1997;
iv. Fraudulently abusing the Court’s process by seeking a
Declaration, by consent, contrary to the interest of a third party,
namely the Claimant;
v. Unlawfully and fraudulently purporting to seek such relief in
relation to a Deed allegedly executed on the 17th September, 1997
when in fact no such Deed, then or now, existed;
vi. Unlawfully and fraudulently purporting to convey the L’Anse
Fourmi Estate to the First-named Defendant on or about the 17th
September, 1997 which on that date did not exist;
vii. Unlawfully and fraudulently procuring the oath of the Third-
named Defendant’s Attorney-at-Law by way of an Affidavit of
Execution of Brian Lee Kelshall sworn on or about the 29th July,
2003 purporting to depose to the execution of the said Deed
allegedly made on the 10th November, 1997;
viii. Fraudulently purporting to register a Deed of Conveyance
allegedly dated and executed on the 10th November, 1997
claiming to convey the L’Anse Fourmi Estate to the First-named
Defendant in consideration of the sum of one million, three
hundred thousand dollars United States currency (US$1.3M).
Page 10 of 108
[13] The Claimant contended that based on the foregoing the Defendants have
caused loss and damage to the Claimant including loss in the sum of one
million, three hundred thousand dollars United States currency (US$1.3M)
together with loss of profits of the development of the L’Anse Fourmi
Estate as a Dive Resort and Eco-Lodge.
THE DEFENCE AND COUNTERCLAIM OF THE FIRST-NAMED
DEFENDANT
[14] The First-named Defendant filed its Defence on the 22nd December, 2003
wherein it acknowledged that by Deed No. 13372 of 1995 the Third-named
Defendant conveyed the fee simple in the L’Anse Fourmi Estate to the
Claimant. It was pleaded further that by Deed No. 13722 of 1996, the
Claimant re-conveyed the L’Anse Fourmi Estate to the Third-named
Defendant.
[15] Thereafter, by agreement dated the 20th June, 1997, the Third-named
Defendant agreed to convey the fee simple in the L’Anse Fourmi Estate to
the Second-named Defendant. The First-named Defendant contended that
the effect of the execution of the agreement of sale was to transfer the
beneficial interest in the L’Anse Fourmi Estate to the Second-named
Defendant, who was to hold the said interest for the First-named
Defendant pending its incorporation. The First-named Defendant was duly
incorporated by the Second-named Defendant on the 18th September, 1997.
[16] The First-named Defendant averred that by Deed – dated the 10th
November, 1997 and registered on the 29th July, 2003 – the Third-named
Page 11 of 108
Defendant, on the instruction of the Second-named Defendant, conveyed
the fee simple in the L’Anse Fourmi Estate to the First-named Defendant,
the effect of which was to transfer the legal interest in the L’Anse Fourmi
Estate to the First-named Defendant as of the 10th November, 1997.
[17] The following was conceded by the First-named Defendant:
i. The existence of High Court Action T-29 of 1997 instituted by the
Claimant and T-99 of 2000 instituted by the Second-named
Defendant and the consequent lis pendens that was entered in
respect of both matters.
ii. In relation to High Court Action T-29 of 1997, it had constructive
notice of the claim made regarding the L’Anse Fourmi Estate.
However, by virtue of the dismissal there was no decree which
affected the First-named Defendant’s title and/or dealings with
and in respect of the L’Anse Fourmi Estate.
iii. With regard to High Court T-99 of 2000, it averred that any
subsequent mortgagee or purchaser of the said lands would have
had express notice of the Second-named Defendant’s claim and
bound by the decree in the said action.
iv. The Second-named Defendants entered into an agreement to
purchase the L’Anse Fourmi Estate from the Third-named
Defendant.
v. Kemp and Berthold entered into negotiations with the parties to
seek a resolution of the issues.
[18] The First-named Defendant denied that:
Page 12 of 108
i. It entered into a Compromise Agreement with the Claimant
and/or any of the other Defendants;
ii. The Claimant is the lawful owner of the L’Anse Fourmi Estate.
The Claimant, by reason of the agreement of sale to the Second-
named Defendant, had notice that the only entity which had any
legal right to the L’Anse Fourmi Estate is the First-named
Defendant and Deed No. 00415105 of 2002 did not pass any title
to the Claimant;
iii. The Claimant is, or was, at any material time a purchaser for
value of the L’Anse Fourmi Estate. Pursuant to the High Court
Action No. T99 of 2000 and the lis pendens, the Claimant had
constructive notice of the agreement for sale to the Second-
named Defendant at the time of the alleged execution and
registration of Deed No. 00415105 of 2002. Consequently, the
equitable title to the said lands had been duly vested in the
Second-named Defendant by virtue of the agreement for sale;
iv. It committed any unlawful and/or fraudulent act(s) in relation to
the L’Anse Fourmi Estate;
v. The Claimant suffered any loss and/or damage as a result of any
act(s) committed by it.
[19] The First-named Defendant counterclaimed against the Claimant for
trespass and is seeking the following reliefs:
i. A Declaration that the First-named Defendant is the fee simple
owner of the L’Anse Fourmi Estate;
Page 13 of 108
ii. An Injunction restraining the Claimant by itself, its directors,
servants and/or agents from entering onto the L’Anse Fourmi
Estate and/or interfering with the First-named Defendant’s
exclusive possession, occupation and use of the same and/or in
any way interfering with the First-named Defendant, its
directors, officers, servants and/or agents and/or any personal
lawfully on the same with the First-named Defendant’s consent;
iii. Damages for trespass.
THE DEFENCE OF THE SECOND-NAMED DEFENDANT
[20] The Second-named Defendant’s Defence filed on the 13th July, 2004 is
identical to that of the First-named Defendant’s except that the former did
not make a counterclaim.
THE DEFENCE AND COUNTERCLAIM OF THE THIRD-NAMED
DEFENDANT
[21] The Third-named Defendant filed his Defence on the 22nd December, 2004
wherein he acknowledged that by Deed No. 13372 of 1995 he conveyed the
fee simple in the L’Anse Fourmi Estate to the Claimant pursuant to an
agreement between them dated the 20th September, 1994 known as the
“Mutual Confidential, Non-circumvention and Consortia Partnership
Agreement” (“the Partnership Agreement).
[22] Accordingly, the Claimant’s possession of the L’Anse Fourmi Estate was
subject to the terms and provisions of the Partnership Agreement. By
Clause 2.7 of the said agreement, the Third-named Defendant declared
Page 14 of 108
null and void the contract for sale and purchase of the L’Anse Fourmi
Estate as recorded in Deed No. 13372 of 1995. Consequently, the Claimant
re-conveyed the L’Anse Fourmi Estate to the Third-named Defendant by
Deed No. 13722 of 1996 which was executed by his sons – John Andrew
Hilton-Clarke and Paul Christopher Hilton-Clark.
[23] The Third-named Defendant contended that his sons acted as controlling
directors of the Claimant Company by virtue of Clause 2.8 of the
Partnership Agreement as he was entitled to direct the assigning of the
exercise of all rights and privileges of the unallocated shares of the
Claimant Company to his sons. The rights and privileges of the
unallocated shares together with the rights and privileges of the shares of
the Third-named Defendant’s sons entitled them to the legitimate control
of the Board and General Meeting of the Claimant Company.
[24] It was acknowledged by the Third-named Defendant that:
i. There was in existence High Court Action T-29 of 1997 and the
registration, and re-registration, of lis pendens with regard to the
L’Anse Fourmi Estate. However, he stated that on the 22nd April,
2002, the said action was dismissed by Smith J. (as he then was)
and thereafter he was not bound by an any claim (s) made by the
Claimant in relation to the said action;
ii. He entered into a written agreement for the sale of the L’Anse
Fourmi Estate with the Second-named Defendant. He pleaded
that the effect of this agreement was to transfer the beneficial
interest in the L’Anse Fourmi Estate to the Second-named
Page 15 of 108
Defendant. Accordingly, by Deed – dated the 10th November,
1997 and registered on the 29th July, 2003 – the Second-named
Defendant duly conveyed the fee simple in the L’Anse Fourmi
Estate to the First-named Defendant as of the 10th November,
1997;
iii. The Second-named Defendant instituted proceedings in the High
Court in relation to the agreement of sale for the L’Anse Fourmi
Estate. Further, that the Second-named Defendant registered his
own lis pendens on the L’Anse Fourmi Estate thereby giving
express notice of the Second-named Defendant’s claim to the
L’Anse Fourmi Estate;
iv. He executed the alleged Deed, dated the 28th December, 2001, in
favour of the Claimant and this Deed was at all times subject to
the prevalent rights of the Deed dated the 10th November, 1997
that had transferred the legal interest in the L’Anse Fourmi Estate
to the First-named Defendant.
[25] The Third-named Defendant conceded that discussions were held by
Kemp and Berthold with all parties herein but he denied that he entered
into the Compromise Agreement with the Claimant and/or any of the
other parties. Further he averred that it was the failure of the Claimant
Company to agree with the First and Second-named Defendants on terms
so that the Second-named Defendant would discontinue High Court
Action No. T99 of 2000 that caused the breakdown in the negotiations.
[26] It was denied by the Third-named Defendant that the Claimant is the
lawful owner of the L’Anse Fourmi Estate. The Third-named Defendant
Page 16 of 108
contended that Deed No. 00415105 of 2002, dated 28th December, 2001 and
registered on the 28th February, 2002, was ineffective to pass title to the
Claimant and that the Claimant was aware of this fact by virtue of the
aforementioned discussions.
[27] Further, the Third-named Defendant denied committing any unlawful
and/or fraudulent acts in regard to the L’Anse Fourmi Estate or causing
the Claimant Company to suffer any loss and/or damage and
counterclaimed for the following reliefs:
i. A Declaration that Deed No. 004151005 of 2002 was executed and
registered by reason of negotiations by exchange of emails that
the directors, officers and shareholders of the Claimant
Company, namely David Kemp, Ronald John Geddes, John
Andrew Hilton-Clarke, Paul Christopher Hilton-Clarke, Rolf
Berthold, Fenchurch Holdings Limited and Marcia Washington
should resign and relinquish all their interest in the Claimant
Company in return for a settlement of five hundred and fifty
thousand dollars United States currency (US$550,000.00);
ii. The abovementioned Deed be declared null and void due to the
fraud perpetrated by Kemp and Berthold, directors of the
Claimant Company as they did not honour their part of the
aforementioned arrangement and instead seized control of the
Claimant Company with the intention of selling the Claimant
Company for ten (10) times the amount of the agreed settlement.
Page 17 of 108
THE CLAIMANT’S REPLY TO THE FIRST AND SECOND-NAMED
DEFENDANTS’ DEFENCE
[28] The Claimant filed its Reply to the First-named Defendant’s Defence and
Counterclaim on the 18th February, 2004 and its Reply to the Second-
named Defendant’s Defence on the 5th October, 2004. Both Replies are
similar and will be dealt with together.
[29] With regard to High Court Action No. T-29 of 1997, the Claimant
contended that the matter was resolved between the parties and not
adjudicated upon by the Court; as such the parties allowed the said action
to be dismissed without any formal decision on the merits of the
underlying disputes. Rather, it was partially settled by the re-conveyance
of the L’Anse Fourmi Estate to the Claimant Company by Deed No.
00415105 of 2002.
[30] The Claimant asserted that if the First-named Defendant enjoys any
interest under the alleged agreed for sale, dated the 20th June, 1997, that
interest became merged into the Deed dated the 10th November, 1997 –
which Deed was at all material times void and fraudulent against the
Claimant for non-registration.
[31] Further, the Claimant argued that by reason of the admitted negotiations
and the matters pleaded in High Court Action No. T-99 of 2000, against the
First and Third-named Defendants, they are now estopped from relying
upon any alleged Deed dated 10th November, 1997 and any right, interest
or title to the L’Anse Fourmi Estate by virtue of the said Deed.
Page 18 of 108
[32] The Claimant went on to deny that any of the Defendants ever sought to
rely upon or referred to any alleged Deed dated the 10th November, 1997 in
the course of negotiations.
[33] Further, the Claimant argued that if the registration of the said Deed dated
the 10th November, 1997 is of any effect it is expressly subject to the
Claimant’s lis pendens in the High Court Action No. T-29 of 1997 and to
Deed No. 00415105 of 2002. In addition, the Claimant contended that the
Second-named Defendant’s lis pendens is of no effect and not binding as
alleged, or at all; Indeed the Claimant pleaded that it is subject to the
Claimant’s prior lis pendens in High Court Action No. T-29 of 1997.
[34] The Claimant denied that the Consent Order in High Court Action T-99 of
2000 is binding and/or valid as alleged, or at all.
[35] In response to the First-named Defendant’s Counterclaim, the Claimant
denies:
i. The existence of any Deed allegedly dated the 10th November,
2003 and any such Deed is fraudulent, void and of no effect;
ii. The First-named Defendant was at all material times in
possession and/or the owner of the L’Anse Fourmi Estate. The
Claimant admitted to offering the L’Anse Fourmi Estate for sale;
entering the L’Anse Fourmi Estate and removing the sign
unlawfully placed on thereon.
Page 19 of 108
THE CLAIMANT’S REPLY TO THE THIRD-NAMED DEFENDANT’S
DEFENCE
[36] The Claimant pleaded that by reason of the execution of Deed – dated the
28th December, 2001 - and the agreement leading thereto, the Third-named
Defendant is now estopped from asserting any of the matters in
[paragraphs 1 and 2]. It was also pleaded that even if Deed No. 13372 of
1996 was executed pursuant to an agreement in writing dated the 28th
November, 1994, it supersedes the agreement dated the 20th September,
1994.
[37] The Claimant reiterated that:
i. High Court Action No. T-29 of 1997 was resolved between the
parties and not adjudicated upon by the Court; as such the
parties allowed the said action to be dismissed without any
formal decision on the merits of the underlying disputes. Rather,
it was partially settled by the re-conveyance of the L’Anse
Fourmi Estate to the Claimant Company by Deed No. 00415105
of 2002;
ii. If the Third-named Defendant enjoyed any alleged interest under
the alleged agreement for sale dated the 20th June, 1997, that
interest became merged into the alleged Deed dated 10th
November, 1997 which said Deed was at all material times
fraudulent and void against the Claimant Company for non-
registration;
Page 20 of 108
iii. If the registration of the Deed dated 10th November, 1997 on the
29th July, 2003 is of any effect, it is expressly subject to the
Claimant’s lis pendens in High Court Action No. T-29 of 1997 and
to Deed No. 00415105 of 2002;
iv. The Second-named Defendant’s lis pendens is of no effect and it
was denied that the same is binding as alleged, or at all;
v. The Consent Order in High Court Action No. T-99 of 2000 is not
valid and/or binding as alleged, or at all.
[38] The Claimant averred that the Third-named Defendant, as principal and
on behalf of his sons, was a participant in the negotiations that led to the
compromise agreement and therefore had knowledge of the matters
therein.
[39] It was asserted by the Claimant that by reason of the admitted negotiations
and the matters pleaded in High Court Action No. T-99 of 2002 against the
Third-named Defendant and Second-named Defendant, whether as
servant and/or agent of the First-named Defendant or as principal in his
right, are now estopped from relying upon any alleged Deed dated the 10th
November, 1997 and any right, interest or title to the L’Anse Fourmi Estate
by virtue of the same.
[40] The Claimant denied the particulars in the Counterclaim of the Third-
named Defendant and stated that the Third-named Defendant is not
entitled to any of the reliefs being sought.
Page 21 of 108
EVIDENCE
CLAIMANT
[41] The evidence of the Claimant is contained in the Witness Statements of:
i. Dave Kemp filed on the 25th July, 2007; and,
ii. Rolf Berthold filed on the 19th November, 2007.
DAVE KEMP
[42] This witness testified that he is a shareholder and Director of the Claimant
Company. He outlined the case against the Defendants’ as follows:
“Simply that sometime between 28 February, 2002 and 23 June 2003
Ranjit Wijetunge, Anse Fourmi Beach and Rainforest Resort Limited
together with Dr. Alric Beresford Hilton-Clarke conspired with each other
to deprive [and] defraud the Plaintiff of the ownership and development of
the L’Anse Fourmi Estate with the potential as an eco-resort and dive lodge
by reliance upon alleged deeds of September 1997 or November 1997.”3
[43] He went on to recollect the circumstances in which he met fellow Director
Rolf Berthold who had recently employed the Third-named Defendant,
Alric Beresford Hilton-Clarke, as the Maître d’hôtel for the Grafton
Restaurant. The witness described the Third-named Defendant as friendly
and helpful. During conversations with him, the Third-named Defendant
3 Para. 2 of the Witness Statement of Dave Kemp filed on the 25
th July, 2007
Page 22 of 108
indicated that he had a plot of land that he wished to sell. The Mr. Kemp
subsequently went to L’Anse Fourmi where he was shown the plot of land
known as the “L’Anse Fourmi Estate”.
[44] The Third-named Defendant explained to Mr. Kemp that he had expended
a substantial sum of money to survey the land and obtain planning
permission to develop it because at the time there was a prospective buyer.
However, the Government did not allow it and reneged leaving him with
immense debt.
[45] The witness explained that his intention was to purchase the L’Anse
Fourmi Estate for the sum of five hundred thousand dollars ($500,000.00)
and seek to build a high end luxury home development on it. To this end
he enlisted the assistance of Rolf Berthold who had considerable expertise
in hotel development and international marketing, and Ron Geddes, an
Australian Solicitor, to arrange corporate funding for the project.
[46] Pursuant to this, Ron Geddes drafted an agreement dated the 20th
September, 19944 which provided, inter alia, for:
i. The sale of the L’Anse Fourmi Estate to the Claimant;
ii. The Third-named Defendant to obtain all outline and detailed
planning permissions;
iii. The Third-named Defendant would be paid one hundred and
sixty pounds sterling (£160,000.00) at the prevailing rate of
exchange in consideration of obtaining the planning permissions;
4 LAFT 1 annexed to the Witness Statement of Dave Kemp filed on the 25
th July, 2007
Page 23 of 108
iv. The agreement to be void in default of the Third-named
Defendant’s obligation; and,
v. The formation of the Claimant Company with the first
shareholders and directors to be Paul Hilton-Clarke, John Hilton-
Clarke, Ron Geddes and Rolf Berthold.
[47] The Third-named Defendant informed Mr. Kemp that he had already
obtained planning permission. However, the Mr. Kemp stated that it was
only after various agreements were signed and the L’Anse Fourmi Estate
conveyed that he discovered that planning permission had lapsed.
[48] A subsequent agreement was entered into on or about 28th November,
19945, which superseded the agreement of September, 1994. The new
agreement provided for the sale of the L’Anse Fourmi Estate to the
Claimant Company. Further, the witness personally undertook to pay the
Third-named Defendant the sum of one hundred and sixty pounds
sterling (£160,000.00) from the sale of the lands should planning
permissions not be forthcoming.
[49] Ms. Deborah Moore-Miggins, Attorney-at-Law, was retained to
incorporate the Claimant Company6 and to complete the sale of the lands
to the Claimant pursuant to the November, 1994 agreement. Upon the
formation of the Claimant Company, the witness stated that in addition to
himself the shareholding was allocated among Paul Hilton-Clarke, John
Hilton-Clarke, Marcia Washington, Rofl Berthold and James Kemp.
5 LAFT 2 annexed to the Witness Statement of Dave Kemp filed on the 25
th July, 2007
6 LAFT 3 annexed to the Witness Statement of Dave Kemp filed on the 25
th July, 2007
Page 24 of 108
[50] Mr. Kemp testified asserted that he provided the monies for the purchase
of the L’Anse Fourmi Estate but the exchange rate was low and it was not
enough to repay the banks and other debtors as reflected in Deed No.
13372 of 1995.
[51] Thereafter, he returned to London accompanied by Ron Geddes to seek
funding for the project. The witness testified further that he spent a large
sum of money on professional fees for (architects, contractors etc.) plans
and projections. Unfortunately, he could not locate anyone keen on
investing in Tobago and as such no funds were forthcoming. Ron Geddes
subsequently retired from the Company by letter dated the 28th January,
1998 to Mr. Ewart Thorne QC.
[52] The Claimant Company placed two (2) plots of the L’Anse Fourmi Estate
for sale in order to pay the Third-named Defendant. However, the Third-
named Defendant was displeased with this course of action. Mr. Kemp
consequently sought to arrange a loan to provide the sum owing to the
Third-named Defendant, but the Third-named Defendant refused this
course and instead asserted that he had a better offer on the land. The Mr.
Kemp contended that he sought to explain to the Third-named Defendant
that the Estate was no longer his but the latter refused to accept this.
[53] This witness received a letter, dated the 19th December, 1996, from Bryan
Lee Keshall, an Attorney-at-Law in Tobago. The letter in effect stated that
Paul and John Hilton-Clarke, acting on behalf of the Company had
purported to re-convey the L’Anse Fourmi Estate to the Third-named
Page 25 of 108
Defendant by Deed No. 13772 of 1996 and executed on the 28th June, 19967.
Mr. Kemp reported this matter to Deborah Moore-Miggins and the Police.
[54] Consequently, Mr. Kemp and Rolf Berthold sued the Third-named
Defendant along with Paul and John Hilton-Clarke8. Two lis pendens were
also filed on the 4th and 14th February, 19979 pursuant to the REMEDIES
OF CREDITORS ACT, CHAP. 8:09 and were re-registered in 2000.
Negotiations were initiated with the Third-named Defendant with a view
to having the litigation settled but it was not possible to bridge the gap
between the parties.
[55] It came to the attention of Mr. Kemp during a flight from Tobago to
England that L’Anse Fourmi Estate was up for sale by a company called
Sea Leisure. He immediately contacted a Barrister in England to put Sea
Leisure on notice, by letter dated the 22nd November, 199710, that the Estate
was currently the subject of a High Court Action.
[56] Thereafter, Mr. Kemp made inquiries about the Sea Leisure Company and
discovered that it was being run by the Second-named Defendant. Around
the same time, the Third-named Defendant’s Attorney-at-Law sent a
promissory note in which the Third-named Defendant undertook to pay to
the Claimant Company five hundred thousand dollars ($500,000.00) by
July, 1999 or within two (2) months of the sale of the Estate11. This was
never honoured by the Third-named Defendant.
7 LAFT 4 annexed to the Witness Statement of Dave Kemp filed on the 25
th July, 2007
8 H.C.A No. T-29 of 1997
9 LAFT 5 annexed to the Witness Statement of Dave Kemp filed on the 25
th July, 2007
10 LAFT 6 annexed to the Witness Statement of Dave Kemp filed on the 25
th July, 2007
11 LAFT 7 annexed to the Witness Statement of Dave Kemp filed on the 25
th July, 2007
Page 26 of 108
[57] Sometime in 1997 or 1998, Mr. Kemp was introduced to Robert Noonan, a
property developer, who had been invited by the Second-named
Defendant to visit the L’Anse Fourmi Estate with the aim of funding its
purchase and development. Mr. Kemp alleged that Robert Noonan
disclosed that he was not aware of any dispute regarding the Estate.
However, he (Noonan) was keen to invest in the Estate and offered to
mediate as an honest broker should the occasion arise.
[58] On the 16th February, 1998, the Second-named Defendant instituted a High
Court Action12 against the Third-named Defendant seeking specific
performance of an alleged agreement for sale of the L’Anse Fourmi Estate
made on about the 20th June, 1997. Alternatively, the Second-named
Defendant claimed rescission and the return of the sum of thirty thousand
dollars United States currency (US$30,000.00) which was paid as a deposit.
Mr. Kemp believed that these proceedings lapsed in May, 2000 and were
never proceeded with.
[59] Mr. Kemp arranged a meeting with the Second-named Defendant
sometime in 1999 in London to seek a resolution to the matter. However,
their personalities clashed and negotiations proved futile.
[60] On the 29th May, 2000, the Second-named Defendant instituted new
proceedings13, albeit identical to the previous proceedings, against the
Third-named Defendant. Further, the Second-named Defendant registered
a lis pendens on or about the 31st October, 2000 in respect of this action and
the L’Anse Fourmi Estate.
12
HCA No. 359 of 1998 13
HCA No. T-99 of 2000
Page 27 of 108
[61] Around this time, negotiations via e-mail were initiated by Mr. Kemp and
Rolf Berthold with Paul Hilton-Clarke to resolve the matter. By letter dated
the 9th June, 2000, David Yung, the Attorney-at-Law for the First-named
Defendant, proposed:
“Contribution by our client to Berthold and Kemp US$300,000.00
Contribution by Dr. Clarke to Berthold and Kemp US$250,000.00
Amount to be paid to Berthold and Kemp US$550,000.00
Balance due to Dr. Clarke by our Client US$1,179,000.00
Less Dr. Clarke’s above contribution US$250,000.00
Net balance payable to Dr. Clarke US$920,000.00
However, the settlement proposal is subject to the following conditions:
1. Unconditional withdrawal of H.C.A #29/97 by Berthold and Kemp and
the associated lis pendens on the L’Anse Fourmi Estate at their cost and
expense
2. Unconditional acknowledgment by Berthold and Kemp that they will
accept the sum of US$550,000.00 in full and final settlement of all claims
whatsoever against Dr. Clarke, John Clarke and Paul Clarke, L’Anse
Fourmi Trust Holding Company Limited and the L’Anse Fourmi Estate
...”
[62] Mr. Kemp proposed another condition which was communicated by letter
dated the 23rd June, 200014 to the effect that he and Rolf Berthold be paid
the said monies within one (1) month of that date. However, it became
evident to Mr. Kemp that Paul and John Hilton-Clarke were unable to
14
LAFT 10 annexed to the Witness Statement of Dave Kemp filed on the 27 July, 2007
Page 28 of 108
acquire the necessary monies to for this payment and as a consequence, the
settlement arrangement fell into abeyance.
[63] Thereafter, renewed attempts were made to achieve a resolution. A year
later a new arrangement was entered into with Robert Noonan who
proposed:
i. to pay to the Third-named Defendant two hundred and fifty
thousand dollars United States currency (US$250,000.00) in
settlement;
ii. that Mr. Kemp and Rolf Berthold would allow the Third-
named Defendant and his associates to acquire control and a
substantial shareholding in the Claimant Company with the
aim of developing the Estate as a dive centre.
John and Paul Hilton-Clarke were amenable to this agreement15 and the
latter confirmed the acceptance of this by emails dated the 5th, 6th and 13th
December, 201116.
[64] On the 18th February, 2002, Attorneys-at-Law for the First-named
Defendant exchanged letters with the Third-named Defendant’s Attorney-
at-Law formally settling High Court Action No. T-29 of 1997.17 Mr. Kemp
and Robert Noonan arranged for the two hundred and fifty thousand
dollars United States currency (US$250,000.00) to be forwarded to the
15
LAFT 11, 12 and 13 annexed to the Witness Statement of Dave Kemp filed on the 27th
July, 2007 16
LAFT 14 annexed to the Witness Statement of Dave Kemp filed on the 27th
July, 2007 17
LAFT 15 annexed to the Witness Statement of Dave Kemp filed on the 27th
July, 2007
Page 29 of 108
former’s Attorney-at-Law. However, there was a slight delay in its arrival
in Tobago as the monies were paid in two parts.
[65] Mr. Kemp asserted that the said monies were released to Lee Kelshall, the
Third-named Defendant’s Attorney-at-Law, to facilitate the following:
i. That the deed be stamped and registered in accordance with the
provisions of the REGISTRATION OF DEEDS ORDINANCE,
CHAP. 28:02 on the 28th February, 200218;
ii. John and Paul Hilton-Clarke cause the Claimant Company to be
continued under the COMPANIES ACT, CHAP. 81:01 and
resign, in writing, as directors from the Company;
iii. John and Paul Hilton-Clarke execute share transfers, both dated
1st March, 2002, of their twenty percent (20%) shareholding to
Robert Noonan, Second-named Defendant and the latter’s
associate nominee, Lord Thurlow. Ten percent (10%)
shareholding in the Claimant Company to be shared between
Lord Thurlow and the Second-named Defendant and the
remaining ten percent (10%) shareholding to Robert Noonan19;
iv. Paul and John Hilton-Clarke be paid the sum of two hundred
and fifty thousand dollars United States currency(US$250,000.00)
through Bryan Lee Kelshall on or about the 1st March, 200220; and,
v. High Court Action No. T-29 of 1997 was discontinued by
Memorandum of Full Satisfaction filed on the 25th March, 200221.
18
LAFT 16 annexed to the Witness Statement of Dave Kemp filed on the 27th
July, 2007 19
LAFT 17 annexed to the Witness Statement of Dave Kemp filed on the 27th
July, 2007 20
LAFT 18 annexed to the Witness Statement of Dave Kemp filed on the 27th
July, 2007 21
LAFT 19 annexed to the Witness Statement of Dave Kemp filed on the 27th
July, 2007
Page 30 of 108
[66] Thereafter, Robert Noonan and his associates continued negotiations in
good faith with Mr. Kemp and Rolf Berthold to acquire control of and/or a
substantial shareholding in the Claimant Company towards developing it
as dive resort and eco-lodge.
[67] The Claimant Company applied for a licence to transfer the shares into the
names of Robert Noonan and Lord Thurlow pursuant to the FOREIGN
INVESTMENT ACT, CHAP. 70:07 on the 21st June, 2002. In furtherance of
this, the Second-named Defendant sent copies of his passport and other
related information to be passed onto the Ministry of Finance for the
purpose of the said application.
[68] Sometime in August or September, 2002, Mr. Kemp caused his Attorneys-
at-Law to make inquiries at the Ministry of Finance regarding the said
application and discovered that the application was stalled pending the
consideration of a letter in opposition of the granting of the Application by
the Second-named Defendant.
[69] Mr. Kemp stated that despite the Second-named Defendant’s seemingly
cordial involvement in the resolution of the disputes regarding the Estate,
the latter was nevertheless:
i. Refusing to remove his lis pendens on the Estate; and,
ii. Seeking to ensure that he had a controlling or significant interest,
i.e. forty-nine percent (49%) in the Claimant Company.
This caused a breakdown in the talks between Robert Noonan and the
Claimant Company.
Page 31 of 108
[70] Mr. Kemp alleged that sometime in May, 2003, the Second and Third-
named Defendants made amendments to the matter that was still
subsisting in the High Court22 on the basis of a deed executed in 1997 by
the Third-named Defendant purporting:
i. To issue an interlocutory summons dated the 24th June, 2003 for
hearing the next day on the 25th June, 2003 in the High Court of
Tobago during a month when no civil proceedings were due to
be heard;
ii. To abridge the time for the service of the said summons;
iii. To join the First-named Defendant as a Claimant in the action;
iv. To amend the Writ and Statement of Claim to seek a Declaration
that the First-named Defendant is entitled to the L’Anse Fourmi
Estate pursuant to an agreement in writing dated the 20th June,
1997 and is/was entitled to the beneficial interest in the Estate
and by deed dated the 17th September, 1997 entitled to register
the said deed;
v. To dispense with the service of the Writ and Statement of Claim
as amended;
vi. To acquire the oath of Lee Kelshall by way of an execution of an
affidavit on or about the 29th July, 2003 attesting to the execution
of a deed allegedly some five and half years earlier, i.e. not the
17th September, 1997 but rather the 10th November, 1997;
22
HCA No. 9 of 2000
Page 32 of 108
vii. To register a deed of conveyance purportedly executed and dated
the 10th November, 1997 in consideration of one million, three
hundred thousand dollars United States currency (US$1.3M).
[71] By these amended proceedings, the Second and Third-named Defendants
sought a Declaration intended to adversely affect a third party. This, Mr.
Kemp contended, sought to deprive the Claimant Company of the value of
the Deed executed and registered in 2001 as part of the agreement made
with the consent of all parties. Mr. Kemp asserted that there was no
mention of this 1997 Deed in any communication and/or negotiations
before the Defendants approached the Court in June, 2003.
[72] Mr. Kemp stated that the Defendants have refused, despite several
requests for discovery, to disclose all or any written communications by
way of correspondence, faxes, emails or attendance that passed among
them and among those acting on their behalf that led to the alleged
agreement for sale, sale and deed of conveyance of the L’Anse Fourmi
Estate to the First-named Defendant.
[73] Mr. Kemp argued that no deed, allegedly executed on the 17th September,
1997 ever existed; nor was the First-named Defendant in existence at the
said time of the execution. Mr. Kemp further contended that he caused
searches to be made in relation to the monies allegedly paid by mortgage
by the Second-name Defendant to acquire the L’Anse Fourmi Estate but
found none.
Page 33 of 108
[74] He asserted that all the matters complained of were done dishonestly and
were intended to defeat the Claimant’s plans with the assistance of Robert
Noonan, to own and develop the L’Anse Fourmi Estate as an eco-lodge
and dive resort thereby causing loss to the Claimant Company.
ROLF BERTHOLD
[75] This witness testified that he is a shareholder and Director in the Claimant
Company. He is a Hotel Management and Resort Consultant by
occupation with over thirty (30) years experience.
[76] He asserted that the Claimant Company is the owner of the L’Anse Fourmi
Estate by virtue of the Deed dated the 28th December, 2001 and registered
as No. 00415105 of 200223. On the Estate, the Claimant Company proposed
to develop an eco-resort along with villas. Mr. Berthold sought to liaise
with MacLellan and Associates, International Resort Consultants, to advise
on the project and to prepare proposal plans. However, the Claimant
Company has been unable to proceed with this due to the uncertainty of
the current litigation.
[77] Mr. Berthold also testified that the Defendants’ reliance on the declarations
sought in the High Court action T-99 of 2000 and the alleged deed dated
the 17th September, 1997 or the 10th November, 1997 is fraudulent as the
First-named Defendant did not exist in law on the 17th September, 1997.
23
RB 1 annexed to the Witness Statement of Rolf Berthold filed on the 19th
November, 2007
Page 34 of 108
[78] Mr. Berthold recalled that he met the Third-named Defendant in the early
1990s. The Third-named Defendant was heavily indebted and Mr. Berthold
employed him at the Grafton Hotel where he was the General Manager at
the time. He further recalled that the Third-named Defendant was
extremely anxious to sell the L’Anse Fourmi Estate so as to save himself
from his creditors. The Third-named Defendant solicited the interest of Mr.
Berthold and Dave Kemp to purchase the Estate. Negotiations ensued
resulting in their first agreement in September, 1994 and then November,
1994. The Claimant Company acquired the L’Anse Fourmi Estate in July
1995 by Deed No. 13372 of 1995.
[79] Thereafter, the Third-named Defendant sought to introduce the Second-
named Defendant into the Claimant Company’s hotel resort project as
someone who was interested in the eco-tourist dive business. However, the
Claimant declined the collaboration with the Second-named Defendant as
they had different approaches to their respective projects.
[80] Mr. Berthold contended that in 1996 the Third-named Defendant enlisted
his sons – Paul and John Hilton-Clarke – to fraudulently use their powers
as directors of the Claimant Company to re-convey the L’Anse Fourmi
Estate to him for no consideration. The Claimant was never paid the
consideration referred to in Deed No. 13772 of 1996, executed on the 28th
June, 1996. Further, the Company was not the beneficiary of the alleged
promissory note from the Third-named Defendant.
[81] It was contended by Mr. Berthold that neither the First nor Second-named
Defendant was in a position to complete the alleged agreement with the
Page 35 of 108
Third-named Defendant in November, 1997. Further, the Defendants have
not pleaded and/or disclosed any evidence that the First or Second-named
Defendants paid or provided consideration for the alleged purchase price
of the L’Anse Fourmi Estate. Mr. Berthold asserted that the Defendants’
silence on this matter is consistent with the Claimant’s claim that the
September or November 1997 Deed is fraudulent.
[82] Mr. Berthold stated that as a result of the letter dated the 22nd November,
1997, from Jerome Lynch, Barrister, to the Second-named Defendant the
latter was put on actual notice of the claims that both himself and Dave
Kemp made in respect of the L’Anse Fourmi Estate. He stated further that
this letter should have been received by the Second-named Defendant on
or before the 22nd November, 1997, and therefore the alleged conveyance
could not have been executed in escrow on the 10th November, 1997,
pending the removal of the lis pendens or the dismissal of High Court
Action No. T-29 of 1997 as alleged on the endorsement of the said deed.
[83] In or about March, 1998, the First and/or Second-named Defendant
offered Robert Noonan a majority shareholding in the First-named
Defendant in consideration of him financing the purchase price of the
L’Anse Fourmi Estate evidenced by an Investment Proposal dated March,
199824. Mr. Berthold contended that in this proposal the First and Second-
named Defendants confirmed that as at March, 1998 there had been no
conveyance and the September or November, 1997 Deed purporting
otherwise is a fabrication.
24
RB 6 annexed to the Witness Statement of Rolf Berthold filed on the 19th
November, 2007
Page 36 of 108
[84] An offer to settle the 1997 High Court Action by Mr. Berthold and Dave
Kemp was reduced into writing by letter dated the 9th June, 2000. In it, Mr.
Berthold and Dave Kemp were to resign from the Claimant Company in
consideration of five hundred and fifty thousand dollars United States
currency (US$550,000.00). However, the money was not forthcoming and
as a result the proposal fell through.
[85] Mr. Berthold stated that Robert Noonan became involved in the dispute
among the parties sometime in 2001. Over the period October, 2001 and
February, 2002, Robert Noonan succeeded in settling all disputes among
the parties. The settlement was based on a six-point plan put forward by
the First and/or Second-named Defendant and resulted, inter alia, in the
28th December, 2001 conveyance of the L’Anse Fourmi Estate to the
Claimant Company.
[86] Pursuant to these negotiations:
i. The Third-named Defendant agreed to re-convey the L’Anse
Fourmi Estate to the Claimant, which he did by Deed dated 28th
December, 2001;
ii. John and Paul Hilton-Clarke to resign as directors and sell ten
percent (10%) of their shareholding in the Claimant to Robert
Noonan;
iii. John and Paul Hilton-Clarke to accept the sum of two hundred
and fifty thousand dollars United States currency (US$250,000.00)
to settle High Court Action T-29 of 1997; and,
iv. The Second-named Defendant agreed to withdraw High Court
Action T-99 of 2000 in exchange for ten percent (10%)
Page 37 of 108
shareholding in the Claimant Company to be held by him and/or
Lord Thurlow, his nominee.
[87] An exchange of letters followed on the 18th February, 2002. This, Mr.
Berthold contended, was primarily to facilitate the implementation of the
agreement that had been arrived at months before towards the end of 2001.
Prior to the letters, the Third-named Defendant had already executed a
deed, dated the 28th December, 2001, and registered same in favour of the
Claimant on the 26th February, 2002. As a result, on the 25th March, 2002
the Claimant Company filed a notice of full satisfaction in regard to 1997
High Court Action.
[88] Mr. Berthold averred that the acts of the Defendants in vesting ownership
of the Estate in the First-named Defendant was a clear attempt to seek an
illegitimate priority for a deed that for some five (5) years the parties had
proceeded on the basis was not in existence.
DEFENDANTS
[89] The evidence of the Defendants is contained in the Witness Statements of:
i. Alric Hilton-Clarke filed on the 16th November, 2007;
ii. Paul Hilton-Clarke filed on the 16th November, 2007;
iii. Ranjit Wijetunge filed on the 16th November, 2007; and
iv. David Yung filed on the 1st July, 2008.
Page 38 of 108
ALRIC HILTON-CLARKE
[90] The Third-named Defendant testified that he sold the L’Anse Fourmi
Estate to the Claimant Company in July, 1995 subject to the terms of a
Partnership Agreement dated September, 1994 between himself of the one
part and Paul Hilton-Clarke, John Hilton-Clarke, Dave Kemp, Rolf
Berthold and Ronald Geddes all of the other part.
[91] He further testified that the said Partnership Agreement was not
completed by Dave Kemp, Rolf Berthold and Ronald Geddes and he
consequently rescinded it in accordance with its terms. The result was that
the L’Anse Fourmi Estate was re-conveyed to him in June, 1996 by the
Claimant Company, which he contended was in the legitimate control of
Paul and John Hilton-Clarke – the first subscribers and only lawfully
appointed directors of the Claimant Company.
[92] Following the re-conveyance, the Third-named Defendant entered into
negotiations to sell the Estate. He subsequently entered into a written
agreement in June, 1997 to sell the L’Anse Fourmi Estate to the Second-
named Defendant. Pursuant to the said agreement, the Third-named
Defendant conveyed the Estate in September, 1997, on the instructions of
the Second-named Defendant, to the First-named Defendant Company –
controlled by the Second-named Defendant and Lord Thurlow.
[93] The First-named Defendant executed a mortgage to the Third-named
Defendant to secure the balance of the purchase price; the deeds to the
Estate were held in escrow pending the payment of the mortgage. During
Page 39 of 108
this time, the Second-named Defendant’s Attorney-at-Law, David Yung,
received a notification in November, 1997 of a lis pendens filed in the High
Court by Dave Kemp and Rolf Berthold affecting the title of the Estate.
[94] Consequently, negotiations were held between the Defendants, John
Hilton-Clarke, Paul Hilton-Clarke, Dave Kemp, Rolf Berthold and Robert
Noonan to establish terms to settle the two High Court Actions that were
instituted. Both High Court actions were asserting ownership of the
L’Anse Fourmi Estate and both registered lis pendens against it.
[95] The Third-named Defendant contended that sometime during 2000-2001
the parties came to a settlement. In accordance with the terms of this
settlement, Dave Kemp and Rolf Berthold would resign as directors;
relinquish all their shares in the Claimant Company and withdraw their
High Court Action and its associated lis pendens in return for a settlement
payment of five hundred and fifty thousand dollars United States currency
(US$550,000.00) to be financed by Robert Noonan.
[96] Under the terms of the settlement:
i. The Third-named Defendant was required to execute a new
conveyance of the L’Anse Fourmi Estate to the Claimant Company;
ii. Paul Hilton-Clarke, Dave Kemp and Rolf Berthold were all required
to resign as directors and relinquish all their shares in the Claimant
Company;
Page 40 of 108
iii. The Second-named Defendant, Lord Thurlow and Robert Noonan
were to be appointed directors in control of the Claimant Company
to develop a beach and rainforest resort on the Estate.
[97] The Third-named Defendant testified that it was agreed that it was only
when all the terms of the agreement were fulfilled that the Second-named
Defendant and Lord Thurlow would withdraw the claim against the
Third-named Defendant and the lis pendens against the Estate and
subsequently transfer the Estate to the Claimant.
[98] In December, 2001, the Third-named Defendant executed the new
conveyance of the L’Anse Fourmi Estate to the Claimant Company; Paul
and John Hilton-Clarke resigned as directors and relinquished all their
shares in the Company. However, Dave Kemp and Rolf Berthold failed to
resign as directors and/or relinquish their shares in the Claimant
Company pursuant to the terms of the settlement.
[99] The Third-named Defendant contended that throughout 2002 Dave Kemp
and Rolf Berthold continued their breach of the settlement and rejected the
settlement payment of five hundred and fifty thousand dollars United
States currency(US$550,000.00). Instead, Dave Kemp and Rolf Berthold
seized control of the Claimant Company and in so doing also seized
control of the L’Anse Fourmi Estate which they later sought to sell for ten
million dollars United States currency (US$10M).
[100] It was further contended by the Third-named Defendant that the
Claimant’s pleadings and list of documents filed in this matter revealed the
Page 41 of 108
plan orchestrated by Dave Kemp and Rolf Berthold to breach the
settlement terms in favour of their private agreement with Robert Noonan.
This agreement proposed to divide the shareholdings of the Claimant
Company between Dave Kemp and Rolf Berthold and to sell the said
shareholdings instead of accepting the settlement payment of five hundred
and fifty thousand dollars United States currency (US$550,000.00).
[101] In March, 2002, Dave Kemp and Rolf Berthold furthered their private
agreement with Robert Noonan by discontinuing their High Court Action
and removing their lis pendens so as to unencumber the Estate and later sell
it. The Third-named Defendant averred, however, that to his knowledge
the High Court Action No. T-29 of 1997 was dismissed by Justice Smith in
April, 2002 for the non-appearance of the parties.
[102] The Third-named Defendant contended that the settlement failed due to
the breach and non-completion by Dave Kemp, Rolf Berthold and Robert
Noonan. Consequently, the Second-named Defendant did not withdraw
his lis pendens in the High Court; nor did the Second-named Defendant and
Lord Thurlow cancel the 1997 conveyance of the L’Anse Fourmi Estate to
the First-named Defendant.
[103] In these circumstances, the Third-named Defendant regarded his
December, 2001 conveyance as invalid since he was not the legal owner of
the Estate in 2001 when it was conveyed to the Claimant Company. As the
settlement was incomplete, he sought to revoke the invalid conveyance of
the L’Anse Fourmi Estate in November, 2002 by registering his own lis
pendens and filing High Court Action T-139 of 2002 against the Claimant
Company, Dave Kemp and Rolf Berthold for fraud.
Page 42 of 108
[104] In July, 2003, High Court Action No. T-99 of 2000 was resolved by consent
order, which legally affirmed the Third-named Defendant’s 1997
conveyance of the L’Anse Fourmi Estate to the First-named Defendant.
[105] This action, the Third-named Defendant asserted is a retaliatory action by
Dave Kemp and Rolf Berthold to the failure of the settlement agreement.
He considered that his evidence made clear the invalidity of the 2001 Deed
and he is no longer in a position to influence the outcome of the matter.
PAUL HILTON-CLARKE
[106] This witness became aware that the Third-named Defendant – his father –
was the owner of the L’Anse Fourmi Estate in his early teens. The Estate at
the time was being used for agricultural purposes.
[107] Some years later, he was informed by the Third-named Defendant that the
latter proposed to sell the Estate to the Claimant Company. The Third-
named Defendant wished to secure his interests in the Claimant Company
and desired that Mr. Paul Hilton-Clarke and his brother, John Hilton-
Clarke, hold twenty percent (20%) of the Company until the balance of the
purchase price was received.
[108] Pursuant to this discussion, the “Mutual Confidential Non-Circumvention
and Consortia Partnership Agreement’ of 20th September, 1994 was drawn
up. It was reviewed by Mr. Paul Hilton-Clarke by letter dated the 27th
Page 43 of 108
September, 199425 and later executed by the Third-named Defendant and
Mr. Paul Hilton-Clarke during the month of September, 1994.
[109] By Clause 2.2 of the said Agreement, a total of thirty-four thousand, five
hundred (34,500) shares out of a total of fifty thousand (50,00) were
allocated to the shareholders. The remaining fifteen thousand, five
hundred (15,500) unallocated shares were held by the Third-named
Defendant by virtue of Clause 2.8 while the balance of the purchase price
remained outstanding.
[110] The said Agreement provided26 that failure of any party (-ies) to obtain
outline planning permissions within twelve (12) months of the date of the
said agreement will result in the following consequence - that any of them
could declare the said Agreement null and void whereupon the deposit
would be refunded by the Third-named Defendant.
[111] This witness denied that he had any knowledge of Dave Kemp’s unilateral
variation of the said Agreement to alter Clause 2.7 to state that after two (2)
years, if planning permissions were not obtained, the Estate would be sold
to provide the balance of the purchase to the Third-named Defendant.
[112] Further, it was denied by Mr. Paul Hilton-Clarke that the letter of 28th
November, 1994 by Dave Kemp purporting to agree to the alleged
variation on behalf of the Claimant Company was not valid as the
Claimant Company was not yet in existence; nor was any such terms ever
agreed to by any of the parties.
25
“PHC 2” attached to the Witness Statement of Paul Hilton-Clarke dated the 16th
November, 2007 26
Clause 2.7
Page 44 of 108
[113] The Claimant Company was formed in January, 1995 with Mr. Paul
Hilton-Clarke and his brother as the first two (2) subscribers and its only
two (2) Directors. The L’Anse Fourmi Estate was duly conveyed to the
Claimant Company by Deed No. 13372 of 1995 and registered on the 3rd
August, 1995.
[114] Over a year passed after the date of the said Agreement and monies were
still owed on the purchase price of the Estate. The Third-named Defendant
sought the assistance of Mr. Paul Hilton-Clarke to acquire the outstanding
balance. Pursuant to this, the Third-named Defendant assigned all his
interest in the Claimant Company to the Mr. Paul Hilton-Clark and his
brother by letter dated the 1st December, 199527.
[115] Subsequently, Mr. Paul Hilton-Clarke wrote to Dave Kemp, by letter dated
the 2nd February, 199628, requesting payment of the outstanding balance on
the purchase price of the L’Anse Fourmi Estate. Dave Kemp replied by a
faxed letter of 8th February, 1996 acknowledging the outstanding sum and
proposed to pay same by selling two (2) plots of land on the Estate.
[116] A subsequent letter29, dated 30th March, 1996, was sent to Dave Kemp
enquiring about the status of the payment of the outstanding balance on
the purchase price. Dave Kemp replied by fax of 9th April, 1996 indicating
that the original planning permissions had lapsed and needed to be re-
applied for.
27
“PHC 4” attached to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007 28
No.A(ii)48 in the Agreed Bundle of Documents filed by the Claimant on the 18th
July, 2007 29
“PHC 5” attached to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007
Page 45 of 108
[117] The Third-named Defendant composed a letter dated the 23rd April, 1996
to Rolf Berthold, Ron Geddes, Dave Kemp and the secretary of the
Claimant formally requesting payment of the outstanding balance of the
purchase price by a loan on the clear title that he had delivered for the
L’Anse Fourmi Estate. Further, the Third-named Defendant requested that
he be notified if the Claimant Company was unable to complete the
Partnership Agreement within a reasonable time.30
[118] This witness denied being offered any loan proceeds by Dave Kemp to pay
the balance owed to the Third-named Defendant. Consequently, he
notified the Third-named Defendant that his attempts to retrieve the
outstanding balance from Dave Kemp failed. He further advised the Third-
named Defendant that the Claimant Company would not be able to
complete the agreement within a reasonable time and as such the latter
was entitled to declare the Partnership Agreement null and void pursuant
to Clause 2.7.
[119] Based on this, the Third-named Defendant sent a Notice of Recission of the
contract dated 16th May, 199631 to Mr. Paul Hilton-Clarke, John Hilton-
Clarke, Dave Kemp, Rolf Berthold and Ron Geddes. Dave Kemp
acknowledged the Third-named Defendant’s Notice by letter dated the 1st
June, 1996 denying that the Partnership Agreement was the basis for the
sale of the L’Anse Forumi Estate to the Claimant Company, and alleging
that the Third-named Defendant made no attempt to maintain or apply for
any variations of the planning permission.32
30
No.A(ii) 59 and 60 in the Agreed Bundle of Documents filed by the Claimant on the 18th
July, 2007 31
“PHC 7” attached to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007 32
No. A(ii)63 in the Agreed Bundle of Documents filed by the Claimant on the 18th
July, 2007
Page 46 of 108
[120] Mr. Paul Hilton-Clarke also testified that as a result of the Rescission
Notice by the Third-named Defendant, he had duly exercised his right to
cancel the sale of the L’Anse Fourmi Estate to the Claimant Company.
Accordingly, his Attorney-at-law engrossed a Deed of Conveyance of the
Estate back to him for the same consideration of five hundred and fifty
thousand dollars ($550,000.00) by promissory note dated the 4th July, 1996
to be paid within thirty six (36) months of the 4th July, 1996. This Deed was
executed on the 28th June, 1996 by Mr. Paul Hilton-Clarke and his brother
in their capacity as the only two (2) directors in control of the Claimant
Company. The Deed was registered on the 25th July, 1996.
[121] Thereafter, the Third-named Defendant’s Attorney-at-Law sent a letter of
19th December, 1996 to Dave Kemp informing him that the Estate was
lawfully returned to the Third-named Defendant and that he would be
refunded the deposit to the Claimant Company.33 A letter34 of the same
date was sent to Marcia Washington, who was purporting to act as the
Company Secretary, informing her that Paul and John Hilton-Clarke were
the only lawful directors and shareholders of the Claimant Company and
that further, no one, including herself, was authorised to act on behalf of
the Claimant Company and there was no allotment of any of the shares in
the Company.
[122] Mr. Paul Hilton-Clarke was informed of a potential sale of the L’Anse
Fourmi Estate by the Third-named Defendant in May, 1997 to the Second-
named Defendant. Consequently, he faxed a letter dated the 23rd May, 1997
33
No. A(ii)82 in the Agreed Bundle of Documents filed by the Claimant on the 18th
July, 2007 34
No. A(ii)83 in the Agreed Bundle of Documents filed by the Claimant on the 18th
July, 2007
Page 47 of 108
to the Second-named Defendant informing the latter that the Third-named
Defendant was ready to proceed with the sale of the L’Anse Fourmi Estate
as soon as possible.
[123] On the 20th June, 1997, an agreement for sale was executed between the
Second and Third-named Defendants for the purchase of the Estate for the
sum of one million three hundred thousand dollars United States currency
(US$1,300,000.00). Pursuant to this agreement, the Second-named
Defendant paid the Third-named Defendant a ten percent (10%) deposit by
certified cheque. This cheque was to be kept in an interest bearing escrow
account in the United States of America until the completion of the sale
carded for September, 1997. It was agreed that upon completion, the Third-
named Defendant would execute a Deed of Conveyance to the Second-
named Defendant, who would then execute a Deed of Mortgage payable
by the 31st January, 1998 to secure the balance of the purchase price. The
deposit would then be legally released from escrow to the Third-named
Defendant.
[124] On or about the 18th September, 1997, the Third-named Defendant
executed the Deed of Conveyance of the L’Anse Fourmi Estate to a Resort
Company – the First-named Defendant - owned by the Second-named
Defendant and Lord Thurlow. The First-named Defendant’s Deed of
Conveyance was to be held in escrow along with the Deed of Mortgage
until the mortgage was paid off as the Second-named Defendant did not
want to unnecessarily pay the mortgage registration fees of about thirty
thousand dollars ($30,000.00) for the few months duration of the mortgage.
Page 48 of 108
[125] It was discovered on or about the 12th December, 1997 that a lis pendens and
Writ of Summons had been filed on the 3rd February, 1997 by Dave Kemp
and Rolf Berthold against Mr. Paul Hilton-Clarke, the Third-named
Defendant, John Hilton-Clarke and the Claimant Company. Mr. Paul
Hilton-Clarke had no prior knowledge of this High Court Action.
[126] Consequently, the Second-named Defendant adopted the position that
until the lis pendens was vacated the First-named Defendant’s Deed of
Conveyance and the Third-named Defendant’s Deed of Mortgage would
be held in escrow. Attorney-at-law Bryan Lee Keshall was instructed to
make an out-of-court settlement offer, which he did by letter of 9th
February, 199835 to Dave Kemp and Rolf Bethold’s Attorney-at-Law
Gaston Benjamin. The offer consisted of a payment of five hundred
thousand dollars ($500,000.00) and another payment of five hundred
thousand dollars ($500,000.00) for any expenses they might have incurred.
This offer was rejected by Dave Kemp and Rolf Berthold by letter of 3rd
March, 199836. As a result, a Defence was filed in High Court Action No. T-
29 of 1997.
[127] Mr. Paul Hilton-Clarke further testified that on the 26th September, 199937,
Rolf Bethold made a settlement counter-offer proposing a shareholding
position in the Claimant Company for himself and Dave Kemp; the Mr.
Paul Hilton-Clarke and John Hilton-Clarke with ten percent (10%) each
and a payment of five hundred thousand pounds sterling (GB£500,000) to
the Third-named Defendant if he re-conveyed the L’Anse Fourmi Estate to
35
“PCH 11” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007 36
“PCH 12” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007 37
“PHC 14” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007
Page 49 of 108
the Claimant Company. This counter-offer was rejected by email of 13th
October, 199938 as the Third-named Defendant stated that he no longer
owned the L’Anse Fourmi Estate.
[128] A second settlement counter-offer was made to Mr. Paul Hilton-Clarke by
Rolf Berthold sometime between October, 1999 and April, 2000 which
proposed the withdrawal of High Court Action T-29 of 1997 in
consideration of a payment of two hundred and fifty thousand pounds
sterling (GB£250,000) and five (5) acres of the L’Anse Fourmi Estate. Again,
this offer was rejected as the Third-named Defendant was no longer the
owner of the Estate.
[129] Negotiations between the parties continued and on the 14th May, 2000, Rolf
Berthold indicated39 to Mr. Paul Hilton-Clarke that a settlement payment
of six hundred thousand dollars United States currency (US$600,000.00)
would compensate him and Dave Kemp for their interest in the matter and
would remove them permanently from the situation. Mr. Paul Hilton-
Clarke countered with a lower offer of five hundred and fifty thousand
dollars United States currency (US$550,000.00) which was accepted via
email on the 22nd May, 2000 by Rolf Berthold in full settlement of their
High Court Action.
[130] A proposal in these terms was sent on the 9th June, 2000 by Attorney-at-
Law Mr. Yung to Attorney Lee Keshall which proposed that Dave Kemp,
Rolf Berthold, John Hilton-Clarke, this witness and others relinquish all
their interest in the Claimant Company and transfer the shares to the
38
“PHC 15” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007 39
“PHC 17” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007
Page 50 of 108
Second-named Defendant and Lord Thurlow or their nominees. The
acceptance of these terms was communicated by the witness’ email of 21st
June, 2000 to Lee Kelshall.40
[131] Mr. Paul Hilton-Clarke was notified by email of 20th July, 200041 that Dave
Kemp and Rolf Berthold did not believe that the settlement funds were
available as such were unprepared to sign the settlement documents or
extend the time for completion. Nevertheless, an extension was granted by
Dave Kemp and Rolf Berthold’s Attorney-at-Law on the 20th July, 2000.
[132] Another attempt was made by Rolf Berthold, by email of 27th July, 2000, to
offer nine hundred thousand dollars United States currency
(US$900,000.00) to the Third-named Defendant, Mr. Paul Hilton-Clarke
and John Hilton-Clarke to secure control of the Claimant Company. Again,
this offer was rejected by email of 30th July, 2000 and it was reiterated that
they were all committed to the five hundred and fifty thousand dollars
United States currency (US$550,000.00) settlement only.
[133] On the 30th August, 200042, this witness was notified that Attorney-at-Law
for Dave Kemp and Rolf Berthold had requested a further extension to 15th
October, 2000 for completion of the settlement. However, Dave Kemp and
Rolf Berthold would not give the warranties as required by the settlement
document. In response to this, this witness notified Dave Kemp and Rolf
Berthold by email43 that the only alternative to the agreed settlement was
to return to the Tobago Court System. Dave Kemp replied on the same day
40
“PHC 19” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007 41
“PHC 21” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007 42
“PHC 23” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007 43
“PHC 24” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007
Page 51 of 108
and indicated that he was willing to bring this matter to an end if the cash
for their settlement was forthcoming.
[134] Mr. Paul Hilton-Clarke was notified on the 6th April, 2001 that a Deed of
Compromise44, Release and Discharge (“Deed of Compromise”) had been
drafted and needed the approval of all the parties concerned. This was
agreed to by Mr. Paul Hilton-Clarke and the Third-named Defendant.
Dave Kemp and Rolf Berthold did not agree immediately to the Deed of
Compromise but rather sought to obtain confirmation of the existence of
the settlement funds.45
[135] To this end, the Second-named Defendant’s financier, Robert Noonan,
contacted Dave Kemp to prove the existence of the settlement sum of five
hundred and fifty thousand dollars United States currency
(US$550,000.00). However, Dave Kemp and Rolf Berthold were not
satisfied and wished to meet Robert Noonan in person to further establish
that he could provide the funds for the settlement sum. Subsequently, Mr.
Paul Hilton-Clarke was notified46 by the Second-named Defendant that
Dave Kemp and Rolf Berthold were finally satisfied as to the existence of
the settlement sum and had executed the Deed of Compromise.
[136] On the 5th June, 2001, Dave Kemp informed Mr. Paul Hilton-Clarke by
email47 that he understood the terms of the settlement to be as follows:
44
“PHC 26” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007 45
“PHC 27” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007 46
“PHC 31” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007 47
“PHC 33” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007
Page 52 of 108
i. That the L’Anse Fourmi Estate be transferred back to
the Claimant Company;
ii. That the Claimant Company be continued;
iii. That the resignation of all the directors of the Claimant
Company; and,
iv. The transfer of all the shares,
whereupon, five hundred and fifty thousand dollars United States
currency (US$550,000.00) would be transferred to Dave Kemp’s account
and the balance of five hundred and seventy thousand dollars United
States currency (US$570,000.00) will be paid to the Third-named
Defendant.
[137] Dave Kemp notified this witness via email of the 7th June, 200148 that the
resignations of the directors had been passed onto Robert Noonan’s
Attorney-at-Law in London and that their settlement monies were placed
in escrow to be released upon the completion of the Third-named
Defendant, John Hilton-Clarke and the Mr. Paul Hilton-Clarke’s
obligations.
[138] This witness confirmed to Dave Kemp on the 9th June, 2001 that the Third-
named Defendant, John Hilton-Clarke and himself would sign the Deed of
Compromise and do all other things required of them in the settlement
proceedings. However, he informed Dave Kemp that the transfer of the
L’Anse Fourmi Estate back to the Claimant Company would have to be by
48
“PHC 34” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007
Page 53 of 108
way of a new conveyance rather than the cancellation of the Third-named
Defendant’s Deed No. 13722 of 1996.
[139] By email of 10th July, 2001, Dave Kemp informed Mr. Paul Hilton-Clarke
that he had signed Robert Noonan’s exclusivity agreement on Rolf
Berthold’s behalf. During this time, Mr. Paul Hilton-Clarke was in
negotiations with Robert Noonan regarding the financing of the settlement
of the matter. However, the Second-named Defendant threatened
injunctive action against the L’Anse Fourmi Estate, the Third-named
Defendant, John Hilton-Clarke and Mr. Paul Hilton-Clarke if they
attempted to deal with the Estate or anyone in any manner that was in
breach of his agreement with the Third-named Defendant.
[140] In or about November, 2001, the Second-named Defendant proposed to
Mr. Paul Hilton-Clarke and the Third-named Defendant that they agree to
a variation of the settlement agreement in which they would accept two
hundred and fifty thousand dollars United States currency (US$250,000.00)
in consideration of:
i. The Third-named Defendant executing a new conveyance of the
L’Anse Fourmi Estate to the Claimant Company;
ii. Continuation of the Claimant Company with the same
unauthorised director appointments and share allocations as that
filed on the 8th February, 1995;
iii. The relinquishment of Mr. Paul Hilton-Clarke’s and John Hilton-
Clarke’s interest in the Claimant Company, their resignation as
Directors of the Company and the transfer of their shares along
Page 54 of 108
with those already executed by Dave Kemp, Rolf Berthold and
their associates;
iv. The Second-named Defendant’s and Lord Thurlow’s assurances
that the balance to the Third-named Defendant equivalent to his
mortgage would be paid from either the proceeds of their resort
development on the L’Anse Fourmi Estate or financed by Robert
Noonan and/or a bank once the settlement was properly
completed.
Mr. Paul Hilton-Clarke, the Third-named Defendant and John Hilton-
Clarke agreed to these terms and issued a statement in confirmation.49
[141] On the 6th December, 2001, Mr. Paul Hilton-Clarke notified all concerned
parties that the Third-named Defendant’s Attorney-at-Law, Lee Kelshall,
would be acting on behalf of the Third-named Defendant, Mr. Paul Hilton-
Clarke and John Hilton-Clarke to perform their obligations in the
settlement.50
[142] This witness received a copy of Robert Noonan’s draft agreement from the
Second-named Defendant which summarized the overall terms for the
agreed settlement of all the claims and litigation of the parties. On the
suggestion of the Third-named Defendant, he flew to London to ensure
that everything was on track towards the completion of the settlement.
49
“PHC 43” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007 50
“PHC 45” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007
Page 55 of 108
[143] On the 14th December, 2001, Mr. Paul Hilton-Clarke met with Robert
Noonan and the Second-named Defendant; at that meeting Robert Noonan
indicated that he had an agreement in place with Dave Kemp and Rolf
Berthold whereby their payment would be released from escrow upon the
completion of the Third-named Defendant’s, Mr. Paul Hilton-Clarke’s and
John Hilton-Clarke’s obligations under the settlement.
[144] By email of the 24th December, 2001, Mr. Paul Hilton-Clarke confirmed to
Dave Kemp that all the paperwork to be done by himself, the Third-named
Defendant and John Hilton-Clarke were prepared. Further, on the 2nd
January, 2002, Mr. Paul Hilton-Clarke notified Dave Kemp by email that51:
i. The Resignation letters of Mr. Paul Hilton-Clarke and John
Hilton-Clarke had been sent via FedEx to Lee Kelshall;
ii. The new Deed of Conveyance that Lee Kelshall had engrossed
and that the Third-named Defendant had executed to transfer the
L’Anse Fourmi Estate back to the Claimant Company had been
accepted by the Registrar General’s Office;
iii. Lee Kelshall was holding the new Deed and the documents for
the Continuance of the Claimant Company in escrow pending
their exchange with Robert Noonan’s lawyer for payment;
iv. Lee Kelshall was yet to obtain confirmation from Dave Kemp’s
Attorney-at-law that they were withdrawing their legal claims
and lis pendens; and,
51
“PHC 50” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007
Page 56 of 108
v. The documents or the removal of the lis pendens, legal claims and
the termination of their purchase contracts were inspected by Lee
Kelshall and awaited their signatures.
[145] By the 8th January, 2002, all the documents completed by Mr. Paul Hilton-
Clarke and the Third-named Defendant were held in escrow. Thereafter,
Mr. Paul Hilton-Clarke contacted the Second-named Defendant, via
email52, to verify the ability of each party to complete the settlement
payments and bring an end to the legal claims against himself, his brother
and the Third-named Defendant.
[146] The Second-named Defendant sent Mr. Paul Hilton-Clarke a copy of a fax53
dated the 14th January, 2002, from Robert Noonan regarding the settlement
arrangements which stated:
i. Robert Noonan had cleared two hundred and sixty thousand
dollars United States currency (US$260,000.00) for Mr. Paul
Hilton-Clarke, the Third-named Defendant and John Hilton-
Clarke to be released simultaneously with Robert Noonan’s
deposit of five hundred and sixty thousand dollars United States
currency ($560,000.00) for Dave Kemp and Rolf Berthold’s
interest in the Claimant Company;
ii. Simultaneously, the Second-named Defendant and Lord Thurlow
are to withdraw their lis pendens on the L’Anse Fourmi Estate for
ten percent (10%) of the Claimant Company’s shares;
52
“PHC 51” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007 53
“PHC 52” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007
Page 57 of 108
iii. Messrs. Gaston and Ian Benjamin to be the agents for Attorney-
at-Law Gilbert Kodilinye in collating the documentation and to
disburse the funds to Mr. Paul Hilton-Clarke, the Third-named
Defendant and John Hilton-Clarke;
iv. Messrs. Gaston and Ian Benjamin to hold one hundred percent
(100%) of the shares of the Claimant Company to Gilbert
Kodilinye’s order, less the Second-named Defendant and Lord
Thurlow’s ten percent (10%) following the withdrawal of their lis
pendens.
[147] Another fax was sent to Mr. Paul Hilton-Clarke dated the 17th January,
2002 wherein David Yung wrote a letter to Gilbert Kodilinye pointing out
certain monetary inaccuracies in Robert Noonan’s letter of 14th January,
2002. Mr. Yung reserved the position of the Second-named Defendant and
Lord Thurlow until the following parts of the settlement were completed
simultaneously:
i. Conveyance of the L’Anse Fourmi Estate from the Third-named
Defendant to the Claimant Company;
ii. Continuance of the Claimant Company with the original
shareholders;
iii. Payment of two hundred and fifty thousand dollars United States
currency (US$250,000.00) to Mr. Paul Hilton-Clarke, the Third-
named Defendant and John Hilton-Clarke;
iv. Transfer of the shares of Dave Kemp, Rolf Berthold, Ronald
Geddes, Marcia Washington and Fenchurch Holdings Limited;
Page 58 of 108
v. Payment of five hundred and fifty thousand dollars United States
currency (US$550,000.00) settlement to Dave Kemp and Rolf
Berthold;
vi. Rescission of the Second-named Defendant’s Sale Agreement;
and.
vii. Withdrawal of the Second-named Defendant’s legal action and lis
pendens.
[148] It was the testimony of this witness that he, the Third-named Defendant
and John Hilton-Clarke were uncomfortable with Robert Noonan’s
proposed plan for Messrs. Benjamin to be the agent receiving their
payment and checking their documents. Mr. Paul Hilton-Clarke counter-
proposed that Robert Noonan establish that their settlement payment was
in transit by way of an official bank wire transfer receipt.54
[149] On the 14th February, Mr. Paul Hilton-Clarke was notified by Bryan Lee
Kelshall that Gaston Benjamin was in receipt of one hundred and twenty-
five thousand dollars United States currency (US$125,000.00) of the funds
for the settlement transaction. By email55 of 15th February, 2002, Dave
Kemp emailed Mr. Paul Hilton-Clarke alerting him that Gaston Benjamin
was in receipt of the remaining settlement funds.
[150] By email56 of 16th February, 2002, Mr. Paul Hilton-Clarke indicated to
Robert Noonan that he, along with the Third-named Defendant and John
Hilton-Clarke, were willing to do all that was required of them in the
54
“PHC 54” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007 55
“PHC 57” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007 56
“PHC 59” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007
Page 59 of 108
settlement agreement. However, Mr. Paul Hilton-Clarke would not
instruct Lee Kelshall to register the new deed or file the share transfers and
resignation documents without Robert Noonan authorising payment to be
made in advance to Lee Kelshall. This position was communicated to Dave
Kemp by email57 of 17th February, 2002.
[151] Mr. Paul Hilton-Clarke contended that in good faith and the expectation
that the other parties would complete their respective parts of the
settlement, he and the Third-named Defendant instructed Lee Kelshall to
proceed with the completion of their parts. Consequently, Lee Kelshall
filed the Articles of Continuance of the Claimant Company and procured
the Registration of the new Deed of Conveyance of the L’Anse Fourmi
Estate to the Claimant Company on the 28th February, 2002.
[152] On the 13th March, 2002, a copy of a fax58 by Robert Noonan was
forwarded to Mr. Paul Hilton-Clarke by the Second-named Defendant,
wherein Robert Noonan stated that all matters concerning the L’Anse
Fourmi Estate had been formalised. Consequently, the Second-named
Defendant stated that he would instruct his Attorney-at-Law to withdraw
High Court Action No. T-99 of 2000; remove his lis pendens; and rescind all
his contracts in relation to the purchase of the L’Anse Fourmi Estate upon
receipt of the documents from Robert Noonan verifying completion of the
other parts of the settlement plan.
[153] However, on or about the 23rd April, 2002, Mr. Paul Hilton-Clarke was
informed by the Second-named Defendant that Dave Kemp seemed
57
“PHC 61” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007 58
“PHC 63” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007
Page 60 of 108
reluctant to participate in the settlement. Dave Kemp cited several reasons
for his withdrawal from the settlement via email59 to Robert Noonan as
follows:
i. Non-performance within the prescribed time scale;
ii. The Second-named Defendant’s refusal to lift his lis pendens
which allegedly prevented Robert Noonan from completing his
arrangement with Dave Kemp;
iii. Speculation by Dave Kemp that based on Robert Noonan’s
instruction the Second-named Defendant was refusing to lift his
lis pendens;
iv. An offer was made to Dave Kemp for sale of the Claimant
Company that was ten (10) times the settlement amount as such
he was returning all of Robert Noonan’s money with interest
from escrow.
Despite this setback, the Second-named Defendant assured Mr. Paul
Hilton-Clarke that he would continue to seek the enforcement of the
settlement agreement.
[154] Mr. Paul Hilton-Clarke denied having any knowledge of a time scale as a
precondition to the completion of the settlement agreement; nor was he at
any time informed of one by any of the parties to the agreement.
[155] He stated that he was apprised by the Second-named Defendant of an
email60 between the latter and Dave Kemp. In the email, Dave Kemp
59
“PHC 64” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007
Page 61 of 108
dismissed the Second-named Defendant’s request to complete the
settlement by stating that he (Dave Kemp) had never entered into any
agreement with the latter. This witness noted that this position was in
stark contrast to the Claimant Company’s Statement of Claim61 in this
action, where it was alleged that the negotiations and agreements were
entered into with all the Defendants to effect a compromise settlement.
[156] Thereafter, three (3) months elapsed since Mr. Paul Hilton-Clarke, the
Third-named Defendant and John Hilton-Clarke had completed their
requirements under the settlement agreement. Consequently, the Third-
named Defendant emailed62 Lord Thurlow on the 18th June, 2002, seeking
his contribution to the payment of five hundred and fifty thousand dollars
United States currency (US$550,000.00) to Dave Kemp and Rolf Berthold.
The Second-named Defendant responded via email63 of 28th June, 2002
stating that Robert Noonan was still attempting to get Dave Kemp and
Rolf Berthold to complete their obligations under the settlement
agreement.
[157] On or about the 5th August, 2002, Mr. Paul Hilton-Clarke received a copy
of a letter64 from the Second-named Defendant. It was a letter from Robert
Noonan to the Second-named Defendant wherein the former stated that he
was still encountering problems with Dave Kemp and Rolf Berthold who
wished to return their settlement payment in exchange for control of the
Claimant Company. Robert Noonan further stated that he was currently
60
“PHC 65” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007 61
Paras. 9-10 62
“PHC 66” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007 63
“PHC 67” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007 64
“PHC 69” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007
Page 62 of 108
seeking a legal decision but his Attorneys advised a compromise
settlement.
[158] The Second-named Defendant responded65 to this letter on or about the 9th
August, 2002 and a copy was given to Mr. Paul Hilton-Clarke. By his
response, the Second-named Defendant indicated:
i. The Second-named Defendant and Lord Thurlow would not
agree to the alteration of the settlement to return control of the
Claimant Company to Dave Kemp and Rolf Berthold but that
they may consider a compromise settlement to resolve the
dispute;
ii. Robert Noonan was not able to complete his obligations under
the settlement agreement due to no fault of his own. However,
the Second-named Defendant and Lord Thurlow would enforce
High Court Action No. T-99 of 2000 against the Third-named
Defendant for breach of his prior sales contracts with the Second-
named Defendant;
iii. Any compromise settlement that Robert Noonan negotiated with
Dave Kemp and Rolf Berthold would have to be agreeable to
both the Second-named Defendant and Lord Thurlow to ensure
their continuation with the settlement instead of their pursuit of
legal action against the Third-named Defendant.
[159] Mr. Paul Hilton-Clarke denied any knowledge of a “compromise
agreement” as set out in Paragraph 10 of the Claimant’s Statement of Case.
He contended that there was no compromise terms for the settlement 65
“PHC 70” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007
Page 63 of 108
agreement, either before or after the Third-named Defendant, John Hilton-
Clarke and himself completed their obligations under the settlement
agreement. Further, there was no negotiation between the parties to
transpose the terms of the settlement agreement into any “compromise
agreement”.
[160] Further, on the issue of the alleged compromise agreement, Mr. Paul
Hilton-Clarke contended that:
i. Dave Kemp is incorrect to allege that neither he or Rolf Berthold
were ever part of the settlement agreement as this agreement
among all the parties was evidenced in Robert Noonan’s faxes of
13th December, 2001 and 14th January, 2002;
ii. Dave Kemp is incorrect to allege that his and Rolf Berthold’s
dispute and subsequent settlement does not concern them as the
actions of Mr. Paul Hilton-Clarke, the Third-named Defendant
and John Hilton-Clarke was all pursuant to the settlement
agreement;
iii. He is unaware of the existence of any agreement whereby Dave
Kemp and Rolf Berthold were to retain any interest(s) in the
Claimant Company. The existence of such an agreement was
only made known to him when he read the Claimant’s Statement
of Case filed in this matter.
[161] Mr. Paul Hilton-Clarke contended that Rolf Berthold’s email of 19th
August, 200266 to Ian Benjamin contained statements which suggested that
66
No. 205 in Part 1 Schedule 1 in the Claimant’s List of Documents filed on the 4th
April, 2004
Page 64 of 108
discussions were held between Robert Noonan, Dave Kemp and Rolf
Berthold and that such discussions should not be disclosed to Mr. Paul
Hilton-Clarke, the Third-named Mr. Paul Hilton-Clarke or John Hilton-
Clarke. This, Mr. Paul Hilton-Clarke contended, is evidence of the illicit
and conspiratorial nature of the agreement between Robert Noonan, Dave
Kemp and Rolf Berthold.
[162] On or about the 9th October, 2002 Mr. Paul Hilton-Clarke was informed by
the Second-named Defendant that Dave Kemp had applied for a licence
from the Ministry of Finance for the Claimant Company to own the L’Anse
Fourmi Estate and develop same into an Eco and Dive Resort. As a result,
the Second-named Defendant wrote to the Commercial Attaché of
Trinidad’s High Commission in London regarding the matter.
Subsequently, in mid October, 2002 the Commercial Attaché ordered a
freeze on Dave Kemp’s licence application to the Ministry of Finance
whilst the matter was being investigated.
[163] On or around the 24th October, 2004, the Second-named Defendant filed his
Statement of Claim in High Court Action No. T-99 of 2000. A Defence was
filed on behalf of the Third-named Defendant on the 30th October, 2002.
The Second-named Defendant protested to Mr. Paul Hilton-Clarke about
the Third-named Defendant’s description of the settlement in his Defence.
Mr. Paul Hilton-Clarke acknowledged certain omissions but told the
Second-named Defendant that the Third-Defendant merely wished to state
the involvement of himself, Mr. Paul Hilton-Clarke and John Hilton-Clarke
as simply as possible.
Page 65 of 108
[164] Subsequently, on or about the 13th November, 2002, the Third-named
Defendant, Mr. Paul Hilton-Clarke and John Hilton-Clarke instructed
Bryan Lee Kelshall to register a lis pendens on the L’Anse Fourmi Estate in
the Third-named Defendant’s High Court Action No. T139-2002 against
the Claimant Company, Dave Kemp and Rolf Berthold. The Third-named
Defendant’s lis pendens was registered on the 15th November, 2002.67
[165] On the 1st February, 2003, this witness was notified that Mr. Eon Abner of
the Ministry of Finance required official notification of their legal action.
The following day, this witness provided – on behalf of himself, the Third-
named Defendant and John Hilton-Clarke – official notification of their
legal action to Mr. Abner. Further, on the 12th February, he provided68 the
requested notification to the Ministry of Finance of the Third-named
Defendant’s Writ of Summons against the Claimant Company, Dave Kemp
and Rolf Berthold.
[166] Thereafter, on the 22nd March, 2003, Mr. Paul Hilton-Clarke emailed69
Bryan Lee Kelshall to confirm his agreement - on behalf of himself, the
Third-named Defendant and John Hilton-Clarke – to the Second-named
Defendant’s proposal to resolve High Court Action No. T-99 of 2000 by
consent. Subsequently, on the 25th June, 2003, High Court Action No. T-99
of 2000 was formally settled in the High Court and a Consent Order
granted to verify the Deed of Conveyance which the Third-named
Defendant had conveyed the L’Anse Fourmi Estate to the First-named
Defendant in 1
67
“PHC 75” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007 68
“PHC 78 annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007 69
“PHC 83” annexed to the Witness Statement of Paul Hilton-Clarke filed on the 16th
November, 2007
Page 66 of 108
RANJIT WIJETUNGE
[167] The Second-named Defendant is a sub-aqua diving instructor by
profession and holds Directorship in several companies. He has been duly
authorised to depose to facts and matters on behalf of both the First-named
Defendant and himself. The evidence given by this Witness is quite
extensive as such for the purposes of my judgment I have summarized his
evidence into chronological blocks with expansions where necessary.
January 1994 – November 1997:
[168] In or about mid- February, 1994, the Second-named Defendant discovered
the L’Anse Fourmi Estate. He met with the Third-named Defendant on the
22nd February, 1994 and began negotiations for the purchase of the Estate
from the latter. This culminated in the Agreement for Sale dated the 20th
June, 1997.
[169] The Second-named Defendant proposed to develop the Estate for a Dive
Tobago Project which sentiments he shared with the Third-named
Defendant by showing him the project’s Proposal70 and describing his
ideas for the Estate’s development.
[170] Consequently, the Second-named Defendant incorporated the First-named
Defendant on the 18th September, 1997. The Second-named Defendant
thereafter executed the Conveyance of the L’Anse Fourmi Estate to the
First-named Defendant on the 18th September, 1997; as well as a mortgage
70
“RW 1” annexed to the Witness Statement of Ranjit Wijetunge filed on the 16th
November, 2007
Page 67 of 108
of the said property in favour of the Third-named Defendant on the 19th
September, 1997 to secure the balance of the purchase price. The Deeds of
Conveyance and Mortgage were held in escrow in September, 1997 to save
payment of thirty thousand dollars ($30,000.00) in stamp duty.
[171] However, on the 22nd November, 1997 the Second-named Defendant was
advised by his Solicitor of a dispute with respect to the ownership of the
the L’Anse Fourmi Estate: High Court Action No. T-29 of 1997. On the 12th
December, 1997, Mr. Witjetunge became fully apprised of this action.
[172] As a result of this discovery, the Second-named Defendant registered a lis
pendens on the Estate on the 17th February, 1998 to preserve his and the
First-named Defendant’s rights in the L’Anse Fourmi Estate. During this
time, the Deeds of Conveyance and Mortgage continued to be held in
escrow pending the removal of the lis pendens against the Estate so as to
complete the terms of the sale agreement of 20th June, 1997.
[173] The Second-named Defendant testified that from February, 1998 to May
2000 he attempted to persuade and assist the Third-named Defendant,
John and Paul Hilton-Clarke to settle their dispute with Rolf Berthold and
Dave Kemp.
May 2000 – December 2001:
[174] Consequently, on the 22nd May, 2000, it was agreed among the Second-
named Defendant, the Third-named Defendant, Paul Hilton-Clarke, John
Hilton-Clarke, Dave Kemp and Rolf Berthold that a settlement of five
Page 68 of 108
hundred and fifty thousand dollars United States currency (US$550,000.00)
be paid to Dave Kemp and Rolf Berthold in exchange for the withdrawal of
their High Court Action No. T-29 of 1997 and lis pendens.
[175] It was further agreed on the 26th June, 2000 that the settlement agreement
would include the provision that Dave Kemp, Rolf Berthold, the Third-
named Defendant, Paul Hilton-Clarke, John Hilton-Clarke and all other
directors and shareholders of the Claimant Company would resign and
relinquish all their interest in it.
[176] The Second-named Defendant’s Financier, Robert Noonan, negotiated with
the Third-named Defendant, Paul and John Hilton-Clarke for the payment
to them of a reduced balance of two hundred and fifty thousand dollars
United States currency (US$250,000.00) as part of the settlement
agreement.
[177] All the foregoing terms were summed up into an agreement termed “the 6
point plan” of the 13th December, 2001 by Robert Noonan. Under this plan,
the Second-named Defendant would relinquish his rights under his
agreement for sale of the 20th June, 1997 and relinquish and cancel the prior
conveyance of the L’Anse Fourmi Estate to the First-named Defendant.
[178] The Third-named Defendant in turn executed a new deed of conveyance to
the Claimant Company on the 28th December, 2001.
Page 69 of 108
January 2002 – September 2002:
[179] Upon the receipt of their payment of two hundred and fifty thousand
dollars United States currency (US$250,000.00), the Third-named
Defendant, John and Paul Hilton-Clarke completed their obligations under
the settlement and unilaterally released their executed documents from
escrow. However, Dave Kemp and Rolf Berthold refused to accept the
agreed sum of five hundred and fifty thousand dollars United States
currency (US$550,000.00) in settlement of their claim and interest in the
Estate.
[180] Subsequently, on the 12th May, 2002, the Third-named Defendant, John and
Paul Hilton Clarke having registered the Deed in favour of the Claimant,
Dave Kemp then gained control of the Claimant Company.
[181] The Second-named Defendant contended that Dave Kemp and Rolf
Berthold breached the agreement among the parties in order to facilitate
their new plan of selling the Estate, which they now had control of, for ten
times the amount they had previously agreed to.
[182] From February 2000 to October 2002, the Second-named Defendant made
numerous attempts to persuade Dave Kemp and Robert Noonan to
complete their respective parts under the settlement plan in order that he
could complete his part including relinquishing his rights in respect of the
L’Anse Fourmi Estate under the sale agreement of 20th June, 1997 and the
ownership rights of the First-named Defendant to the L’Anse Fourmi
Estate.
Page 70 of 108
[183] On the 9th August, 2002, the Second-named Defendant sought the
assistance of Robert Noonan to attempt a compromise by making
concessions to Dave Kemp and Rolf Berthold to persuade them to
complete their settlement obligations under the settlement. This witness
stated that this course was preferable to him seeking to assert his rights as
beneficial owner of the Estate pursuant to High Court Action No. T-99 of
2000.
[184] On the 30th September, 2002, the Second-named Defendant discovered that
Dave Kemp had applied for a licence to the Ministry of Finance to hold the
L’Anse Fourmi Estate pursuant to the FOREIGN INVESTMENT ACT.
This, to the Second-named Defendant’s mind confirmed Dave Kemp’s
breach of the settlement terms and Dave Kemp’s wrongful use of his
proposed project to further the unlawful license application on behalf of
himself, his associates and the Claimant Company. Subsequently, on the
3rd October, 2002, the Second-named Defendant made a complaint against
the granting of Dave Kemp’s licence application to the Ministry of Finance.
October 2002 – December 2002:
[185] On the 24th October, 2002, the Second-named Defendant sought to enforce
his rights by proceedings with High Court Action No. T-99 of 2000 against
the Third-named Defendant for specific performance of their sale
agreement. Consequently, on the suggestion of the Second-named
Defendant, the Third-named Defendant submitted to judgment on the 20th
March, 2003, so as to save both legal costs and court time.
Page 71 of 108
[186] A consent order was granted on the 25th June, 2003 wherein the First-
named Defendant was joined as a Claimant in High Court Action No. T-99
or 2000 to validate and confirm its ownership of the L’Anse Fourmi Estate
from the 18th September, 1997. The order also provided for the release of
the First-named Defendant’s Deed of conveyance of September, 1997 from
escrow for stamping and registration on the 31st July, 2003.
December 2004 – Present:
[187] The Second-named Defendant contended that despite the foregoing Dave
Kemp and Rolf Berthold have initiated further litigation by instituting this
matter alleging fraud and wrongdoing on the part of the Defendants.
However, the Second-named Defendant vehemently denied any fraud or
wrongdoing on his part pertaining to the Claimant Company or the
L’Anse Fourmi Estate.
[188] He went on to state that Dave Kemp and Rolf Berthold schemed with
Robert Noonan since September, 2001 to divide up the ownership of the
Claimant Company, the L’Anse Fourmi Estate and any profits derived
therefrom between themselves, whilst leading himself, the Third-named
Defendant, Paul and John Hilton-Clarke to believe that they were
complying with the settlement agreement to relinquish their rights and
interest in the Claimant Company.
[189] In support of this contention, the Second-named Defendant argued that
documents filed by the Claimant Company on the 4th April, 2005 reveal the
questionable activities between Dave Kemp, Rolf Berthold and Robert
Page 72 of 108
Noonan in pursuit of their plan to sell the Estate and share the proceeds
amongst themselves to the exclusion of the Defendants, such as:
i. Their unauthorised use of First-named Defendant’s project ideas;
ii. For the Claimant Company to unlawfully claim the plans and
projects for the development of the Estate as theirs;
iii. The application to the Ministry of Finance to own the Estate as
foreigner;
iv. Their plans from October 2002 to March 2003 to transfer the
shares of the Claimant Company to other companies controlled
by themselves in order to induce the Second-named Defendant to
believe that they were continuing with the agreed settlement plan
so that the Second-named Defendant would withdraw his claim
against the L’Anse Fourmi Estate;
v. Their intentions to sell the shares of their companies which had
an interest in the L’Anse Fourmi Estate so as to avoid the
payment of taxes.
DAVID YUNG
[190] This witness is an Attorney-at-Law with over twenty (20) years practice in
the area of conveyancing. He is also a Partner in the Conveyancing
Department of the law firm of Fitzwilliam, Stone, Furness-Smith and
Morgan – the Attorneys-at-Law for the First and Second-named
Defendants herein.
[191] He testified to having read a copy of the Witness Statement of the Second-
named Defendant filed on the 16th November, 2007 and noted that it makes
Page 73 of 108
reference throughout to correspondences and conversations made between
himself and the Second-named Defendant.
[192] In particular, Mr. Yung referred paragraph 143 of the Witness Statement of
the Second-named Defendant and the instructions therein to protect the
latter’s interests in the L’Anse Fourmi Estate by instituting a High Court
Action with accompanying lis pendens.
[193] He indicated that in his efforts to ensure that this was expeditiously
executed, he personally drafted the Writ of Summons without reference to
his firm’s Litigation Department. The said Claim was grounded in specific
performance of the Sale Agreement of the 20th June, 1997 between the
Second and Third-named Defendants.
[194] However, the attorney conceded that such a Claim should have been based
on the existence of the duly executed deed executed on the 18th September,
1997. This deed was received by attorney’s firm from Mr. Kelshall,
Attorney-at-Law for the Third-named Defendant, in November, 1997
which clearly evidenced the Third-named Defendant’s intention to
complete the sale of the L’Anse Fourmi Estate to the Second-named
Defendant herein.
ISSUES [195] Ultimately, the issue to be determined by the Court is which of the two
competing Deeds takes priority. However, in addressing this issue the
following sub-issues arise:
Page 74 of 108
i. The Existence of a Compromise Agreement
ii. The re-conveyance of the L’Anse Fourmi Estate from the Claiman
to the Third-named Defendant;
iii. The date of execution of Deed No. 20030287260 transferring the
L’Anse Fourmi Estate to the First-named Defendant;
iv. The conveyance of the L’Anse Fourmi Estate from the Third-
named Defendant to the Claimant by Deed No. 00415105 of 2002;
v. The effect of a deed being held in escrow; and,
vi. The specific allegations of fraud and conspiracy to defraud made
against the Defendants.
ANALYSIS
[196] To summarise, the Claimant and the First-named Defendant both have
Title Deeds to the L’Anse Fourmi Estate and both are seeking declarations
to the effect that they are the respective fee simple owner. There is no
dispute that both these Title Deeds derive their title from the Third-named
Defendant. Consequently, the Court is therefore being asked to determine
which of these competing Deeds take priority over the other.
[197] For clarity, a brief history of how these Deeds come into existence are as
follows:
i. The title to the L’Anse Fourmi Estate was vested in the Third-
named Defendant in 1995.
ii. In July, 1995, the Third-named Defendant conveyed the L’Anse
Fourmi Estate to the Claimant.
Page 75 of 108
iii. The Claimant re-conveyed the L’Anse Fourmi Estate to the Third-
named Defendant by Deed of Conveyance dated the 28th June,
1996 and registered as No. 13722 of 1996.
iv. On the 20th June, 1997, the Third-named Defendant entered into
an agreement for sale of the L’Anse Fourmi Estate with the
Second-named Defendant.71
v. The L’Anse Fourmi Estate was conveyed to the First-named
Defendant by Deed72 in 1997 and registered on the 29th July, 2003
as Deed No. 20030287260. This Deed was held in escrow pending
the resolution of legal proceedings against the Estate.
vi. In December, 2001, the Third-named Defendant conveyed the
L’Anse Fourmi Estate to the Claimant, which was registered on
the 28th February, 2002 as Deed No. 00415105 of 2002.
vii. On the 22nd April, 200273 and the 24th June, 200374, the legal
proceedings against the L’Anse Fourmi Estate ceased and the
Estate’s title was now free from any encumbrances.
THE EXISTENCE OF A COMPROMISE AGREEMENT
[198] In its Statement of Claim, the Claimant contended that with the knowledge
and participation of all the Defendants75 a Compromise Agreement was
concluded. However, this was expressly denied by all the Defendants in
71
This Agreement of Sale document was agreed but not the truth of its contents. 72
There is a contest as to whether this Deed was executed on the 17th
or 18th
September, 1997. 73
HCA No. T29/1997 was dismissed following the filing of a Notice of Discontinuance (or Notice of Full
Satisfaction as was the practice under the Rules of the Supreme Court) on the 25th
March, 2002. 74
A Declaration was entered by consent in HCA No. T99/2000. 75
Para. 10 of the Statement of Claim
Page 76 of 108
their pleadings76 and they instead posited that there was a “six-point plan”
in effect which was initiated by Robert Noonan.
[199] Generally, a compromise can be described as an agreement between
parties to a dispute to settle it out of court77; it is a species of contract and
therefore there must be an agreement which is easily identifiable and
which is complete and certain.78
[200] Further, a compromise or settlement constitutes a new and independent
agreement between the parties made for good consideration, and its effect
is to:
i. Put an end to the proceedings which have been compromised or
settled, for they are thereby spent and exhausted;
ii. Preclude the parties from taking any further steps in the action;
iii. Supersede the original cause of action altogether; and,
iv. Preclude the parties from again litigating the same cause of
action or the issues arising in the original proceedings.79
[201] It is imperative in establishing the existence of a Compromise Agreement
that the Claimant must prove that there is a complete and certain
agreement between it and the Defendants. However, an examination of the
evidence before me does not support that there was a complete and certain
agreement between the parties.
76
Para. 12 of the Defences of the First and Second-named Defendant; Para. 11 of the Defence of the Third-named
Defendant 77
Osborn’s Law Dictionary, 10th
Edition 78
Sir David Foskett, The Law and Practice of Compromise, 3rd
Edition, para. 3-01 79
Atkin’s Encyclopedia of Court Forms, 2005, Vol. 12(1), para. 24
Page 77 of 108
[202] It is not disputed that by letter dated the 9th June, 2000, to Messrs. J.B.
Kelshall & Company, Mr. Yung proposed a compromise under which the
sum of five hundred and fifty thousand dollars United States currency
(US$550,000.000) would be paid to Dave Kemp and Rolf Berthold in full
and final settlement of their claims against the Third-named Defendant, his
sons, the Claimant Company and the L’Anse Fourmi Estate; and also the
withdrawal of their lis pendens. Further, that Dave Kemp, Rolf Berthold,
John Hilton-Clarke, Paul Hilton-Clarke and the Third-named Defendant
relinquish all their interest in the Claimant Company and transfer their
shares to the First-named Defendant or its nominees.
[203] This Proposal of 9th June, 2000 was accepted by Dave Kemp80 and Rolf
Berthold81 provided that they were paid the said sum by the 22nd July,
2000. The Third-named Defendant was also in agreement with this
proposal as evidenced by Exhibit LAFT 9 to Dave Kemp’s Witness
Statement filed on the 25th July, 2007.
[204] However, Dave Kemp both in his Witness Statement and under cross-
examination stated that this proposal “fell into abeyance”82 before the
execution of the Deed of the 18th May, 2001. While Rolf Berthold testified
that:
“The offer to settle our 1997 action was reduced to writing by letter dated 9
June 2000 it was for Dave Kemp and me to resign from the [Claimant] in
return for USD$550,000.000 …made by David Yung, attorney at law on
80
Paras. 22-23 of his Witness Statement filed on the 25th
July, 2007 81
Paras. 20-21 of his Witness Statement filed on the 19th
November, 2007 82
Para. 23 of the Witness Statement of Dave Kemp filed on the 25th
July, 2007
Page 78 of 108
behalf of the First Defendant, Anse Forumi Beach and Rainforest Resort
Limited (and copied to Ranjit Wijetunge) and was made to Lee Kelshall on
behalf of Dr. Hilton Clarke. Mr. Kelshall communicated that offer to our
filing attorney by letter dated 21 June 2000; … The money was not
forthcoming and so that proposal got nowhere.”83
[205] Further, the evidence of Dave Kemp and Rolf Berthold on the alleged
compromise agreement differ from each other with the latter instead
making reference to the “six-point plan”:
“21. Robert Noonan became involved in the disputes … his involvement led
to the successful negotiations to settle all disputes including high court
action T 29 of 1997 and the Second [Claimant’s] action T 99 of 2000 with
and on behalf of all the Defendants and the Hilton Clarke sons. I was a
party to that round of the successful negotiations …
22. That settlement was based on a six-point plan put forward by the First
and/or Second Defendant …”84
[206] Further, their description of the alleged compromise agreement is at odds
with each other, and that pleaded in the Statement of Claim. In Paragraph
9 of the Statement of Claim, the Compromise Agreement is ascribed the
following terms:
i. As proposed by the Second-named Defendant, the sons of the Third-
named Defendant are to resign as directors and surrender and/or
83
Para. 20 of the Witness Statement of Rolf Berthold filed on the 19th
November, 2007 84
Witness Statement of Rolf Berthold filed on the 19th
November, 2007
Page 79 of 108
transfer their twenty percent (20%) shareholding in the Claimant
Company, as follows:
c. Ten percent (10%) shareholding in the Claimant
Company to be held by the Second-named
Defendant and/or his nominee: Lord Thurlow, a
British National; and,
d. Ten percent (10%) shareholding in the Claimant
Company to be held by one Robert Noonan, a
British National.
ii. In exchange for the ten percent (10%) shareholding in the Claimant
Company, the Second-named Defendant to withdraw his High Court
action and its associated lis pendens;
iii. In exchange for ten percent (10%) shareholding, Robert Noonan to pay
to the sons of the Third-named Defendant the sum of two hundred and
fifty thousand dollars United States currency(US$250,000.00);
iv. The Third-named Defendant to re-convey the L’Anse Fourmi Estate to
the Claimant Company and thereupon, Kemp and Berthold to
discontinue their High Court action;
v. Robert Noonan to negotiate, in good faith, with Kemp, Berthold and
their associates to acquire control of and/or substantial shareholding in
the Claimant Company with a view to developing the L’Anse Fourmi
Estate into a Dive Resort and Eco-Lodge.85
Rolf Berthold described the compromise agreement thus:
“(i) The Third Defendant agreed to re-convey the L’Anse Fourmi Estate to
the [Claimant] which he did by deed dated 28 December, 2001; 85
Para. 10 of the Statement of Claim filed on the 5th
December, 2003
Page 80 of 108
(ii) That the [sic] to resign as directors and sell 10% shareholding in the
[Claimant] to Robert Noonan;
(iii) Hilton Clarke and sons to accept the sum of $USD 250,000 to settle
action T 29 of 1997; and
(iv) The Second Defendant to withdraw high court action T 99 of 2000
herein in exchange for 10% shareholding in the [Claimant] to be held by the
Second Defendant and/or Lord Thurlow.”86
The Compromise Agreement is described by Dave Kemp as follows:
“… the written implementation of the compromise agreement was well
advanced in that the deed had already been executed by Hilton Clarke and
the $250,000 USD that Robert Noonan and I had arranged was on its way
to my attorney … [the] money was released to Lee Kelshall so that …
a. The deed could be stamped and registered as was done in
accordance with the provisions of the Registration of Deeds Act, Ch.
28:02 on 28 February, 2002 …
b. The Hilton Clarke sons caused the [Claimant] to be continued
under the Companies Act 1995 and resigned in writing … as
directors from the [Claimant] and executed share transfers … of
their 20% shareholding in L’Anse Fourmi Trust to be shared
between Ranjit Wijetunge and Lord Thurlow his fellow director in
Anse Fourmi Rainforest and 10% shareholding [sic] Robert Noonan
….
86
Para. 23 of the Witness Statement of Rolf Berthold filed on the 19th
November, 2007
Page 81 of 108
c. That the Hilton Clarke sons be paid the sum of $ USD 250,000
which sum was paid over to Dr. Hilton Clarke’s lawyer Lee Kelshall
on or about 1 March, 2002 …
d. That High Court Action No.T29 of 1997 to be discontinued – a
memorandum of full satisfaction was filed on – 25 March 2002...
e. Thereafter Robert Noonan and his associates continued or
negotiations with Rolf Berthold and me and our associates all in
good faith to acquire control of and/or a substantial shareholding in
L’Anse Fourmi Trust with a view to developing the L’Anse Fourmi
Estate as a Dive Resort and Eco-Lodge.”87
On the evidence before me, I conclude that there was not a complete and
certain agreement between the parties to support the Claimant’s Pleaded
Compromise Agreement. I also note that there was an absence of
consideration moving from the Claimant to the Defendants, or vice versa.
There is no dispute that the sum of two hundred and fifty thousand United
State dollars (US$250,000.00) was paid to the Third-named Defendant to
facilitate the re-conveyance of the L’Anse Fourmi Estate to the Claimant
Company. However, these funds were supplied by Robert Noonan and
not the Claimant Company.
DEED NO. 13722 OF 1996: THE RE-CONVEYANCE OF THE L’ANSE
FOURMI ESTATE FROM THE CLAIMANT TO THE THIRD-NAMED
DEFENDANT
87
Para. 27 of the Witness Statement of Dave Kemp filed on the 25th
July, 2007
Page 82 of 108
[207] Dave Kemp and Rolf Berthold, by High Court Action No. T-99 of 1997,
sought to challenge the validity of Deed No. 13722 of 1996 on the grounds
of fraud and conspiracy. However, this action was dismissed by Smith J.
(as he then was) on the 22nd April, 2002 following the filing of a Notice of
Discontinuance in the matter on the 25th March, 2002.
[208] There has been no other attempt to challenge the validity of this Deed and
the Notice of Discontinuance and the subsequent dismissal of this matter
acted as a final judgment binding upon the parties: as per Archie J. (as he
then was) in Maraval Heights Development Co. Ltd. v Thorne88 and per
McMillan J.A. in Lopez et all v Bank of Nova Scotia Trust89.
[209] Therefore, this Deed serves as the root through which the Claimant claims
Title to the L’Anse Fourmi Estate. The Claimant is therefore estopped from
denying its validity.
THE DATE OF EXECUTION OF THE FIRST-NAMED DEFENDANT’S
DEED NO. 20030287260 TRANSFERRING THE L’ANSE FOURMI
ESTATE TO THE FIRST-NAMED DEFENDANT
[210] The Claimant submitted that it was a deliberate act of the Defendants to
choose and use a date for this Deed that preceded the Claimant’s Deed No.
DE2002416016. Therefore, the Claimant contended that the convenient date
88
HCA No. 1490 of 1998, para. 6 89
Civ. App. No. 59/1987, p. 15
Page 83 of 108
of 17th September, 1997 – the contractual completion of the agreement of
sale between the Defendants of the L’Anse Fourmi Estate – was chosen but
proved to be ineffectual as the First-named Defendant was not
incorporated until the 18th September, 1997; as such no legal title could
have passed.
[211] I would like to note at this point that regardless of whether or not the First-
named Defendant was registered before the execution of the Deed, the
equitable title in the Estate would still lie with the Second-named
Defendant whose Agreement for Sale dated the 20th June, 1997 with the
Third-named Defendant was not denied or challenged by the Claimant.
[212] It is the contention of the Claimant that this Deed dated 10th November,
1997 is not genuine, fraudulent and fabricated to deceive as the First-
named Defendant did not exist at the purported date of execution. The
Claimant relied on the following matters in support of its contention:
i. The positions of the Defendants on this matter are irreconcilable
and unsustainable as the Second and Third-named Defendants
deposed to execution of same on the 18th September, 1997 while
the pleaded case is that execution took place on the 10th
November, 1997;
ii. This Deed was never mentioned and did not form part of the
protracted negotiations between the parties; nor was it ever
indicated that the L’Anse Fourmi Estate would need to be
conveyed by the First-named Defendant rather than the Third-
named Defendant;
Page 84 of 108
iii. The Claimant submitted that the Deed did not exist and therefore
could not have been mentioned as a term of the negotiations was
that the Third-named Defendant would re-convey the L’Anse
Fourmi Estate to the Claimant Company and culminated with the
Third-named Defendant effecting this in December, 2001 by Deed
No. 416106;
iv. The execution of the purported Deed dated 10th November, 1997
was taken (witnessed) by Lee Kelshall as was the deed by the
Third-named Defendant in favour of the Claimant Company on
the 28th December, 2001.
The Claimant submitted that for the foregoing reasons the Deed dated the
10th November, 1997 is inadequate to displace its Deed No. DE2002416016.
[213] The Defendants’ evidence on this issue was given by the Second and
Third-named Defendants. The Second-named Defendant testified:
“71. At about 8:30 a.m. on Thursday 18th September, 1997 I met with Dr.
Hilton-Clarke at Mr. Kelshall’s office in Scarborough was arranged,
whereupon Dr. Hilton-Clarke signed the Deed of Conveyance of the Estate
to Anse Fourmi Beach and Rainforest Report Limited witnessed by myself,
Mr. Kelshall and one of his two secretaries. The Deed of Conveyance was
not date the day or month, only the year 1997 – which was clearly printed
in words upon the Deed. Mr. Kelshall said the day and month could be
filled in later. I did not have any reason to question this at the time.
Page 85 of 108
72. I wanted to have a copy of the signed 1997 Deed of Conveyance but Mr.
Kelshall had no facility to make copies of it in his office so he suggested that
Dr. Hilton-Clarke and I could make a few photocopies … nearby … a clerk
… made 5 photocopies of the 3-page Deed for us … I paid for the copies and
asked for a receipt as usual for my expenses [R.W.40].”90
While the Third-named Defendant pleaded:
“On or around the 17th September, 1997 Wijetunge and Lord Thurlow
incorporated the Resort Company. Wijetunge notified me that he and Lord
Thurlow were its sole directors and shareholders. Wijetunge requested that
I proceed to convey the estate to this Resort company instead of him. I
agreed to do so as long as the agreed Deed of Mortgage was also executed by
Wijetunge on behalf of the Resort company to secure the balance of the
purchase price due to me.”91
[214] In response to the allegations made by the Claimant regarding the date of
execution of the Deed, Counsel for the First and Second-named Defendants
submitted that the evidence proffered by the Defendant is not refuted and
is consistent with the contemporaneous documentation in support of the
date of execution of the Deed as the 18th September, 1997.
[215] Firstly, David Yung’s letter of 17th September, 1997 discloses that he sent a
draft conveyance to Lee Kelshall’s San Fernando Officer for approval. He
wrote:
90
Witness Statement of Ranjit Wijetunge filed on the 16th
November, 2007 91
Para. 61 of the Witness Statement of Alric Hilton-Clarke filed on the 16th
November, 2007
Page 86 of 108
“Enclosed herein is out Deed of Conveyance for execution by Dr. Clarke.
We also enclose a copy of our proposed Deed of Mortgage for your approval.
If in order, and after confirmation that Dr. Clarke has executed our Deed of
Conveyance, we shall arrange to have the Deed executed.”92
Lee Kelshall responded by letter of 18th September, 1997 as follows:
“Thank you for your letter 17th September, We had the conveyance executed
and given a copy to your client. We are holding the conveyance in escrow
and wait the receipt of the mortgage.”93
[216] These documents corroborate the events as testified to by the Second-
named Defendant. It is highly unlikely that the Deed was executed on the
same day it was received, i.e. 17th September, 1997, as alleged by the
Claimant. In my view, the account given by the Defendants regarding the
execution of the Deed is more probable than that offered by the Claimant.
Further, the Second-named Defendant stated that the date of 17th
September, 1997 was a typographical error. He testified:
“… when I saw it I did not notice that the date of 17th September, 1997 was
given was the date of the Deed of Conveyance of the Estate to Anse Fourmi
Beach and Rainforest Resort Limited was incorrectly types and ‘out’ by 1
day: It should have been the 18th September, 1997 because that was the date
that the Deed was executed by Dr. Hilton-Clarke in Mr. Kelshall’s
92
Exhibit RW38 to the Witness Statement of Ranjit Wijetunge filed on the 16th
November, 2007 93
Agreed Bundle B(ii), Document No. 8
Page 87 of 108
Scarborough, Tobago office at about 8:30 am that morning in my presence,
Mr. Kelshall’s present and that of one of his two secretaries.”94
[217] However, while I accept the evidence of the Defendants it does not account
for the fact that the pleaded date of execution and the date on the Deed
itself is recorded as the “10th November, 1997”. On this point, Counsel for
the First and Second-named Defendant asked the Court to take judicial
notice of the common practice in the Country for conveyancers not to
insert the date of execution of a deed of conveyance until the point of
registration. This, it was submitted, can account for the disparity in the
date on the Deed itself.
[218] The Defendants did not proffer a reason for the discrepancy in the date but
invited the Court to infer that a plausible explanation for the error could be
the combination of the time that had elapsed between the execution of the
Deed and the existence of Lee Kelshall’s letter of 10th November, 1997 to
David Yung. In this letter, Lee Kelshall wrote:
“Please find enclosed the mortgage by and the conveyance to your clients
the Purchasers.
Please proceed to stamp and register these deeds. In the meantime please
hold them in escrow until such time as you are in a position to stamp and
register them.”95
94
Para. 417 of the Witness Statement of Ranjit Wijetunge filed on the 16th
November, 2007 95
Agreed Bundle B(ii), Document No. 11
Page 88 of 108
[219] I acknowledge that the evidence on this point for the Defendants is weak
and undoubtedly there was some inattention and carelessness regarding
the multiplicity of dates given for this Deed. However, the explanation
proffered by the Defendants can still be deemed a plausible account of
events which have spanned over a seven-year period.
[220] In my view, the issue of the disparity in the dates could have easily been
resolved by evidence given by Lee Kelshall, who drafted and witnessed
this Deed, and/or his secretary that witnessed the Deed. Nevertheless, the
parties, more specifically the Claimant elected not to call either of these
persons to give evidence on this matter before the Court; despite the fact
that the Claimant has implied serious allegations of fraud on the part of
Attorney-at-Law Lee Kelshall.
[221] The modern development of the tort of deceit, or simply fraud, has
resulted in the formulation of a general principle that where a defendant
makes a false representation, knowing it to be untrue, or being reckless as
to whether it is true, and intends that the claimant should act in reliance on
it, then in so far as the latter does so and suffers loss, the defendant is liable
for that loss.96
[222] ‘Fraud’ is defined by the learned authors of Snell’s Equity97 as follows:
“Fraud, which courts of equity remedied concurrently with courts of
common law, can be defined with some precision. It consists of a false
96
Clerk & Lindsell on Torts, 19th
Edition, 2006, p. 1081, para. 18-01 97
13th
Edition, 2000, para. 38-02
Page 89 of 108
statement of fact which is made by D to C knowingly, or without belief in
its truth, or recklessly, without caring whether it is true or false with the
intention that it should be acted upon and which is in fact acted upon by C.
D will be held liable in such a case even though the misrepresentation was
made with no corrupt motive and with no expectation of profit, and even
though the person defrauded had a full opportunity of discovering the fraud
or had a agent who knew the truth…”
The standard of proof in these claims was pronounced by the Court of
Appeal in Hornal v Neuberger Products Ltd.98 where it was held that
allegations of fraud need only be proved to the civil standard of
preponderance of probability and no more.99
[223] Lord Buckmaster in Waimiha Sawmilling Co. v Waione Timber Co.100
expounded on what constitutes fraud in the context of a case concerning
title to land. He opined:
“If the designed object of a transfer be to cheat a man of a known existing
right, that is fraudulent, and so also fraud may be established by a
deliberate and dishonest trick causing an interest not to be registered and
fraudulently keeping the register clear. It is not, however, necessary or wise
to give abstract illustrations of what may constitute fraud in hypothetical
conditions, for each case must depend upon its own circumstances. The act
must be dishonest, and dishonesty must not be assumed solely by reason of
[for example] knowledge of an unregistered interest.”
98
[1957] 1 QB 247 99
Clerk & Lindsell on Torts, 19th
Edition, 2006, p/ 1082, para. 18-03 100
[1926] AC 101, 106-107
Page 90 of 108
[224] Based on the foregoing authorities, the Claimant – to prove fraud – must
establish that when the various dates were typed into the Deed and/or
pleaded, it was done knowingly, or without belief in the truth of the
respective dates, or that it was intended that these respective dates would
be acted upon or in fact were acted upon. From my careful review of the
Claimant’s evidence, this was not established.
[225] Assuming that it was Attorney-at-Law, Lee Kelshall who furnished these
dates for the Deed, or upon whose instruction it was done, it seems to me
that his evidence is pertinent to the determination of this issue. Yet the
Claimant, who asserted these allegations of fraud, chose not to call Lee
Kelshall. No reason was given by the Claimant as to why Lee Kelshall,
and/or his secretary at the said time, was not called to give evidence. From
the Defendants’ evidence, it is apparent that Lee Kelshall is still in private
practice in Tobago and well-known in the area.
[226] In Ian Sieunarine v Doc’s Engineering Works (1992) Limited101, Rajnauth-
Lee J. discussed the effect of a party’s failure to call a key witness. She
opined:
“In the absence of the witnesses Dipnarine and Simmons, the Court is
entitled to infer that the defendant has chosen to withhold evidence which
would either have supported the plaintiff’s case or at the very least would
not have displaced the prima facie case.
101
CV2000-2387, pp. 22-23
Page 91 of 108
Accordingly, the Court finds that the prima facie case has become a strong
case in the absence of any evidence to dispute the matters established by the
evidence of the plaintiff and his witnesses.”
Gobin J. in Keith Schnake v Trincan Oil Limited102, also discussed this
issue and opined:
“At the trial, an attorney whose appointment as a director of the defendant
was only registered in December 2007, was presented as the only witness
for the defendant. The witness’ evidence was of limited assistance only as he
was not involved in the operations of the defendant, had no personal
knowledge of any matters which had bearing on the real issues in the case.
Cukavac of course would have been far better placed to assist the Court. I
find the conduct of the defendant in failing to present evidence from Mr.
Cukavac to be extremely suspicious. I cannot but conclude that the
defendant has deliberately kept Cukavac from these proceedings and I have
proceeded on the authority of British Railways Board v Herrington
1972 AC 877 … to draw the interference that had he been produced, it is
more likely than not that he would have supported the claimant’s case.”
In British Railways Board v Herrington103, Lord Diplock opined:
“The appellants … elected to call no witnesses, thus depriving the court of
any positive evidence as to whether the condition of the fence and the
adjacent terrain had been noticed by any particular servant of theirs or as to
what he or any other of their servants either thought or did about it. This is 102
CV2006-01245, para. 64 103
Op. cit.
Page 92 of 108
a legitimate tactical move under our adversarial system of litigation. But a
defendant who adopts it cannot complain if the court draws from the facts
which have been disclosed all reasonable inferences as to what are the facts
which the defendant has chosen to withhold.”
[227] In the circumstances, I prefer the evidence of the Defendants to that of the
Claimant on the issue of the date of execution of the Deed and hold that
the date of execution of Deed No. 20030287260 was on the 18th September,
1997.
DEED NO. 00415105 OF 2002: TRANSFERRING THE ESTATE FROM
THE THIRD-NAMED DEFENDANT TO THE CLAIMANT
[228] The Claimant submitted that the Third-named Defendant’s deed executed
in 1997 was not registered at the time that the Claimant’s Deed was
registered in 2002; as such the Third-named Defendant’s Deed is
fraudulent and void as against the Claimant’s. The Claimant further
argued that this Deed was not brought to the attention of Kemp, Berthold
or the Claimant Company neither was it brought to Justice Moosai’s
attention in 2003 when the Defendants obtained a consent order in terms
transferring the Estate to the First-named Defendant.
[229] It was further submitted by the Claimant that on the other hand the First
and Second-named Defendants had clear notice of its Deed pursuant to the
compromise which brought it into existence. The Claimant argued that its
Deed can only be displaced by cogent evidence and good faith on the part
of the Defendants. It contended that this is lacking in relation to any of the
Page 93 of 108
deeds relied upon by the Defendants. They further submitted that the First
and Second-named Defendants, by registering their Deed in 2003 had
sought by dishonest means to impair the Claimant’s Deed.
[230] The Claimant further argued that upon the institution of High Court
Action T-29 of 1997 by Dave Kemp and Rolf Berthold they filed a lis
pendens on 4th February, 1997 with respect to the subject Estate. This lis
pendens was re-registered thereafter. Therefore, at the time that the Second-
named Defendant entered into an agreement for sale with the Third-
named Defendant for the purchase of the Estate, they were fixed with
notice of the Claimant’s interest in the property and whatever title they
derived was subject to the Claimant’s interest.
[231] The Claimant relied upon the case of Waimiha Sawmilling Co. v Waione
Timber Co.104 in support of their contention that where the object of a
transfer is to cheat a person of a known existing right, this was fraudulent;
that is also fraud where a party by a deliberate and dishonest trick causes
an interest not to be registered.
[232] On the other hand, the Defendants argued that the prior registration of the
Claimant’s Deed could only defeat the First-named Defendant’s title under
SECTION 80(1) of the CONVEYANCING AND LAW OF PROPERTY
ACT CHAP. 58:01 if the Claimant was bona fide purchaser for value of the
Estate without notice of the First-named Defendant’s title or the Second-
named Defendant’s equitable title by reason of the agreement of sale.
104
[1926] AC 101, 106-107
Page 94 of 108
[233] The Defendants contended that the Claimant cannot rely on this defense
because it is not a purchaser for value since no money was paid by the
Claimant Company in consideration for this transfer, as the money was
paid by Robert Noonan who was not a party to these proceedings. They
also argued that the Claimant had constructive notice of the First-named
Defendant’s claim because they had a duty to contact the Second-named
Defendant or his Attorney to determine the extent of his claim upon his
filing of the lis pendens.
[234] In addition, the Defendants submitted that the Claimant had actual
knowledge of the First-named Defendant’s claim through Mr. Kelshall
who was the Claimant’s Attorney in High Court Action No. T-29 of 1997
and who also took execution of the First-named Defendant’s Deed.
[235] They also alleged that the Claimant is not bona fide since it, through its
agents Kemp, Berthold and Noonan, did not act in good faith by double
dealing in secret to come to an agreement that did not include the First and
Second-named Defendants.
[236] Lastly, the Defendants argued that the Claimant has failed to establish any
fraud that could defeat the First-named Defendant’s title to the Estate by
its Deed No. DE200302872680D001 in that all the actions relied upon by the
Claimant to establish fraud occurred after the conveyance to the First-
named Defendant in respect of which the Claimant had notice.
[237] I accept the submissions of the Defendants on this issue. I have already
held that the agreement for sale of 30th June, 1997 operated to transfer the
Page 95 of 108
beneficial interest in the Estate to the Second-named Defendant and the
Deed executed by the Third-named Defendant in favour of the First-
named Defendant on the 18th September, 2007 was valid and operated to
transfer title in the subject property to the First-named Defendant.
Additionally, I also hold that the Claimant had notice of the First and
Second-named Defendants’ interests and title in the Estate by reason of the
lis pendens filed by the First-named Defendant in High Court Action T-99
of 2000, the correspondence among the parties, the fact that Mr. Kelshall
had taken the execution of the 1997 Deed and had also acted for the
Claimant.
THE EFFECT OF A DEED BEING HELD IN ESCROW
[238] It is the Claimant’s case that Deed No. 20030287260 conveying the L’Anse
Forumi Estate to the First-named Defendant is fraudulent and a
fabrication; therefore it would follow that no such Deed was ever being
held in escrow as it did not exist. Although I have already concluded that
Deed No. 20030287260 was indeed in existence and not fraudulent, I think
it necessary, for clarity, to nevertheless discuss this issue.
[239] An intended deed may, after due completion of the formalities required for
execution as a deed, be delivered as an escrow to be bound by it until some
condition has been performed.105 When an instrument is delivered as an
escrow it cannot take effect as a deed pending the performance of the
condition subject to which it was so delivered.106
105
Halsbury’s Laws of England, 4th
Edition (reissue), 2000, Vol. 13, para. 36 106
Ibid.,para. 38
Page 96 of 108
[240] The Deed No. 20030287260 was held in escrow pending the removal of the
lis pendens filed by Dave Kemp and Rolf Berthold on the 4th February, 1997
in respect to High Court Action No. T-29 of 1997 or pending the dismissal
of this Action. As I have stated above, by Order of Smith J. (as he then was)
dated the 22nd April, 2002 and entered on the 22nd July, 2003 High Court
Action No. T-29 of 1997 was dismissed following a Notice of
Discontinuance.
[241] When an instrument has been delivered as an escrow to await the
performance of some condition, it takes effect as a deed, immediately upon
the fulfilment of the condition. Further, the rule is that its delivery as a
deed will relate back to the time of its delivery as an escrow but only for
the purposes as are necessary to give efficacy to the transaction.107
[242] Therefore, on the 22nd July, 2003 Deed No. 20030287260 took immediate
effect as the condition upon which it relied had been fulfilled, i.e. the
dismissal of High Court Action No. T-29 of 1997. Accordingly, I hold that
this Deed supersedes that made between the Claimant and the Third-
named Defendant, dated the 28th December, 2001 and registered on the 28th
February, 2002 as Deed No. 00415105.
THE ALLEGATIONS OF FRAUD AND CONSPIRACY TO DEFRAUD
MADE AGAINST THE DEFENDANTS
[243] Fraud, of whatever sort, is always a matter of inference from the facts
alleged: where any inference of fraud or dishonesty is alleged, the party
107
Ibid., para. 38
Page 97 of 108
must list the facts on the basis of which the inference is alleged.108 It is a
serious allegation and, as such, it requires a claimant to provide sufficient
notice of the facts upon and from which the court is invited to find and
infer fraud. Lord Watson in Wallingford v Mutual Society and Official
Liquidator109 opined:
“My lord, it is a well-known and very proper rule that a general allegation
of fraud is not sufficient to infer liability on the part o those who are said to
have committed it … [it] would require the parties to state a very explicit
case of fraud, or rather of facts suggesting fraud, because I cannot think
that a mere statement that fraud has been committed, is any compliance
with the words of that rule which require the Defendant to state facts
entitling him to defend … [it] requires not only a general and vague
allegation but some actual fact or circumstance or circumstances which
taken together imply, or at the very least very strongly suggest, that a fraud
must have been committed, those facts being assumed to be true.”
[244] A conspiracy consists of the agreement of two or more persons to do an
unlawful act, or to do a lawful; act by unlawful means.110 The burden of
proof is normally on the claimant; but where the claimant can prove acts
unlawful in themselves, done in the pursuance of the conspiracy, the
burden of justifying such acts passes to the defendant.111
108
Bullen & Leake & Jacob’s Precedents of Pleadings, 14th
Edition, 2001, para. 48-02 109
(1880) 5 App Cas 685, 709 110
Mulcahy v R (1868) L.R. 3 H.L 306, 317, per Wiles J. 111
Clerk & Lindsell on Torts, 19th
Edition, 2006, para. 25-136
Page 98 of 108
[245] A claimant who advances a claim of conspiracy to defraud need not plead
or prove the actual agreement or conspiracy. Rather, the court will look at
the overt acts of the conspiracy and infer from those acts that there was an
agreement to further the common object of the combination.112
[246] The specific allegations of fraud and conspiracy to defraud hereinafter
follow. Paragraph 14 of the Statement of Claim avers:
“The Second Defendant unlawfully and fraudulently objected to and
blocked the grant of a license to transfer the shares into the names of
Robert Noonan and Lord Thurlow and fraudulently demanded a
controlling interest in the [Claimant] and unlawfully and
fraudulently refused to lift his lis pendens.”
With regard to the Second-named Defendant’s “objecting to the grant of a
licence” the Claimant has put forward no evidence to support this
allegation; other than that which was stated in the Statement of Claim.
[247] It is clear from the FOREIGN INVESTMENT ACT that a licence is not
necessary for the transfer of shares to a foreign investor when the company
is a private one. Further, letter dated the 8th July, 2002 from the Ministry of
Finance to Ian Benjamin, Counsel for the Claimant, highlights the
Ministry’s satisfaction with the particulars submitted in respect of the
transfers to Robert Noonan and Lord Thurlow as the letter states:
112
Bullen & Leake & Jacob’s Precedents of Pleadings, 14th
Edition, 2001, para. 50-02
Page 99 of 108
“I am to inform you that the particulars submitted on behalf of your client
L’Anse Fourmi Trust Holding Company Limited for the sale and transfer
of the shareholdings, also the surrender of directorships are in accordance
with the requirements of the First Schedule of the Foreign Investment Act,
1990. The company will become Foreign controlled as set out in the table
…”113
[248] SECTION 4 of the FOREIGN INVESTMENT ACT provides:
“A foreign investor who is desirous of incorporating a private company in
Trinidad and Tobago or of acquiring shares in any private company
incorporated in Trinidad and Tobago shall, prior to doing so, supply the
Minister with such information as is prescribed in the First Schedule.”
The FIRST SCHEDULE of the FOREIGN INVESTMENT ACT provides
that the following Particulars be given by a foreign investor purchasing
shares in a private local company:
“1. The name, address, nationality and former nationality of the foreign
investor …
3. The identity of any other country in which the foreign investor hold
investments.
4. The purpose of the investment.
5. Whether the foreign investor is or is not a resident of Trinidad and
Tobago within the meaning of the Exchange Control Act.
113
Exhibit RW 241 to the Witness Statement of Ranjit Wijetunge filed on the 16th
November, 2007
Page 100 of 108
6. Full particulars of the consideration for the investment and of the
payments and credits made, and the name of the bank through which each
such payment or credit was made or given.”
[249] The evidence of the Second-named Defendant both in his Witness
Statement and cross-examination underscored the point that he wished to
protect his rights in the L’Anse Fourmi Estate from what, in his eyes, he
considered to be the wrongful acts of Dave Kemp and Rolf Berthold; as
opposed to a calculated act to prevent the grant of the alleged “licence”.
[250] The Second-named Defendant testified in his Witness Statement filed on
the 16th November, 2007 as follows:
“383 … (vi) In the copy of the acknowledgment letter dated the 8th July,
2002 from the Ministry of Finance … it clearly shows that the only shares
under consideration by the Ministry of Finance for the transfer were those
of the Hilton-Clarke brothers Paul and John.
384. It was there now clear to me that Mr. Kemp had not resigned as
director as he had stated in his e-mail …
386. It was my conclusion that the ‘6 Point Settlement’ or any settlement
that I could participate in would not be completed at all …
395. Therefore on 10th October, 2002 I wrote to Ms. Candice Kelshall …
and I laid out the background to the whole situation … summarised as
follows;
Page 101 of 108
i. My project ambition and my identification of the L’Anse Fourmi
Estate site for it on Tobago in 1994 owned by Dr. Hilton-Clarke.
ii. My 1997 contract to purchase the Estate with Lord Thurlow’s
investment and my formation of the Anse Fourmi Beach and
Rainforest Resort.
iii. My planning work in liaison with … others, my promotional
activities in the UK and my sourcing of financier Robert Noonan to
finance and develop the project with us …
v. The reasons for my concern at the misleading content, misuse of
my project and intention of Mr. Kemp … and its possible
consequences to Lord Thurlow, my financier Mr. Noonan and I.”
[251] It seems to me that the acts done by the Second-named Defendant to object
to and block the “licence” application of the Claimant is no more than the
former seeking to protect his interests; this, in my view, does not amount
to fraud and/or fraudulent acts. The learned authors in Arlidge and Parry
on Fraud114 state:
“A person who believes that he has legal right to act as he does is not acting
“fraudulently” in the ordinary sense of the word and the law has generally
accepted “claim of right” as a defence to the charge of an offence involving
fraud.”
Further, in Wallingford v Mutual Society and Official Liquidator115, Lord
Selbourne held that the use of the word ‘fraudulently’ of itself does not
establish fraud. He opined:
114
2nd
Edition, 1996, para. 1-029 115
Op. cit., 701
Page 102 of 108
“ … I take it be settled as anything well can be repeated decisions, that the
mere averment of fraud, in general terms, is not sufficient for any practice
purpose in the defence of a suit. Fraud may be alleged in the largest and
most sweeping terms imaginable. What you have to do is, if it be [a] matter
of account, to point out specific error, and bring evidence of that error, and
establish it by the evidence. Nobody can be expected to meet a case, and still
less to dispose of a case, summarily upon mere allegations of fraud without
any definite character being given to those charges by states the facts upon
which they rest.”
[252] Accordingly, for the reasons set out above I do not consider that the acts of
the Second-named Defendant in objecting to the Application to transfer
shares to a foreign investor amounts to fraudulent acts.
[253] With regard to the contention by the Claimant that the Second-named
Defendant “fraudulently and unlawfully” demanded a controlling interest
in the Claimant Company, there is no further elaboration of this other than
the speculation made in the Witness Statement of Dave Kemp, at
paragraph 31, where he stated:
“Even while Ranjit Wijetunge was co-operating and providing information
in accordance with the compromise agreement … he was seeking to ensure
that he had a controlling or significant interest – 49% in the [Claimant]. It
seems that his expectation was that Robert Noonan and his companies
would take over the whole project from Rolf Berthold, Marcia Washington
and me.”
Page 103 of 108
[254] The Second-named Defendant set out the negotiations between himself
and Robert Noonan116 and from a simple reading it is mere commercial
negotiations in which the Second-named Defendant sets out his position
on the various matters regarding the L’Anse Fourmi Estate. I did not form
the conclusion, from the evidence before me, that the communications
between the Second-named Defendant and Robert Noonan amounted to
the former’s fraudulent acts to control the Claimant Company. It was at all
times clear to me that the Second-named Defendant understood that
controlling interest in the Claimant Company would be shared as he
stated117:
“295 … all directors and shareholders to resign and relinquish all their
interest in L’Anse Fourmi Trust Holding Company which would then be
controlled by Mr. Noonan, Lord Thurlow and me for the funding and
development of my Eco Resort and Dive Centre project …
300. iii) Mr. Noonan’s pledge that I will be allocated 10% equity and we
will be the directors exercising management control of the development of
the business.”
I must also note that despite extensive cross-examination on this issue, the
Second-named Defendant was not shaken and was consistent in his viva
voce evidence that he was not seeking a controlling interest in the Claimant
Company. Accordingly, I hold that the Second-named Defendant did not
116
Paras. 292-301 of the Witness Statement of Ranjit Wijetunge filed on the 16th
November, 2007 117
Witness Statement of Ranjit Wijetunge filed on the 16th
November, 2007
Page 104 of 108
“fraudulently and unlawfully” demand a controlling interest in the
Claimant Company.
[255] With regard to the allegation that the Second-named Defendant
“fraudulently” refused to lift his lis pendens, I reiterate that the use of the
word “fraudulently” does not colour an act by its mere use. The Second-
named Defendant made it clear throughout his correspondence with all
the parties that he would only lift his lis pendens upon the simultaneous
completion of the settlement. The settlement was never completed. This
approach adopted by the Second-named Defendant was clearly one done
to protect his perceived interest in the L’Anse Fourmi Estate and I do not
view it as a fraudulent act within the meaning of the authorities I have
cited above.
[256] Paragraph 15 of the Statement of Claim pleads:
“The Second Defendant’s unlawful and fraudulent conduct caused the
breakdown and suspension of good faith discussions between Kemp and
Berthold and their associates on the one hand and Noonan on the other,
thereby causing loss, damage and injury to the [Claimant].”
[257] I have already concluded that the acts of the Second-named Defendant, as
alleged by the Claimant, do not amount to fraud or fraudulent acts.
Therefore, I cannot accept this version of events as stated by the Claimant.
Further, the Defendants have contended that the breakdown in
negotiations was caused by Dave Kemp and Rolf Berthold who refused to
complete their obligations. This evidence was not challenged or rebutted
by the Claimant.
Page 105 of 108
[258] With respect to paragraph 17118(a) and (b) of the Statement of Case which
pleads that Second and Third-named Defendants fraudulently purported
to issue a Summons in High Court Action No. T99 of 2000 for hearing on
the following day to dispense with the service of the Amended Writ and
Statement of Claim - the parties to this Action, i.e. the Second and Third-
named Defendants are well within their rights to seek to settle a matter
between them. The Claimant was not a party to these proceedings.
Accordingly, I find that there was nothing fraudulent within the meaning
cited above that occurred by this act of the Second and Third-named
Defendants.
[259] With respect to paragraphs 17(c) and (e) of the Statement of Case which
averred that the Defendants fraudulently sought to rely on a deed of
conveyance of the L’Anse Fourmi Estate to the First-named Defendant on
the 17th September, 1997, when it was not yet in existence - I have already
concluded that the Deed conveying the L’Anse Fourmi Estate to the First-
named Defendant was executed on the 18th September, 1997 as such this
allegation cannot stand.
[260] As regards paragraph 17(d) of the Statement of Case which pleaded that
the Defendants fraudulently abused the Court’s process by seeking a
declaration by consent that would affect the interest of a third party - In
my view the act of making a declaration by consent does not fall within the
purview of an abuse of the court process.
118
Reproduced at Para. 12 of this Judgment
Page 106 of 108
[261] In Danny Balkissoon v Roopnarine Persaud and J.S.P Holdings
Limited119, Jamadar J. (as he then was) opined:
“While the categories of abuse of the process of the court are many and
depend on the particular circumstances of any case, it is established that
they include: (i) litigating issues which have been investigated and decided
in a prior case; (ii) inordinate and inexcusable delay, and (iii) oppressive
litigation conducted with no real intention to bring it a conclusion.”
In my opinion, the act of the Defendants to obtain a declaration by consent
does not fall within the description given by Jamadar J (as he then was). I
also note that the Consent Order stated that it was made “subject to all
proper encumbrances and prior interests” thereby effectually protecting
any third party interests. This allegation, therefore, cannot stand.
[262] Lastly, with respect to paragraphs 17(f) and (g) of the Statement of Case
which pleaded that the Defendants unlawfully and fraudulently procured
the oath of Attorney-at-Law Lee Kelshall and fraudulently sought to
register Deed No. 20030287260 - I have dealt with the issue of the
conflicting dates on this Deed above and for the reasons therein referred to
this allegation cannot stand.
119
CV2006-00639, p. 8
Page 107 of 108
CONCLUSION
[263] In the circumstances, I make the following orders:
i. The Claimant’s claim is hereby dismissed;
ii. Judgment for the First-named Defendant on its counterclaim;
iii. A Declaration that the First-named Defendant is the fee simple
owner of ALL AND SINGULAR that certain piece or parcel of
land known as “L’Anse Fourmi Estate” comprising TWO
HUNDRED (200) ACRES be the same more or less situate at
L’Anse Fourmi in the parish of St. John in the island of Tobago
(being a portion of a larger parcel of land originally comprised
TWO HUNDRED AND TWENTY ONE (221) ACRES AND
THIRTY (30) PERCHES) be the same more or less and bounded
on the North by the Caribbean Sea, on the South partly by the
Northside Road and partly by the Caribbean Sea and partly by
State Lands and on the West by the Sea or howsoever otherwise
the same may be butted, bounded, known or described (“the
L’Anse Fourmi Estate”). Save and except the following parcels of
land subsequently sold to diverse persons, namely:
a. ALL AND SINGULAR that certain parcel of land
comprising TEN (10) ACRES be the same more or less
purchased by one Ricki Ganase and others by Deed No.
5317 of 1995;
b. ALL AND SINGULAR that certain parcel of land
comprising SIX (6) ACRES TWO (2) RODS AND TWO
Page 108 of 108
POINT FIVE (2.5) PERCHES purchased by Jennifer Bryant
Hilton-Clarke by Deed No. 9054 of 1992;
c. ALL AND SINGULAR that certain parcel of land
comprising TEN (10) ACRES purchased by the Tobago
House of Assembly pursuant to the Order of Mr. Maurice
Corbin in Arbitration Proceedings.
iv. A Declaration that the Deed dated the 28th December, 2001 and
registered on the 28th February, 2002 as Deed No. 00415105 is null
and void and of no effect, and the Registrar General is directed to
expunge the said Deed from the records;
v. The Claimant to pay the Defendants’ costs in this matter to be
assessed in default of agreement by a Master;
vi. The Claimant to pay the First-named Defendant’s cost on its
counterclaim to be assessed in default of agreement by a Master;
vii. Damages and costs to be assessed by a Master in Chambers.
JOAN CHARLES
JUDGE