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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: 31 st January, 2014 JUDGMENT

Transcript of JUDGMENTwebopac.ttlawcourts.org › LibraryJud › Judgments › HC › charles › 20… · page 1...

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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

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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.

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[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;

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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-

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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

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[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);

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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.

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[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

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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).

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[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

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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:

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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;

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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

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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

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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

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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.

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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.

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[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.

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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;

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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.

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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

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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

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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

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[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

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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

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[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

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[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

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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

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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

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[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.

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[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

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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.

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[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

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[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

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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

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[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%)

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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.

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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

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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;

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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

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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.

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[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

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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

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[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

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[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

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[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

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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.

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[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

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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

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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

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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

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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

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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

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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

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[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

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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

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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;

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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

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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

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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

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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

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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

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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

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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.

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[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

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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

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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

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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.

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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.

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[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.

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[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

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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

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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:

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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.

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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

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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

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[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

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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

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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

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(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

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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

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[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

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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;

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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.

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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

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“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

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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

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[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

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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

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[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

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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.

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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

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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

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[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

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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

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[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

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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

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[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

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“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

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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;

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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

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“ … 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.”

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[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

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“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.

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[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

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[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

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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

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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