Lyndais Rosado v Albert Young

• Jurisdiction: Belize
• Judge: Nabie, J.
• Judgment Date: 11 September 2024
• Docket Number: CLAIM NO. 52 OF 2024
• Court: Supreme Court (Belize)

BETWEEN:

Lyndais Rosado

Claimant/Applicant

and

Albert Young

Defendant/Respondent

CLAIM NO. 52 OF 2024

IN THE SENIOR COURTS OF BELIZE

IN THE HIGH COURT OF BELIZE

Catchwords:

APPLICATION FOR INJUNCTION

Appearances:

Mr. Ian Gray for the Claimant

Mr. Andrew Bennett for the Defendant

RULING

Nabie, J.

1 The application for injunction is refused. I have reviewed the application and the evidence and I have also considered the arguments of the parties. The applicant has not satisfied the requisite principles to be granted the injunction.

Background

The Substantive Claim

2 By fixed date claim form filed on 14 ^th February 2024, the applicant seeks inter alia the recovery of title and possession of the property described as Parcel 3109, Block 16, Ladyville/Lord's Bank (Parcel 3109). The applicant alleges that the respondent had entered into three contracts with her for goods and services. The applicant avers that she paid for all the goods and services and therefore still holds an equitable interest.

3 It is alleged that the respondent has not paid the purchase price of $30,000.00 for Parcel 3109. Further that, the respondent has breached contracts dated 30 ^th October 2021 and 2 ^nd November 2021. The applicant pleaded that it was both expressed and implied through the contracts that the respondent would perform caregiver services for the applicant. The contracts produced are the agreement for sale and the conveyance of the Parcel 3109. The applicant has pleaded “particulars of contract”. 1

4 The applicant alleges that it was agreed that the applicant would develop Parcel 3109 by installing two houses from the Mennonites and she would convey the property to the respondent and cover all related expenses. In return the respondent and his wife would perform caretaker services for the applicant and her home until her death. The applicant conveyed Parcel 3109 to the respondent by conveyance dated 2 ^nd November 2021. The respondent obtained a Land Certificate for Parcel 3109 on the 25 ^th October 2022.

5 The applicant averred that in mid-April 2023, she discovered that three cheques were missing from the cheque book. The respondent was accused of stealing the three cheques and cashing a cheque in the amount of $9,000.00 at the Atlantic Bank Limited.

6 The applicant alleges that the respondent breached the contracts by failing to pay the purchase price of the property and stealing three cheques in April 2023. The respondent has refused to return the title and possession of Parcel 3109. The applicant has also pleaded ‘particulars of breach of contract’ 2 and “particulars of damages and loss” in the sum of $161,000.00

The Injunction

7 By notice of urgent application for an order for interim injunction dated 31 ^st January 2024 and filed on 5 ^th February 2024, the applicant is seeking to restrain the respondent by himself or through his agents from dealing in any way with the title to Parcel 3109 3. The grounds of the application are:

• “(1) That the Respondent entered into a labor contract with the Applicant and breached the terms and conditions of the contract.

• (2) That the Respondent entered into another contract to convey the subject property into his name and also breached that contract;

• (3) That the Respondent entered into a further contract with the Applicant to purchase two Mennonite homes and also breached that contract;

• (4) That Respondent has used misrepresentations and deception to induce the Applicant into entering these contracts to his advantage.

• (5) During or about April 2023 the Defendant breach the said labor agreement when he stole three personal check from the Claimant and cashed one of them at the Atlantic Bank.

• (6) The Applicant has made several verbal and written requests to the Responded (sic) to return her property with the dwelling houses and he has refused to so do.”

8 In support of the application, the applicant swore to an affidavit. She deposed that she is a part equitable owner of Parcel 3109. She deposed that she is the former employer of the respondent, who worked for her as a handyman and that his common law wife was a domestic worker. She further stated it was agreed between the parties that she would convey to the respondent, at no cost, a house and lot in the Old Windmill Area, Ladyville Village in return for caregiver services until her death. The applicant paid for all costs and fees of the conveyance which was done thorough an attorney at law. The applicant says that she invested over $125,000.00 in Parcel 3109. In her view, the respondent breached the agreement by stealing three cheques. It was revealed in the hearing that the respondent had already sold Parcel 3109 and that this was the purpose of seeking injunctive relief. This transaction for the sale of Parcel 3109 has been put on hold by the filing of a “caution” by the applicant.

The Defence/Response to Injunction

9 The respondent denied that he was a party to contracts for goods and services with the applicant. He also denied that there were any implied or express terms or the particulars of contract of the sale agreement for the conveyance for caregiver services. The respondent admitted to the agreement for sale and the conveyance. The respondent also admitted that that there has been improvements to the property but could not verify the costs associated with same.

10 It was pleaded in the defence that the respondent returned to the applicant the sum of $9,000.00 which was unlawfully obtained by a third party. The respondent denied stealing the cheques as alleged by the applicant.

11 The respondent swore to an affidavit in response to the application for the injunction. He stated that he met the applicant over 15 years ago and during those years the parties developed an amicable relationship and that he provided construction services and periodic maintenance from time to time at the applicant's home on Princess Margaret Drive. The respondent denies that he was employed by the applicant. The respondent avers that in 2018, the applicant asked the respondent and his common law wife to live in her downstairs free of charge so that she could have a sense of security. The respondent did odd jobs for the applicant without charging any fees. It was denied that there was any pre contractual discussions for caregiving services in exchange for the house and lot in the Old Windmill Area, Ladyville (Parcel 3109).

12 In answer to the application, the respondent deposed that in 2020, the applicant “expressed her desire to transfer all her interest in the land to me” which I take to be Parcel 3109. Her attorney on record prepared the sale agreement and conveyance. The respondent indicated that the applicant instructed her attorney to draft a sale agreement followed by a deed of conveyance to enact the transfer. There is Land Certificate in the respondent's name dated 25 ^th October 2022.

13 Further, the respondent confirmed that there were improvements to the property (Parcel 3109) in terms of the construction of a fence and installation of chattel houses. He indicated that those were done by the applicant on her own. The respondent denied that he stole any cheques and that he was now charged with a summary offence for which he pleaded not guilty.

Applicant's Reply to Defence and the Injunction

14 The applicant in her affidavit in reply 4 maintains that the respondent and his wife lived at her house as a handyman and domestic respectively until 2023. The applicant agreed that she expressed the desire to transfer one of her lots to the respondent. She deposed that the transfer gift would be accompanied by terms and

conditions. The implied term was that the respondent would conduct business with care and skill and honesty. The gift was conducted through a Deed of Conveyance to assure that the respondent received the gift in the event that the applicant died before the transaction was completed. The applicant stated that the respondent was fully aware of what his duties and obligations were pursuant to the gift. She also deposed that she spent in excess of $275,000.00 to improve the property - Parcel 3109. The applicant highlighted the need for the injunction that being that the respondent has sold the property and the sale is in progress. The applicant has filed what is called “Further Skeleton Argument Evidence on behalf of the claimant” 5 which annexes an application for a Caution registered on 21 ^st March 2024 and a record of cases against the respondent

15 Further, the applicant claims that she paid $300,000.00 in doing improvements to Parcel 3109 in her Reply to Defence.

Issue: (1) Whether the injunction should be granted?

(2) Is there a serious issue to be tried?

(3) Where does the balance of convenience lie?

Law and Discussion

16 This is a rather unfortunate set of circumstances. There has been a transfer of house and land (Parcel 3109) from the applicant to the respondent. The circumstances surrounding this transaction are disputed by the parties. In addition to the pleadings in the substantive claim, the parties have both sworn evidence in the application for the injunction.

17 The law regarding granting an injunction is clear. But before I embark on that I would like to examine the evidence and pleadings so far.

18 In her pleadings, the applicant alleges breach of three contracts, only two have been produced. Those two contracts are the sale agreement and the conveyance for Parcel 3109 as aforesaid. The conveyance has in it the usual clause: “ the vendor hereby acknowledges receipt thereof” and that is in respect of the purchase price of $30,000.00. There is no...