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Court settles the matter involving Choko’s Sports Bar and Grill on Hughes Street – Part II

High Court Judge Agnes Actie - handed down the judgement

Female high court judge Agnes Actie has finally brought an end to feuding between family members linked to “Choko’s Sports Bar and Grill” and “Choko’s Entertainment Center” on Hughes Street.

It involved a legal battle between the brother and son of the owner of the property. Oswald Sitney and Francis Sitney.

Attorney-at-law Francis Paul represented Oswald who was the Claimant and Johanan Lafeuillee represented the other party (the defendant).

The evidence before the court is that in July 2015 Francis Sitney without the consent of the property owner entered the Hughes Street property and started to operate a restaurant and bar and also created a paid parking lot on the property.

The information before the court is that Francis operated the business “solely for his benefit and failed to pay rent or any sums of money whatsoever to the deceased or to the claimant as one of the attorneys of the deceased.”

As a public service, THE NEW TODAY reproduces in full the Justice Agnes Actie judgment on the matter:

[36] In Lloyds Bank Plc v Rosset & Anr, the House of Lords held that the fundamental question to be resolved was whether there had been at any time prior to the acquisition of the property, or exceptionally at some later date, any agreement, arrangement or understanding reached between the parties that the property was to be shared, beneficially coupled with detrimental action or alteration of position on the part of the person claiming the beneficial interest.

[37] Where there is no evidence to support a finding of an agreement or arrangement to share, and where the court must rely entirely on the conduct of the parties both as the basis from which to infer a common intention to share the property beneficially and as the conduct relied on to give rise to a constructive trust, direct contributions to the purchase price by the partner who is not the legal owner will readily justify the inference necessary by the creation of a constructive trust and it is extremely doubtful whether anything less will do.

[38] Although it is not disputed that the defendant expended monies on the Carenage property by way of the payment of taxes, it is for the defendant to prove that the amounts he alleged were spent on the refurbishment, maintenance and cleaning of the Carenage property to improve the deceased’s property, and that the amounts spent were not assets of the deceased. It is the defendant’s pleaded defence that he and his brother were appointed attorney for the deceased due to his rapid ailing health. The defendant pleaded that he prepared a rental agreement for the said property which the deceased refused to sign.

[39] Further, the defendant filed a second supplemental list of documents on the 15th March 2023. One of the exhibits is an order of the court dated 8th July 2019, where Smith J being satisfied that the deceased was a person who by reason of mental disability was incapable of supervising his financial, medical and legal affairs, appointed the defendant as a Guardian of the deceased with general powers to manage, control and supervise all his affairs as if it were his dealing with them personally, inclusive of medical and legal affairs of the deceased, with authority to demand accounts and reports of all money in commercial banks and related institutions. The defendant was granted authority to manage and administer over the property of the deceased including appointing gardeners and other persons.

[40] The defendant, under the guardianship order, was also directed to keep and produce to the court or any relevant authority that requires it, a full accounting and financial statement of the deceased claims including any monies disbursed for his personal care, including medical and legal expenses.

[41] As it stands the defendant, by his own pleadings as attorney under power of attorney granted by the deceased and the order of guardianship, acknowledged that the deceased was unable to manage his affairs. Moreover, given that the deceased was deteriorating and resident in the Home of the Aged from the year 2013, the likelihood of the deceased sharing such a common intention with the defendant in his deteriorating health at the time is false.

[42] The defendant was in a position of trust for his deceased father during his lifetime both under a power of attorney and as a court appointed Guardian. He could not have invested and convert trust property into his own personal use.

Whether the Carenage property or a portion thereof is Subject to a Resulting Trust in Favour of the defendant

[43] The defendant asserts that the Carenage property is held on resulting trust in his favour.

[44] Resulting trusts are defined in Halsbury’s Laws of England as:

“A trust arising by operation of law:

(1) Where an intention to put property into trust is sufficiently expressed or indicated, but the actual trust either is not declared in whole or in part or fails in whole or in part; or

(2) Where property is purchased in the name or placed in the possession of a person ostensibly for his own use, but really in order to effect a particular purpose which fails; or

(3) Where property is purchased in the name or placed in the possession of a person without any intimation that he is to hold in trust, but the retention of the beneficial interest by the purchaser or disposer is presumed to have been intended.

In all these cases the beneficial interest in the property so far as not applicable to any sufficiently expressed or indicated beneficiary or object, results or reverts to the disposer or purchaser of the property or in the case of his previous death his representatives.”

[45] Moreover, in Westdeutsche Landesbank v Islington the following was held:

“Under existing law a resulting trust arises in two sets of circumstances: (A) where A makes a voluntary payment to B or pays (wholly or in part) for the purchase of property which is vested either in B alone or in the joint names of A and B, there is a presumption that A did not intend to make a gift to B: the money or property is held on trust for A (if he is the sole provider of the money) or in the case of a joint purchase by A and B in shares proportionate to their contributions. …. (B) Where A transfers property to B on express trusts, but the trusts declared do not exhaust the whole beneficial interest”.

[46] The claimant submits and the court accepts that the monies spent on the property as pleaded by the defendant do not equate to or do not create a resulting trust in his favour. The defendant having been appointed under the power of attorney was an agent for the deceased during his lifetime. The appointment of the claimant and the defendant as agents under the power of attorney created a fiduciary relationship whereby the agents were required to manage the property and make financial and business decisions on behalf of their father during his lifetime.

[47] The broad powers granted in the power of attorney required both the claimant and the defendant to act with the highest degree of good faith in the best interests of their father and not for their personal gain. The claimant asserts that the defendant has taken possession of the deceased’s property and has acted as if it is his personal property without accounting to anyone.

[48] Where an agent takes actions that are not authorized by the power of attorney, the agent can be held liable for breach of fiduciary duty. The defendant as agent is under a duty to keep bank statements and all other documents demonstrating the actions that have been taken in relation to the property on behalf of deceased owner during lifetime. As agent he was required to maintain records to address any questions or challenges that may arise with respect to the management of the deceased’s assets. The defendant as joint agent with the claimant was also required to consult with the claimant being mindful of the obligations imposed on both of them under the power of attorney.

[49] Further, the defendant was appointed as a guardian for the deceased by order of Smith J in 2019. The order directed that the defendant as guardian was to provide an account of his affairs with the deceased’s accounts. The defendant as an agent under the power of attorney and as a guardian was a trustee for the deceased during his lifetime.

[50] The court in A.G for Hong Kong v Reid8 stated:

“A trustee must not use or deal with the trust property or exploit his position for his own private advantage for he will be strictly liable to account for his profits of which he will be a constructive trustee: and he will similarly be personally accountable for losses arising where there real sensible possibility of a conflict between his fiduciary duty and his self-interest.”

[51] The court, based on the evidence presented by the claimant and reading the pleaded defence, is of the view that the claimant has proved his case that the defendant has acted outside his fiduciary duties as agent under the power of attorney granted by the deceased during his lifetime.

[52] The court is of the view that the defendant’s actions were not done in the best interest of the deceased as he alleges. The defendant has exceeded his powers as trustee and dealt with the property for his own personal use in breach of his obligations under the power of attorney and as a court appointed guardian for the deceased. When an agent accepts his or her appointment, a special legal relationship that is a “fiduciary” relationship is created. He or she commits a breach of trust if he/she fails to carry out his/her duties in relation to the fiduciary trust or exceeds his/her power.

[53] It is therefore necessary for the defendant to prove his dealings with the affairs of his father under the power of attorney and order of Guardianship respectively, and also since the death of his father. Accordingly, the defendant is required to provide full accounting and financial statements of his dealings with the property to the claimant in his capacity as personal representative of Thomas Bristol, deceased.

[54] Given the above circumstances, judgment is entered in favour of the claimant:

(1) The defendant, Francis Sitney, shall provide an account of his dealings with the deceased’s property on the Carenage and shall account of all monies outstanding and/or received in respect of the rental of the said land from the business operated under the name “Sweet Mango” within sixty (60) days from today’s date;

(2) The defendant is liable to make good all sums of monies received by him from the rental of the said property;

(3) The defendant, Francis Sitney, shall pay to the claimant such sum as may be found due upon the taking of the said account;

(4) The defendant shall pay Mesne profits at the rate of $2,700.00 per month from in or about July 2015 to November or December 2017, and from on or before 23rd August 2019 until possession of the said property is delivered up;

(5) The defendant shall give up vacant possession of the Carenage property within sixty days (60) of today’s date;

(6) Damages and costs to be assessed if not agreed.

Agnes Actie
High Court Judge
By the Court

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