the republic of trindad and tobago in the high court...

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THE REPUBLIC OF TRINDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV: 2015-00705

BETWEEN

MERRYL SEE TAI TRADING AS KAYAK CENTRE

TRINIKAYAK LTD.

PADDLES LTD.

CLAIMANTS

AND

CHAGUARAMAS DEVELOPMENT AUTHORITY

DEFENDANT

Before the Honourable Madam Justice E. Donaldson-Honeywell

Appearances:

Mr. Garvin Simonette instructed by Ms. Sophia Vailloo for the Claimants

Mr. Douglas Mendes, SC and Mr. Devesh Maharaj instructed by Ms. Shahana Ali for the

Defendant

Delivered: September 21, 2015

JUDGMENT

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Introduction:

[1] The Claimants’ principal, Mr. Merryl See Tai, has contributed to the promotion of sport,

recreational and environmental protection activities nationally by operating the business

of Watersports Training and Kayak and Bicycle Rentals at Williams Bay, Chaguaramas

for the last twenty-two years. More recently the Claimants’ business operations have

played a part in the development of the sport of Dragon Boat Racing at Williams Bay.

This together with other non-motorized sporting activities run by the Claimants has been

a welcomed addition to the extra-curricular activities available to students for improved

educational experiences and facilitating healthy recreational activities for adults as well.

[2] The opportunity for the Claimants to have contributed in this way was afforded by the

Defendant, as landlord of the property in Chaguaramas from which the Claimants

operate. Over the years the Claimants have paid rental at no more than the initial rate of

One Thousand, Nine Hundred Dollars ($1,900.00) plus VAT, per month, to operate at the

location. The Defendant is currently engaged in the Boardwalk Family of Projects,

geared to monetizing assets as a way to attract investors with a strategic positioning of

the peninsula, by developing world class facilities alongside the Preservation of the

Nature Reserve. The Boardwalk Family of Projects, which is still underway, is said to

have successfully been providing a “safe, family oriented entertainment and recreational

area that is being utilized and enjoyed by thousands of citizens and visitors on a weekly

basis.”

[3] The land initially leased to the First Claimant was a beach front parcel of 13,810 square

feet [“the smaller parcel”]. It was leased to the First Claimant for a period of one year

following which the First Claimant was allowed to continue as a Tenant without a

formally renewed lease being executed. The First Claimant, from around 1994, decided

to operate on the smaller parcel as a Limited Liability Company under the name Kayak

Centre. In or around 2004 – 2005, the Claimants having envisioned the operation of a

larger scale water sports venue at Williams Bay with retail outlets, restaurant, bar and

additional recreational facilities, proposed to the Defendant that they be afforded the

opportunity to expand the Kayak Centre. They entered negotiations with the Defendant

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to formally renew the lease and also to include in the new lease a larger area of land

comprising an additional 35,896 square feet [“the larger parcel”].

[4] Negotiations continued over several years and no new lease was executed. Sticking

points in the negotiations for a new lease included the number of years the land would be

leased; the quantum of land and the amount of rent to be paid. The current Claim is

premised on the view held by the Claimants that by August 19, 2013 an agreement had

been reached for a new lease of the larger parcel. However, on January 30, 2015 the

Defendant issued a Notice to Quit as it relates to the smaller parcel.

The Claim:

[5] The Claimants filed a Claim Form and Statement of Case on the 6th

March, 2015

claiming that there had been an agreement for a lease between the Third Clamant and the

Defendant for a thirty year lease of the larger parcel at Williams Bay, Chaguaramas. They

claimed specific performance on the grounds that the Defendant was in breach of that

agreement as it failed to grant the lease. The Claimants also sought declaratory relief

that there had been a valid agreement as contained in four documents. The content of

these documents, which the Claimants contend amount to an agreement, for a lease is too

lengthy for inclusion in this Judgment. However, the documents are of such relevance in

the determination of this matter that they are summarized as follows:

The first document is a letter dated November 3, 2006 from the Defendant to the

First Claimant confirming that a valuator had assessed the rent for the larger

parcel of land at Seventeen Thousand, Two Hundred Dollars and Fifty-five Cents

($17,200.55) VAT inclusive. It must be noted that this letter, signed by the

Defendant’s Manager-Tenancy, does not expressly speak to an agreement for a

lease.

The second document is a draft lease dated 2007. It is important to note the fact

that this lease is for a period of three years and not for the thirty years which the

Claimants contend was agreed. It stipulated rental at a monthly rate of Fourteen

Thousand, Nine Hundred and Fifty Seven Dollars ($14,957.00) exclusive of VAT.

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The third document is the Minutes of the Defendant’s 382nd

Board of Directors

Meeting held on July 25, 2013. The meeting was not attended by the Claimants.

However; it records a resolution that the Board accepted the report of the

Defendant’s Legal and Leasing Committee. That committee had two days earlier

“accepted the recommendation to grant a thirty year commercial lease to Paddles

Ltd consistent with the CDA’s leasing policy and subject to:

Settlement of all outstanding arrears;

Satisfactory compliance report; and

The lease is to provide that the tenant must sublet to the CDA’s

satisfaction.” [Emphasis added]

This resolution, though not at that time communicated to the Claimants, was part

of what the Claimant contends was evidence of the agreement by the Defendant to

the thirty year lease.

Finally, the fourth document pleaded in the Claim as comprising the Agreement

for a lease is a letter dated August 19, 2013 in which the Defendant’s then

Manager Legal advised the Third Claimant that the Board had at its 382nd

Meeting approved the lease for a period of thirty years. The letter states further,

however, that the approval was “subject to payment of all outstanding arrears”

and closes with an indication that the Defendant’s attorneys will shortly make

contact to meet the Third Defendant to “discuss settlement of the arrears and to

finalize the leasing arrangement.”

[6] The Claimants in this matter further claimed that the Defendant issued an unlawful

Notice to Quit in relation to the smaller parcel as it did not provide for six months’ Notice

which the Claimants claim was necessary in the circumstances. Accordingly, they sought

a declaration that the Notice to Quit was invalid and of no effect. They further sought

injunctive relief restraining the Defendant from evicting them from the smaller parcel.

The injunction was granted forthwith on March 20, 2015 on an interim basis and it

remained in place up to the date of this Judgement.

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[7] On the 10th

April, 2015, the Defendant filed its defence and counterclaim and on the 13th

April, 2015 an amended defence and counterclaim.

[8] In its defence the Defendant averred that there was never any agreement reached between

the Third Clamant and itself. The Defendant further averred that the Notice to Quit issued

was valid as it was addressed to the named tenant in the original lease and the known

business operating out of the demised premises and that the one month’s Notice given

was sufficient as the Claimants had held over on a monthly tenancy. The Defendant

counterclaimed for declaratory relief, mesne profits and damages.

Factual Background:

[9] The Defendant, on the 8th

January, 1993, leased the smaller parcel at Williams Bay

Chaguaramas to Merryl See Tai for a period of one year from the 1st January, 1993 at a

monthly rent of Nineteen Hundred Dollars ($1900.00) Vat Exclusive. The one year term

expired on the 31st December 1993.

[10] The First Claimant held over at the end of the term December, 1994. It is the First

Claimant’s contention that in 1994 he informed the Defendant that from then on he

would be trading as Kayak Centre Ltd. Thereafter, in 2009 he says he elected to trade

through another company “Trinikayak Ltd, the Second Claimant herein. The

Defendant has allowed the Claimants to remain in possession without renewal of the

lease. The tenant has since been paying a monthly rent of Nineteen Hundred Dollars

($1900.00) plus VAT and the Defendant has been accepting it. Receipts for rent

payments entered into evidence indicate payments made either by the First Claimant or

by the Second Claimant. Invoices were, however, addressed to the First Claimant.

[11] The Defendant alleges that the tenant has had a long history of defaulting in payment of

rent and that the rent sum is far less than current market value. However attempts to

conduct rent reviews have been met by disagreement from the tenant.

[12] The Defendant further contends that the occupancy was never on a year to year basis

and the tenant was allowed to continue occupancy on a month to month basis in

accordance with its payment of rent.

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[13] Sometime in or around 2004 – 2005 negotiations and discussions between the First and

Third Claimants and the Defendant took place with regard to the leasing of a larger

parcel of land. The Defendants allege that these negotiations concerned the granting of

a lease of a term of three years. The Claimants contend, however, that although some

documentation that was contemporaneous with these discussions, including a May 21,

2007 Offer Letter from the Defendant related to a three year lease, the Claimants were

always negotiating for a long-term lease for thirty years. In an earlier contemporaneous

document, the Valuation Report of 18th

October, 2006 which valued the larger parcel at

a monthly value of Seventeen Thousand, Two Hundred Dollars and Fifty-five Cents

($17,200.55) Vat Inclusive, there was also reference to a three year period. The

Valuation Report stated under the heading “Tenure” that “Rental will be on a three year

period in the first instance with option to renew.” By letter dated 3rd

November, 2006, a

copy of this report was sent to the First Claimant.

[14] The Third Claimant submitted certain proposals for their proposed use of the larger

parcel and on the 22nd

March, 2007 at the Defendant’s Legal and Leasing Committee

Meeting, this was reviewed by the committee. The committee agreed to submit the

First Claimant’s Application for a lease for approval by the Board. In 2007, a “draft”

lease for a term of three years was sent to the First Claimant for review.

[15] The First Claimant’s then attorney-at-law, Mr. Sharma, by letter dated 20th

September,

2007 responded with the First Claimant’s comment on the draft lease. The First

Claimant did not agree to the terms of the draft lease but, among other things, had new

proposals for rent and also for the term of the lease.

[16] By letter dated 16th

November, 2007, the Defendant responded and informed

Mr. Sharma that they did not accept the First Claimant’s proposal for rent. A copy of a

revised lease was forwarded to the First Claimant which contained the provision for the

term of three years commencing 1st September, 2007.

[17] By letter dated 12th

February, 2008 the First Claimant rejected the draft lease for a term

of three years.

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[18] The Defendant states that at its 345th

Statutory Meeting on 27th

March, 2008, the First

Claimant’s request for a thirty year lease was discussed. The matter was considered by

the Board and a request was made to Management to obtain details of the principals of

the First Claimant and for resubmission of their Application for the Board’s

consideration.

[19] On 10th

June, 2008, at the 347th

Statutory Meeting the matter was again discussed. The

Board advised that it had approved the lease for three years with option to renew. The

Board further advised that it was not averse to recommending a thirty year lease subject

to certain conditions and being provided with certain documents.

[20] On 24th

July, 2008 at the 348th

Statutory Meeting, the Board was informed that only

part of the information requested was submitted and the Certificate of Good Standing

from the Registrar of Companies was outstanding. The Defendant admits that this

Certificate was eventually submitted but avers that negotiations were never concluded

as the Defendant never made the offer for the thirty year lease.

[21] By letter of 18th

May, 2010 the attorneys for the First and Third Claimants, Ashmead

Ali & Co., rejected the draft three year lease.

[22] It is the Defendant’s submission that there was never any meeting of the minds and no

concluded agreement for the 2007 draft three year lease between the parties.

[23] A meeting was held on 20th

July, 2013 regarding the proposed lease of the larger parcel

for thirty years for the development of the expansion project that had been proposed.

Merryl See Tai representing Paddles Limited was present along with the Defendant’s

Chief Executive Officer. Paddles Limited indicated that they would be capable of doing

this project consistent with the Defendant’s guidelines.

[24] On 25th

July, 2013 at the Defendant’s 382nd

Statutory Meeting, a presentation was

made regarding the Boardwalk Family of Projects of which the Claimants’ Proposed

Project was a part. The Defendant, by letter dated 19th

August, 2013, informed the

Third Claimant that the Board approved a lease for thirty years “subject to payment of

all outstanding arrears”. The letter further disclosed to the Claimants that according to

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the Defendants records, the sum of One Million, Sixty-four Thousand, Four Hundred

and Forty-two Dollars ($1,064,442.00) representing “retroactive payment at the rental

rate” of Fourteen Thousand, Three Hundred and Sixty-two Dollars ($14,362.00) per

month from 2007 to June, 2012 and Fifteen Thousand, Five Hundred and Ninety-four

Dollars ($15,594.00) for the period July, 2012 was then owed to the Defendant. The

letter closed with an indication that attorneys-at-law for the Defendant would contact

the Third Claimant to discuss “settlement of arrears stated herein and to finalize the

leasing arrangement”.

[25] The Defendant contends that this letter was not a promise to grant the thirty year lease

but served only to set out terms under which the Defendant was willing to agree to a

lease. According, to the Defendant there was no agreement for a lease because the

Claimants never accepted the terms set out in the August 19, 2013 letter and

specifically rejected that arrears of rent should be paid before moving on with the thirty

year lease.

[26] Efforts to reach agreement had not, however, been abandoned. On 24th

February, 2014

there was another meeting between the Defendant and Merryl See Tai along with their

attorneys. The Defendant claims that at this meeting a Letter of Intent was discussed

and it was indicated that the Letter of Intent was the method by which lease

negotiations would commence. The Defendant further asserts that the issue of

retroactive rent arrears was never resolved. As far as the Defendant was concerned

there was no agreement for a new lease since the rental arrears condition was not met

and “the tenant continues to occupy this prime spot for minimal rent.”

[27] On December 17, 2014 the Defendant wrote to the Third Claimant issuing a Letter of

Intent for their agreement regarding a thirty year lease. In the cover letter it was stated

among other things that:

The Defendant maintains that Paddles Limited had held over as a month to month

tenant whose tenancy can be determined by one months’ Notice.

The First Claimant’s one year lease expired since 1994 and despite all efforts to

negotiate a new lease, they have been unsuccessful.

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Accordingly, strict timelines for negotiations have been set in the enclosed Letter

of Intent.

In keeping with the Master Plan, should the Letter of Intent be unsuccessful in

finally producing an executed lease between the parties, the Defendant will not

continue negotiations.

The Third Defendant must respond to the letter within seven days.

[28] The Letter of Intent which was enclosed with the cover letter proposed a four phase

approach to negotiating a lease. The first phase would require the Third Claimant to

provide details on the background and profile of the Company within fourteen days.

Thereafter the Defendant would review same within a stipulated time frame and if not

satisfied would be entitled to terminate relations. The second phase would be the

negotiation of rents payable and if the parties failed to arrive at an agreement on rent

within fourteen days the Defendant would be entitled to terminate relations. The third

phase would be provision of business plans and other feasibility studies within thirty

days and again if the Defendant was not satisfied on reviewing same relations between

the parties could be discontinued and the Defendant would have no obligation to

proceed further towards agreeing to a lease. The fourth phase would be the submission

by the Defendant to the third Claimant of its Master Lease Format for review and if the

parties failed to come to an agreement on the terms and conditions of the lease within

twenty-eight days thereafter the Defendant would be under no obligation to continue

further negotiations for the proposed thirty year lease. The Third Claimant was

required to sign the Letter of Intent within seven days if accepted or to indicate its

refusal, failing which negotiations for the proposed thirty year lease would come to an

end.

[29] According to the Defendant, several extensions were given to the Claimants to respond

to the Letter of Intent and it was only on the 26th

January, 2015 that the Claimants’

attorneys issued a response. By this response, the Claimants rejected the Letter of

Intent and proposed that a meeting be held to discuss the way forward. They

contended that the draft Letter of Intent “runs fundamentally contrary to what we see

as your client’s fundamental public law duty to our client drawn against the long

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history of the relationship between the public authority and the citizen.” The

Claimants asked for a meeting between the parties to be convened “to agree an agenda

for efficient future implementation of the multi-user water sporting facility.”

[30] The Defendant, thereafter on the 30th

January 2015 indicated by letter that, the

Claimant having refused the Letter of Intent, the Defendant was no longer willing to

continue negotiations for the proposed lease.

[31] On that same date a Notice to Quit was delivered addressed to “Mr. Merryl See Tai,

Paddles Limited” giving six days more than a month’s Notice to Quit the premises of

the smaller parcel of land (the subject of the 1993 lease). The Claimants did not vacate

the premises. Instead they filed for injunctive relief preventing their forced eviction on

grounds that the Notice was too short and should have been addressed to the Second

Claimant, Trinikayak Ltd.

Issues:

[32] The Issues to be determined in the present case are:

Whether there was an enforceable agreement for a lease between the Claimants

and the Defendant with respect to the larger parcel.

Whether a valid Notice to Quit was issued as it relates to the smaller parcel on

January 30, 2015 and accordingly whether it terminated the tenancy of the said

parcel. The specific aspects of the validity of the Notice to be considered are:

Whether the tenancy held over was to be considered as a yearly tenancy

which would require that at least six months’ Notice should have been

given or whether it was a month to month tenancy so that the one months’

Notice given was sufficient; and

Whether the Notice to Quit was addressed to and received by the correct

person in law in order for it to be treated as a valid Notice.

Evidence and submissions:

[33] The evidence in this matter is largely contained in the copious documentation entered

into evidence through two witnesses for the Claimants and two for the Defendant.

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Both the Claimants’ and the Defendant’s witnesses testified in a confident and

forthright manner. They were witnesses of truth speaking mainly to the facts contained

in the documents before the court.

[34] In frank responses to questions in cross-examination the main witness for the

Claimants, Mr. Merryl See Tai confirmed that he had not informed the Defendant in

writing in 1994 that he elected to trade through Kayak Centre Ltd and that thereafter in

2009 he did not inform the Defendant either orally or in writing that he would be

trading through Trinikayak Ltd, the Second Claimant. He admitted that he was not

confused as to what the Notice to Quit was about when he received it but said he

thought the Defendant was confused because Paddles Limited, the Third Claimant was

not the tenant. As it relates to the alleged Agreement for a lease to the larger parcel Mr.

See Tai’s evidence under cross-examination was that there was no agreement as to rent,

commencement date and development design. He further indicated that a Draft Lease

was never presented to him for a thirty year term.

[35] The main witness for the Defence Mrs. Jocelyn Hargreaves, when questioned as to

whether the single condition that remained to be fulfilled for Agreement to a lease was

in fact fulfilled because there were no rental arrears, said that she did not agree that

there were no rental arrears. A suggestion was put to Mrs. Hargreaves that the

Defendant had a standard form of lease since 2012, that could have been used if based

on the Board’s 2013 resolution finalization of a Draft Lease, was required to establish a

concluded Agreement for a Lease. She disagreed and said that from her knowledge in

the past all leases were different. Mrs. Hargreaves admitted that the December 17,

2014 Letter of Intent was issued without a supporting Board Resolution. She said it

was issued based on existing policy.

[36] By consent additional documents were entered into evidence through Mrs. Hargreaves

during her cross-examination. These included a Draft Model Lease dated 2012 entered

as Exhibit JH “48” and a Valuation Report, Exhibit “JH 46”, dated August 5, 2013.

The Valuation Report set monthly rental as at August 2013 at Fifteen Thousand, Five

Hundred and Ninety-four Dollars ($15,594.00) VAT exclusive.

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[37] Overall there was minimal variation between the parties in the factual accounts.

Factual variations that would have appeared from the pleadings were narrowed under

cross-examination.

[38] The differences that remained to be resolved related largely to the witnesses’ individual

interpretation from the events as to whether there were an Agreement for a lease or a

valid Notice to Quit. In these circumstances it is important to underscore that the

witnesses’ views were not determinative in most respects in this matter. The questions

whether there was an agreement for lease or a valid Notice to Quit are mainly matters

of law to be determined by the Court.

[39] Well researched written closing submissions presented by both sides in support of the

contending legal interpretations were of assistance to the Court in determining the

issues. The Claimants’ submissions also included certain arguments sounding more in

public than private law. These included submissions on whether: -

It was reasonable for the Defendant to have claimed for rental arrears as a

condition precedent before they would agree to a new lease of a larger parcel

of land, when according to the Claimants there were no arrears.

There was “a general disregard of the commendable contribution to the

development of the peninsular, the sport of kayaking and community outreach

achieved by the Claimants.

The Letter of Intent published without approval of the Board was “draconian”

and the Defendants treatment of the Claimants in general was unfair and

unreasonable.

[40] Those submissions, though worthy of ventilation, did not touch and concern the issues

for determination herein and do not form part of this decision.

Law and Analysis1:

Agreement for Lease:

[41] The main issue for determination is whether there was an Agreement for a lease made

between the parties. The Claimants initially relied on four documents in support of

1 The assistance of Judicial Research Assistant, Christie Borely - Attorney-at-Law in researching these issues is

acknowledged.

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their contention that there was an Agreement for lease. After the trial, a fifth document

was added so that the Claimants now say the Agreement for a lease is comprised as

follows:

The letter of 3rd

November, 2006 confirming rent to be paid for the leased

property established by the chartered valuators;

The draft lease dated 2007;

The Minutes of the Defendant’s 382nd

Statutory Meeting;

The letter of 19th

August, 2013 which stated that the Board had approved the

p;roposed lease for thirty years subject to payment of outstanding arrears; and

The Defendant’s 2012 pro forma master lease which was admitted into evidence

through the Defendants witness Mrs. J. Hargreaves.

[42] The Defendant has in evidence and submissions comprehensively refuted that any of

these documents either individually or viewed collectively comprise an Agreement for

a lease. As it relates to the first document, the letter dated November 3, 2006, the

Defendant points out that the contents reveal only a record of a valuation for purposes

of agreeing to what the rent should be for a three year lease. There was neither offer by

the Defendant nor agreement by the Claimants therein. The second document, the

Draft 2007 Lease was never executed because it was for a term of three years. It was

rejected by the Claimants and there is no evidence that the terms of that rejected draft

lease were later agreed to apply to the thirty year lease the Claimants now seek to

enforce. As to the third document, the Minutes of the 382nd

Meeting, those minutes

could not be taken as evidence of an agreement as the Claimants did not attend the

meeting and were not privy to the resolution. There was no communication. The

fourth document, the letter dated August 19, 2013 purported to communicate the

resolution to the Claimant but according to the Defendant the said letter proposed

conditions for agreement prior to finalizing the lease and those conditions were rejected

by the Claimants. Finally and belatedly, the Claimants in their closing submissions

further relied on a 2012 pro forma master lease as being one of the five documents to

be construed as containing the agreement for a lease. The Defendant’s correctly point

out that this addition presents a variation to the pleaded case that is being put forward

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without an Application to the Court to amend the Statement of Case. In any event the

Defendant submits that this document only came to the attention of the Claimants when

it was disclosed during the trial. It therefore could not have contained terms agreed to

by the Claimants and is not part of an agreement for a lease.

[43] The determination of this issue turns on the well-established principle of equity since

Walsh v Londsdale 1882 21 Ch. D 9: that an agreement for a lease is as good as a

lease. In applying this principle, a Court will not refrain from ordering specific

performance of an agreed lease. The governing legislation on enforceability of an

Agreement for a Lease is Section 3 Landlord and Tenant Ordinance Chap. 27 No.

16 which provides:

“No lease for a term exceeding three years or surrender of any land shall be valid

as a lease or surrender, unless the same shall be made by deed duly registered;

but any agreement in writing to let or surrender any land shall be valid and take

effect as an agreement to execute a lease or surrender, and the person who shall

be in the possession of the land in pursuance of any agreement to let may, from

payment of rent or other circumstances, be construed to be a tenant from year to

year.”

[44] An agreement is usually created by the process of offer and acceptance and, where this

is so, the law requires that there be an offer on ascertainable terms which receives an

unqualified acceptance from the person to whom it is made2. Hill and Redman’s Law

of Landlord and Tenant at paragraphs 450-460 states:

“An agreement for a lease is an ordinary contract, and in accordance with the

general principles of contract law it will not be binding on the parties until one is

able to identify an offer by the lessor to let, and an unconditional assent by the

lessee to take, the property to be demised or on certain terms.”3

[45] Where there is a lengthy course of negotiations between the parties, it may be difficult

to decide when they have reached agreement and have concluded a binding contract.

2 Halsbury’s Laws of England, Contract (Vol 22, 2012) para. 233

3 Hill and Redman’s Law of Landlord and Tenant, Issue 86, December 2012

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Despite the continuing negotiations, the court may be willing to find a concluded

bargain; and, if so, continuance of the negotiations thereafter will not itself terminate

that agreement, unless evincing a subsequent mutual intention to rescind that

agreement. Moreover, the court may be more willing to infer that the parties have

reached a binding contract where one party to the continuing negotiations renders

partial performance, even to the extent of giving retrospective effect in respect of that

partial performance4.

[46] In the present case there is no evidence of partial performance by the Claimants as they

were already in possession of the smaller portion of the land, the First Claimant having

held over after the 1993 lease had expired. Further, there is no evidence of acceptance

of an offer of a thirty year lease. Instead there is evidence that the Claimants rejected

offers made by the Defendant. As it relates to the second of the four documents, said to

comprise the agreement for a lease, namely the 2007 draft lease only a three year term

was offered. In answer to the valuator’s report and the 2007 draft lease, a letter was

written by the Claimants’ attorneys indicating disagreement with the terms of the lease.

The Claimants took issue with the term of the lease. There is further evidence that even

after July, 2013 when the Board of the Defendant had approved the Claimants’ request

for a thirty year lease; the Claimants rejected the terms proposed in the August 19,

2013 letter. They later also rejected the December 17, 2014 Letter of Intent sent by the

Defendant.

[47] The case of Walsh v Lonsdale established that the court does indeed have an equitable

jurisdiction to enforce an agreement for lease, provided that the parties have reached

agreement on all the essential terms. In order for there to be a binding agreement for

lease those said to have so agreed must at the least have identified who will be the

parties to the lease, the subject matter of the letting, the commencement and duration of

the term and the rent or other consideration to be paid5. These are the essential

elements of a lease that must have been agreed to for there to have been an Agreement

for a lease. As long as such necessary terms have not been agreed to, the matter rests

4 Halsbury’s Laws of England, Contract (Vol 22, 2012) para. 251

5 Hill and Redman’s Law of Landlord and Tenant, Issue 86, December 2012

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in negotiation and there is no concluded contract. The offer may be withdrawn at any

time, as long as it has not been accepted.

[48] In the present case, the 2007 draft lease relied on by the Claimants as comprising part

of the Agreement for a lease identified the parties, the subject matter of the letting, the

commencement and duration of the term and the rent. However, from the

correspondence shown by the Defendant, it is clear that the Claimants never agreed to

the duration of the term which was for three years and that there were continued

negotiations for the term to be expanded to thirty years. The duration of term being one

of the necessary terms, the Claimants’ disagreement to that term resulted not in an

Agreement for a lease but in continued negotiations. The absence of agreement on this

essential term coupled with the Claimants’ apparent rejection of the 2007 draft lease

evinces that there was never any concluded Agreement for lease of the land.

[49] After the failure of the parties to agree on the 2007 draft three year lease, negotiations

continued. Although it was eventually conditionally agreed that the lease would be for

thirty years other essential terms that were never agreed, based on the evidence before

the court, were the rental to be paid, the developmental design and the new

commencement date for the lease. The failure to agree to any of these terms is evident

from the Claimants’ rejection of the condition of payment of rental arrears in the

quantum proposed in the August 19, 2013 letter or a reduced sum that was

subsequently offered. The Claimants contention that there were no arrears whilst the

Defendant maintains that there were rental arrears is another clear indication that there

was no meeting of the minds between the parties and therefore no agreement as to rent.

Thereafter, the Claimants refused to agree to continued negotiations as proposed in the

Letter of Intent. In all the circumstances it is the finding of the Court that there was no

agreement for a lease.

[50] The Defendant cannot be said to be in breach of said Agreement by the withdrawal of

its Letter of Intent as an offer may be withdrawn at any time, as long as it has not been

accepted. Accordingly, the claim for specific performance fails as there is no

agreement to be enforced by the Court.

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[51] The Defendant in written submissions while contending that there was no agreement

for a lease also made an alternate submission. They contended that even if there had

been an agreement for a lease it was not enforceable. This was so because even if the

correspondence between the parties could have been construed as an agreement, the

correspondence showed that such an agreement was expressly made, subject not only

to a condition, namely the payment of rental arrears, but also subject to contract. The

Court further finds in favour of this submission. There could have been no enforceable

agreement because of these expressed reservations which make clear that there was no

‘concluded bargain’. The Law on this point is usefully summarized as follows:6

“In considering whether there is a binding agreement for lease arising out of correspondence

regard should be had to the following matters:

(a) The need to identify a correspondence between offer and acceptance;

(b) The existence of words negating contractual intention, such as 'subject to

contract';

(c) The fact that in respect of an agreement to grant a lease in excess of three years

no binding contract can arise by an exchange of offer and acceptance in

correspondence; and

(d) That where parties are proceeding directly towards the exchange of lease and

counterpart, without formal contract, there is a presumption that the parties are

proceeding 'subject to lease' and are not contractually bound until formal

exchange of lease and counterpart and so do not intend to be bound by

correspondence.” [Emphasis added]

The evidence of correspondence between the parties herein includes:

The Defendant’s June 23, 2013 letter which indicated that the thirty year lease would

be “subject to terms and conditions which will be articulated in another document”,

6 Hill and Redman's Law of Landlord and Tenant/Division A General Law/Chapter 2 Leases and agreements for

lease/A Agreement for lease/4 Requisites for agreement for lease at para [468]

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Reference in the Defendant’s August 19, 2013 letter to the need for attorneys to

“finalize the lease arrangements”; and

The Claimants statement in a March 7, 2014 letter that “we trust that your client will

make arrangements to expedite the preparation of a lease and have same sent to us

for review.”

This bears out the Defendants submission that on the evidence there was no agreement for a

lease and even if the Court had concluded that there was such agreement was expressly

subject to a condition and to contract. Accordingly, on this basis as well the Court would

hold that the Claim for Specific Performance fails.

Notice to Quit:

[52] The second issue to be determined is whether the Defendants issued a valid Notice to

Quit. There are two points of contention concerning the Notice to Quit.

The period of Notice given; and

The person whom it was addressed to and received by.

[53] As it relates to the period of Notice given there is a well-established principle of law

that where a tenant holds over after the termination of his lease, a periodic tenancy is

created based on the frequency of payment of rent. This point was discussed in the case

of Kanhai v. Gosine7 where McMillan JA stated the following:

“It is true that where at the end of a fixed term of letting a tenant holds over and

continues to pay rent a tenancy from year to year may arise. But it is essential to

the presumption of a yearly tenancy on the determination of a letting for a year or

term of years that the rent should be expressed as an annual sum. However, the

presumption may be rebutted and was so rebutted in Adler v. Blackman [1952] 2

All E.R. 945 where the rent was expressed to be payable as a weekly rent and not

as an instalment of the rent fixed for one year’s tenancy”.

7 TT 1988 CA 31

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[54] Further, the Court in Pantin v. Williams8 followed this learning where Warner J stated:

“While it is true that a tenancy from year to year arises by presumption of law,

when a person who has entered into possession holds over and pays rent with

reference to a yearly holding, the presumption is rebuttable. (See Hill and

Redman Seventh Edition page 44). It is essential to the presumption of a yearly

tenancy on the determination of a letting for a year or for a term of years, that

rent should be expressed as an annual sum; the presumption is rebutted where the

rent is expressed to be weekly and not as an instalment of the rent fixed for the

one year’s tenancy. This was the ratio in Adler v. Blackman [1952] 2 All E.R.

945.”

[55] When the 1993 lease is examined, the terms of that lease provide a month to month

tenancy for a period of twelve months. The lease, based on its termination clause, was

terminable by one month’s Notice from either party. In addition, the communication

from the Defendant to the Claimants regarding the Defendant’s credit policy in 1997

expressed that rents were to be paid on or before the first day of each month. Further,

letters written by the Claimants in negotiations for the thirty-year lease have expressed

the difficulties in acquiring finance for development with a month to month tenancy

(See the letter of 21st October, 2005 in Exhibit 5 of the Witness Statement of Joycelin

Hargreaves). This indicates an understanding by the parties that the tenancy was

monthly. The Claimants in fact pleaded in their Statement of Case that “on the

expiration of the first lease the Defendant permitted the First Claimant to continue to

occupy the original parcel without a written lease and accepted monthly rental fixed by

the first lease.” Therefore, following the principles of the cases outlined above, the

presumption of a yearly tenancy has been rebutted. When the First Claimant held over

on termination of the 1993 lease: what was created was not a yearly tenancy. It was a

monthly tenancy.

[56] A monthly or other periodic tenancy is determinable by Notice to Quit, which, in the

absence of special stipulations, should be given so as to expire at the end of any

8 1995 HC 46



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complete period of the tenancy, and should be at least equal to the length of the period,

that is to say, in a monthly tenancy a month's Notice9. Accordingly, in the present case

of a monthly tenancy, the tenancy is determinable by one months’ Notice and therefore

the period of Notice given in the Defendant’s Notice to Quit is valid.

[57] The second element of the Notice in dispute is to whom the Notice should have been

addressed. The Claimants case is that the Notice should not have been addressed to

Merryl See Tai, Paddles Limited but should instead have been addressed to Kayak

Centre Ltd or Trinikayak Ltd because those were the businesses actually operating at

the location at that time. According to the Claimants it was those two businesses and

not Paddles Limited that were the Tenants.

[58] According to Hill and Redman’s Law of Landlord and Tenant at paragraph 4446-

4447, a Notice to Quit must be reasonably clear and certain but will not be invalidated

by minor factual inconsistencies. The learned authors further state at paragraphs 4461

and 4447:

“The Notice need not be addressed to the intended recipient (be that landlord or

tenant) by name, provided it is properly served on him. An error as to the given

name of the tenant will not invalidate the Notice, again providing that the

tenant is not misled. A Notice addressed to the Directors of a Limited Company

may be a good Notice to the Company.”

“The form of Notice is immaterial, provided that it indicates, in substance and

with reasonable clearness and certainty, an intention on the part of the person

giving it to determine the existing tenancy at a certain time. Thus, the use of

language which is ambiguous and lame is immaterial, provided that the party to

whom it is given could not be misled as to the intention of the giver.”

[59] It is also clear in Law that a Notice to Quit may be given to the agent for the tenant:

“The Notice may be given by the agent of either party, provided he is duly

authorised for that purpose at the time of giving it. If he is not so authorised, a

9 Halsbury’s Laws of England, Landlord and Tenant (Vol 62, 2012) para. 234


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subsequent ratification of the Notice will not make it effectual, since the Notice

must be one which is, in fact, binding on the intended recipient when it is served.

Moreover, the intended recipient must have reason to believe that it is thus

binding, so that he may safely act on it. If the demise specifies the persons to

whom the Notice is to be given, its requirements must be complied with.”10

[60] According to Halsbury’s Laws of England:

“Notice may be validly given by being served on the tenant's agent or on the landlord's

agent. Where both parties stand by and allow others to deal on their behalf with the

tenancy, as, for example, by sending out demands for rent and accepting payment of

rent, a general agency may be created in these other persons so as to give them

authority to send and receive a notice determining the tenancy.”11

[61] In the case of Jumadeen v. HV Holdings Ltd,12

de la Bastide, JA referred to the

English case of McQuilkln v. Duprey [1963] 4 W.LR. 122 where the Notice to Quit

was delivered to a woman who appeared to be in charge of the premises and Mc Shine,

J quoted from Hill and Redman as follows:

"Where the lease or tenancy agreement was executed, or came into operation

after 1925, the Law of Property Act 1925, section 196 applies, unless a contrary

intentions appears in the lease or agreement. Apart from this provision the Notice

to Quit need not be served personally upon the tenant. If it is served upon his

agent it is unnecessary to prove that it actually came to his knowledge. It is

sufficient if the fact of the agency is established. The servant of the tenant at his

dwelling house, whether this is on or off the demised's premises, is his implied

agent to receive a Notice to Quit, though the tenant can give evidence to rebut the

implication. Apart from any question of agency, the fact that the Notice has been

10

Hill and Redman’s Law of Landlord and Tenant, Issue 86, December 2012 para. 5407 11

Halsbury’s Laws of England, Landlord and Tenant (Vol 62, 2012) para. 225 12

C.A.CIV.93/1988.

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delivered to the wife or servant of the tenant, raises a strong presumption that it

has reached him, especially if an explanation of the Notice was given when it was

delivered, and the presumption can only be rebutted by proof that the Notice did

not come to the knowledge of the tenant at all."

This position was adopted by Justice of Appeal de la Bastide, notwithstanding the

absence of a similar provision to that of section 196 of the LPA 1925 in Trinidad.

[62] The Claimants in this case contend that the payment of rents and the issuance of

receipts in the name of Trinikayak Ltd was evidence that the Defendant recognized

Trinikayak Ltd. as the tenant. However, the Defendant avers that it was its honest belief

that Merryl See Tai traded as Paddles Limited on the demised premises. This belief was

based on a letter sent by the First Claimant to the Defendant on July 12, 2010 where he

asked that the lease be “assigned from Merryl See Tai to Paddles Ltd.” It is also of

note that certain demands for rental rrears were made to Merryl See Tai using a

residential address, with no mention of the company name (Exhibit 2 of the Witness

Statement of Joycelin Hargreaves). The same Merryl See Tai was also at all times the

individual conducting business with the Defendant for all three Claimants. Merryl See

Tai is, in fact, the tenant named in the 1993 lease with no mention of a company name.

The Claimants’ contention that Kayak Centre Ltd was the tenant and that the Notice

should have been accordingly addressed is without merit. The Notice was correctly

addressed to the First Claimant.

[63] The question arises whether also naming the Third Claimant as the addressee affects

the certainty and clarity of the Notice to the First Claimant. On the evidence before the

Court and based on the principles of law considered it is my finding that it does not.

The l993 lease names the First Claimant alone as the tenant. It is clear that he played a

role in the administration of and was the effective representative of the three claimant

companies. Therefore even if there were merit in the contention that the Notice should

have been addressed to Kayak Centre and Trinikayak he could rightly be considered

the lawful agent of those entities when the Notice was received.

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[64] Mr. Merryl See-Tai who is the First Claimant and the principal of the Second and Third

Claimants was questioned in cross-examination as to whether he had been misled as to

who was the addressee named on the Notice to Quit or had any misunderstanding about

who the Defendant wanted to vacate the premises. From his responses I found as a fact

that he had not been misled and understood fully from the Notice to Quit that the

Defendant wanted him personally to remove his business operations from the premises

whether trading in the name of Kayak Centre Ltd, Trinikayak Ltd or Paddles Ltd and

also wanted the business operations of the said companies to vacate the premises.

[65] The Notice was validly served on Merryl See Tai as the tenant named in the 1993 lease

and as the agent and director of all the companies he operated there. The fact that only

one of those entities, Paddles Limited was named on the Notice along with the named

Merryl See Tai as the Addressee did not invalidate the Notice.

Conclusion:

[66] Having considered all the evidence, it is my finding that there was no agreement for a

lease between the parties as the terms of the lease remained in dispute and the

correspondence by the Claimants effectually rejected the Defendant’s offers. Therefore

there was no breach of an agreement for lease by the Defendant to warrant specific

performance of any contract for the larger parcel of land.

[67] With regard to the Notice to Quit the smaller parcel, the presumption of a yearly

tenancy after holding over has been rebutted by the express stipulation for monthly

payments. Therefore, the period of one months’ Notice issued was valid. Additionally,

the Notice was addressed to Merryl See Tai, Paddles Limited. Merryl See Tai was in

fact the tenant named in the 1993 lease so it was correctly addressed to the First

Claimant. In any event he was also the principal of Kayak Center Ltd and Trini Kayak

Ltd, the Second Claimant through which he was operating the same business on the

smaller parcel. The evidence before the Court is that the First Claimant never informed

the Defendant in writing that he would be trading as the Second Claimant. Or that his

tenancy was to be assigned to the Second Claimant. Addressing, the Notice to the First

Claimant and his receipt of it was valid service on those companies as well. The First

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Claimant had written a letter to the Defendant asking that the lease be assigned to the

Third Claimant. The inclusion of the Third Claimant, Paddles Ltd as the addressee in

the Notice did not invalidate it. The Notice to Quit was validly issued and the

Defendant is entitled to possession of the smaller parcel and to all other reliefs

including mesne profits and damages claimed in its counterclaim.

Disposition:

[68] The role played by the Claimants’ in national development by encouraging healthy

lifestyles, fitness and sporting prowess is to be admired. It is hoped that through

alternate channels a meeting of the minds can be arrived at so that in partnership with

the Defendant these lofty objectives can be pursued. Unfortunately on the issues

before the Court for determination the Claimant has not presented a sound basis for any

of the reliefs claimed.

[69] In the circumstances the Claimants’ case is dismissed and Judgment is awarded to the

Defendant on its counterclaim. Mesne profits as claimed in the Counterclaim are

awarded at a rate of Fifteen Thousand, Five Hundred and Ninety-four Dollars

($15,594.00) VAT exclusive from March 7, 2015 to the date of Judgment. Costs are

awarded to the Defendant to be agreed or assessed.

Eleanor J. Donaldson-Honeywell

Judge

Assisted by: Christie Borely

Attorney-at-Law

Judicial Research Assistant

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