Carl De Freitas v R & R Investments Ltd
| Jurisdiction | St Vincent and the Grenadines |
| Judge | ‘Henry, J.’ |
| Judgment Date | 26 February 2018 |
| Judgment citation (vLex) | [2018] ECSC J0226-1 |
| Docket Number | SVGHCV2010/0138 |
| Date | 26 February 2018 |
| Court | High Court (Saint Vincent) |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
SVGHCV2010/0138
Mr. Emery Robertson Snr. and Ms. Samantha Robertson with Ms. Maia Eustace for the claimant.
Ms. Patina Knights for the defendant.
By Claim Form filed on 30 th April 2008 and amended subsequently 1, Mr. Carl De Freitas brought action against R & R Investments Ltd. (R & R) for the value of 22 steel sheet piles, damages and costs. Mr. De Freitas alleged that from about 1994, he kept the piles on land owned by him at Ratho Mill, Saint Vincent. He claimed that R & R bought the land from RBTT Caribbean
Bank Ltd. 2 in April 2006 and has converted the steel piles to its own use. He contended that in doing so R & R went onto his landMr. De Freitas alleged that he made several visits to the subject property and eventually spoke with Mr. Reginald Adams Snr., a director of R & R. He said that he made several attempts to remove the steel piles and to get access to the premises but was unsuccessful. He complained that R & R utilized the steel piles in the construction of a building. He seeks USD$121,550.00 as the replacement value.
R & R denied that Mr. De Freitas owned the land at the material times or kept anything on the lands at the time of the purchase. It contended that it bought the land and everything on it from RBTT Bank Caribbean Ltd. It acknowledged that Mr. De Freitas had asked Mr. Adams for steel sheets on the land but insisted that there were only about 5 such sheets.
R & R pleaded that Mr. Adams informed Mr. De Freitas that pieces of steel sheets were scattered around the property which he considered to be junk, and offered them to him on condition that he removed them expeditiously. It claimed that Mr. De Freitas did not collect them and when the site was being prepared they were therefore covered up, and used for foundation support. It denied Mr. De Freitas' claim. I have found that R & R is not liable to Mr. De Freitas.
The issues are:
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(1) Whether R & R Investments Ltd. converted to its use, 22 steel piles belonging to Carl De Freitas?
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(2) To what remedies is Carl De Freitas entitled?
Mr. De Freitas is a retired businessman. He bought the subject lands from P. H. Veira & Co. Ltd. in
1994. He testified that one of its directors, Mr. Phillip Veira, gave him 22 steel sheet piles which were already on the property under a flamboyant tree. He said that he did not know how long they were on the land, however he left them there. He indicated that the land was partially enclosed by a fence, but had no gate. He claimed that he subsequently made it more secure by putting a chain and lock on itMr. De Freitas embarked on a charter boat operation business from that location and reclaimed land from the sea as part of his endeavours. During this process, he engaged a bulldozer to push ‘stuff’ off the property into the sea and arranged for trucks to bring soil and more ‘stuff’ to dump on it. He eventually secured a loan from RBTT Bank Limited to further develop the business. He admitted that the repayment fell into arrears and in 1999 the bank notified him that they intended to sell the property.
Mr. De Freitas took no steps to remove the steel piles from the property at that time. He testified that he made arrangements to regularize his account with the bank, as a consequence of which he and the bank arrived at an understanding. He did not articulate what this ‘understanding’ entailed and provided no documentary evidence of the same. He remarked that the bank never advertised the property for sale; however, he erected a ‘For Sale’ sign.
Mr. De Freitas stated that sometime in 2005, someone went into the bank and offered $555,000.00 for the property which the bank refused. He claimed that he was not aware that the bank still intended to sell the property. He recalled seeing Reginald Adams Snr. on the subject lands sometime in 2006. Consequently, he inquired of the bank's loans manager and manager who both denied that they had authorized anyone to enter the property. It does not appear that Mr. De Freitas confronted Mr. Adams Snr. about the implied trespass. He made no such assertions.
Mr. De Freitas indicated that he was aware that the bank could sell the property if he breached the terms and conditions of the mortgage. He maintained that although he was in arrears in 1999 in 2005 he was satisfying them. In any event, he said that sometime after he saw Mr. Adams Snr. on the land, the bank's manager notified him by telephone that Mr. Adams had bought the property for $525,000.00.
Mr. De Freitas indicated that about a week later he went to the property where he met Mr. Adams, and informed him that he would send someone to pick up the sheet steel piles. He observed that they had by then been removed from under the flamboyant tree, placed more central on the land and were covered with fresh dirt. Mr. Reginald Adams refuted Mr. De Freitas' assertion that there is a flamboyant tree on the site or that one was there in 2006. Be that as it may, Mr. De Freitas contended that R & R has utilized the steel piles in its construction and is therefore liable to him for compensation for their replacement value.
His witness Mr. John Mc Kenzie testified that sometime in 2006 he went to Ratho Mill in a truck to pick up the steel piles on Mr. De Freitas' behalf. He could not say when exactly but he remembered seeing them stacked under a tree at the place called ‘Point’ on a previous occasion. He did not count them he said, so he could not say how many there were. He explained that when he got there around 2.00 p.m. the place was locked and there was a chain across the entrance. He said he came out of the truck but did not try to go under the chain because that would have been considered entering onto private property. He indicated that he knew that the property belonged to Mr. Adams.
Mr. Mc Kenzie recalled seeing Mr. Reginald Adams Jnr. a couple of weeks later and telling him that he had come to pick up the steel piles for Mr. Carl. He said that he got no definite reply from Mr. Adams. He stated that after his conversation with Mr. Adams, he returned to the location at ‘Point’ with Mr. De Freitas and they took pictures. It is not clear whether this took place in 2006 or sometime later. No such pictures were adduced.
Mr. Mc Kenzie stated that on that occasion he remembered seeing the steel sheet piles in an upright position next to where the concrete walls to the building were being casted. Under cross-examination he changed that part of his testimony and stated that the steel piles were lying on the ground under the tree and they appeared to be rusted. He then testified that some were upright and some were lying down. He insisted that this is what he saw on both occasions when he went to the site. He conceded that his memory would have been better when he provided the witness statement in 2010.
Mr. Mc Kenzie said that the steel piles were very heavy and could not be lifted by him and Mr. De Freitas. He estimated that it would take about 4 persons to lift one steel pile. He indicated that they would have obtained help if necessary. He testified that the truck had a lift or hoist which was capable of lifting up weight of about a ton. He explained that the tray is lowered to the ground to facilitate the loading of items into the truck but that one would have to take the item over to the truck and deposit it onto the tray for lifting.
Mr. Reginald Adams provided testimony on R & R's behalf. He indicated that his father Reginald E. Adams is also a director of R & R. According to him, the company bought the subject land from RBTT Bank Caribbean Limited in 2006. He testified that the land had lots of ‘stuff’ on it, such as rubble, an old truck chassis, old bent-up steel rods of varying sizes, heaps of debris, dirt and about 5 old rusted sheet piles scattered among the rubble. He characterized it as being like a dump site' with the rubble covering an area of about the first fifty feet at the entrance of the property.
He recalled that R & R was ready to commence work about 1 month after Mr. De Freitas was told that he could have the steel piles. He testified that within 6 weeks of purchasing the property, the company began bulldozing the land, doing earthworks and dumped materials on it which they purchased for that purpose. Under cross-examination he admitted that the preparation of the construction site commenced in August 2007. He indicated that the construction lasted about 3 to 4 years and that work is ongoing. He said that once work started it continued every day except Sunday, and someone was always present.
He said that during preparation of the site for construction they encountered pieces of steel rooted in the soil. He explained that they were so firmly encased that they secured the services of Winston Sandy to cut them. He indicated that as the steel piles were cut away they were rolled back into the foundation.
Mr. Adams explained that there were toilets and other items on the site. He said that he considered them to be garbage. He could not remember how many toilets or steel piles were met on the site. He recalled counting a lot of steel beams and around 10 or 11 toilets. He recalled that the steel piles were all tossed around and stuck into the soil. He remarked however that if they were any good they would have kept them.
Mr. Adams claimed that he did not know to whom the 5 steel piles on the land belonged and he made no inquires. Under cross-examination he said that they were on top of the soil when the land was purchased. At one point he said that they were embedded in the soil. He...
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