Hermus Cyrus v Christopher Wyllie
| Jurisdiction | St Vincent and the Grenadines |
| Judge | THOM, J |
| Judgment Date | 07 February 2012 |
| Judgment citation (vLex) | [2012] ECSC J0207-1 |
| Court | High Court (Saint Vincent) |
| Docket Number | HIGH COURT CIVIL CLAIM NO. 232 OF 2008 |
| Date | 07 February 2012 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
HIGH COURT CIVIL CLAIM NO. 232 OF 2008
Mr. Cyrus and Mr. Wyllie are relatives and over the years they have had a very close relationship. Mr. Cyrus lived and worked in the United States for many years. During this period when Mr. Wyllie visited the United States he would visit Mr. Cyrus.
This close relationship was fractured when during the period 2005-2007 Mr. Cyrus resided at the home of Mr. Wyllie while he was constructing his retirement home at Prospect. Mr. Cyrus alleges that during this period he loaned a sum of $35,280.31 to Mr. Wyllie to pay customs duties which Mr. Wyllie owed the Government of St. Vincent and the Grenadines. After several demands Mr. Wyllie repaid him $20,000 in two payments of $10,000 each. However Mr. Wyllie has failed to pay him the remaining $15,280.31 despite several demands that Mr. Wyllie must repay the said sum.
Mr. Cyrus instituted these proceedings in which he claims the said sum of $15,280.31. He also claims interest on the said sum at the rate of 12% per annum and costs.
Mr. Wyllie in his defence denies that he was given a loan of $35,280.31 by Mr. Cyrus. He alleges that the sum was an advance. Mr. Cyrus had requested him to assist him with a number of projects such as the acquisition of a property at Campden Park, construction of a retaining wall and repairs to the said property, construction of retaining walls at the site of the retirement home at Prospect and the construction of the retirement home. Himself and Mr. Cyrus had agreed that on the completion of the retirement home they would agree on a lump sum to be paid to Mr. Wyllie.
In the counterclaim Mr. Wyllie claims the sum of $239,555.73 as being the sum owed to him by Mr. Cyrus for work done, his time, and storage fees. He also claims general damages and prescribed costs.
Mr. Cyrus gave evidence and called one witness Mr. Alstar Mars. Mr. Wyllie gave evidence and called three witnesses being Mr. Cenus Hinds, Mr. Ellis Grecia, and Mr. Kenvert Velox.
The evidence of Mr. Cyrus is that he spent several years in the United States of America where he worked as a maintenance man. After retirement he decided to build a house in Prospect. During the period of the construction of the house between November 2005 and July 2007 he resided at Mr. Wyllie's residence.
In December 2005 Mr. Wyllie requested him to loan him the sum of $35,280.31 to pay customs duties. Mr. Wyllie agreed to repay him the money the following month. Mr. Cyrus paid the sum of $35,280.31 to the Accountant General by two cheques, the first dated the 6th December 2005 in the sum of $18,538.38 and the second on the 28th December 2005 in the sum of $16,741.73. Both cheques were exhibited.
Mr. Wyllie having failed to repay the money several demands were made to him. In March 2007 he paid Mr. Cyrus $10,000 and approximately six weeks later he paid him a further $10,000, leaving a balance of $15,280.31. Mr. Cyrus made several other demands for the payment of the outstanding sum and Mr. Wyllie having failed to pay same, Mr. Cyrus caused his solicitor to make a written demand for the outstanding sum by letter dated 6th May 2008. Inspite of the letter the sum still remained unpaid and the claim was instituted to recover the said sum of $15,280.31.
Prior to Mr. Cyrus' return to Saint Vincent in 2005, the Saint Vincent Building and Loan's Association decided to foreclose on a mortgage on the house of Mr. Cyrus' sister. Mr. Cyrus agreed to purchase the house. To facilitate the purchase of the house he executed a Power of Attorney in favour of Mr. Wyllie. He sent a cheque to Mr. Wyllie for him to pay the Building and Loans Association, and Mr. Wyllie executed the transfer documents on his behalf. There was no agreement between himself and Mr. Wyllie for Mr. Wyllie to be paid an agreed fee for the transaction.
A few months after he purchased the property he visited Saint Vincent and the Grenadines. He requested Mr. Wyllie to arrange the building of a retaining wall at the property in Campden Park. He gave Mr. Wyllie US$5,000 for the purchase of material and labour. He also sent US$3,000 to Mr. Wyllie for him to arrange the construction of a retaining wall at the property at Prospect. The wall was not completed when he visited Saint Vincent and the Grenadines and he engaged some men from the village of Troumaca who completed the wall in one week.
On the recommendation of Mr. Wyllie he entered into a contract with Mr. Cenus Hinds for him to construct his retirement home. Mr. Cenus Hinds did not complete the construction of the home. During the construction of his home on some occasions Mr. Wyllie's truck was used to transport material to the site. On those occasions, he paid the driver and he also provided the fuel for the truck.
His household belongings which were shipped to Saint Vincent were stored at Mr. Wyllie's residence until he moved to his home at Prospect. He had decided to store his belongings at his own property at Campden Park but Mr. Wyllie suggested that he use his store room since he did not need the space and he did not think it was safe to store the items at Campden Park. There was no agreement to pay for storage of his belongings. When Mr. Wyllie was operating his cold storage business he permitted Mr. Wyllie to store material at his property at New Montrose. Also on several occasions, he would purchase items for Mr. Wyllie in the United States and ship them to Mr. Wyllie.
During the period he stayed at Mr. Wyllie's residence, Mr. Wyllie assured him he did not have to pay for accommodation. He purchased food for the household and his wife who was still residing in the United States posted food for the household.
Under cross-examination Mr. Cyrus agreed that some of his household belongings were transported from the port to Mr. Wyllie's residence in Mr. Wyllie's truck. He testified that Mr. Wyllie never sent him an invoice or told him that he had incurred expenses in supervising his work. On the few occasions that Mr. Wyllie's secretary did some typing for him no fees were requested.
Mr. Cyrus witness, Alstar Mars who knows both Mr. Cyrus and Mr. Wyllie very well since they grew up in Troumaca confirmed that Mr. Wyllie told him in the presence of Mr. Cyrus while they were at his shop that Mr. Cyrus wanted to store his household items at Campden Park but he offered to store them for him at his residence free of charge.
Mr. Wyllie stated that Mr. Cyrus told him of his plans to retire and return to Saint Vincent and the Grenadines. Mr. Cyrus requested him to supervise the building of a retaining wall and clearing of the land at Prospect where he was going to build his retirement home. He told Mr. Cyrus that he would not set a specific fee for his work but he could use his discretion. He understood that Mr. Cyrus would pay him reasonable compensation. The wall took two months to construct. A reasonable fee for his supervisory services would be$1,000 per week but he was only claiming $2,400. He used his truck to transport material and water to the site which amounted to a cost of $11,250 but he was only claiming $5,000.
Mr. Wyllie testified that he also supervised the construction...
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