Foster v Gajadhar

JurisdictionSt Lucia
JudgeCecil Lewis J.A.,Lewis, C.J.,Davis J.A.
Judgment Date06 May 1971
Neutral CitationLC 1971 CA 9
Docket NumberCivil Appeal No. 5 of 1971
CourtCourt of Appeal (Saint Lucia)
Date06 May 1971

Court of Appeal

Lewis, C.J.; Lewis, J.A.; Davis, J.A. (Ag.)

Civil Appeal No. 5 of 1971

Foster
and
Gajadhar
Appearances:

Appellant in person.

Respondent in person.

Legal profession - Liability

Facts: Appeal from an order in the matter of an investigation of a complaint made by the respondent under section 19 of the Legal Practitioner's Ordinance, Cap. 116. The appellant acted as solicitor for the respondent in a transaction involving purchase of property. He also acted as solicitor for the vendor. The appellant made certain payments to the vendor out of a sum borrowed by the respondent to which the respondent did not consent. The appellant never completed the transaction and the property was sold to some one else. The issue was whether the appellant had the necessary authority to do so

Held: In the circumstances the money was unlawfully though not fraudulently withheld from the respondent by the appellant and an order was properly made under section 19 of the Ordinance for its return. Appeal dismissed. Order made that the sum due to the respondent be paid into the respondent's loan account at the bank.

Cecil Lewis J.A.
1

This is an appeal from an order of Bishop J. dated September 19, 1970, in the matter of an investigation of a complaint made by the respondent under section 19 of the Legal Practitioners Ordinance, Cap, 116 of Saint Lucia. The complaint was made against the appellant who is a barrister-at-law and notary royal practising in Saint Lucia.

2

It appears that some time in February, 1967, the respondent employed the appellant in his capacity as a solicitor to purchase certain property for him at Marchand from a man named Pierre Soudatt. The appellant also acted as Soudatt's solicitor in the transaction.

3

The respondent obtained a loan of $7,000 from the Bank of Nova Scotia to finance the purchase, and from this amount he authorised the sum of $6,922 to be paid into the appellant's “Clients” account to be held on behalf of the respondent and to be paid out when the transaction of sale between Soudatt and the respondent was completed. The appellant admits that this amount was paid into his account.

4

For reasons which I will state hereafter the transaction between Soudatt and the respondent was never completed and Soudatt subsequently sold the property to someone else. Although this transaction did not take effect certain payments were made by the appellant to Soudatt out of the sum $6, 922 without the respondent's consent, and the question which now arises is whether the appellant had the necessary authority to do so.

5

Four payments were made. A sum of $500 was paid to the Co-Operative Bank on 27th May for the account of Soudatt who owed the bank $5000 on the property which he proposed to sell to the respondent. There was a mortgage on the property for this amount which was not discovered until some two or three months after the money had been paid into the appellant's account. Soudatt himself was paid $900 personally by cheque on March 16 th, 1967, $70 on 28 th February, 1967, also by cheque, and a further sum of $100 by cheque in August, 1967 – a total of $2,280.00.

6

The appellant has contended that he had authority to pay these amounts to Soudatt because as soon as the money was paid by the Bank of Nova Scotia into his Clients' account it became Soudatt's property by reason of the contract entered into between the respondent and Soudatt, and consequently he was under no obligation in law to obtain the respondent's authority or permission to make the said payments. He cited section 1382 of the Civil Code as authority for this submission but this section lends no support to his contention. It seems to me that, looking at this question purely as a matter of common sense where money is paid in to a solicitor's Clients' account and he holds it in that account, and the client arranges with another person to purchase property from him with that money, the money could not possibly become the property of the proposed vendor until the contract between the parties has been completed. Here it was necessary before the money could legally be paid over to Soudatt, that the transaction between himself and the respondent should have been completed. Soudatt was under an obligation to give the respondent a proper title to the land which he undertook to sell to him, and that he was not able to do and the transaction fell through.

7

In my opinion the appellant held the money in his account as trustee for the respondent to be used for the specific purpose of purchasing the land from Soudatt, and it could be paid over to the latter only when the transaction for sale had been finalised. I am therefore of the opinion that the four payments by the appellant to Soudatt were entirely unauthorised and have to be repaid to the respondent.

8

The appellant says that he has made substantial repayments to the respondent which must be taken into account. He says he made a payment of $950 to the respondent himself. The respondent admits this payment and accordingly this item is not in issue. Further he contends that sums amounting in the aggregate to $4,900 were paid by him into the respondent's loan account at the Bank of Nova Scotia. The respondent has admitted payments amounting to $3, 700, but at the enquiry he did not accept that a further sum of $1,200 had been paid into his account although the appellant had informed him to this effect. However at the hearing of the appeal this morning the respondent agreed that if further evidence could be produced from the bank that the sum of $1,200 had been paid into his account he would be prepared to accept this. The appellant made an application to the court to produce further evidence and this was not opposed by the respondent. The court accordingly granted the application and evidence was...

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