Raymond v Doxilly

JurisdictionSt Lucia
JudgeLewis C.J.,Cecil Lewis, J.A.,Louisy, J.A.
Judgment Date09 September 1971
Neutral CitationLC 1971 CA 15
Docket NumberCivil Appeal No. 4 of 1971
CourtCourt of Appeal (Saint Lucia)
Date09 September 1971

Court of Appeal

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

Civil Appeal No. 4 of 1971

Raymond
and
Doxilly
Appearances:

K. Foster for the appellant.

Respondent in person.

Legal profession - Barrister and solicitor — Charge of misappropriation of client's funds — Charge not proved.

Legal profession - Attorney at law — Whether he dishonestly appropriated funds belonging to the appellant — Court found that the claim was not proved.

JUDGMENT OF THE COURT
1

(delivered by Lewis C.J.): The respondent is an agriculturist and also a real estate dealer. The appellant is a barrister at law, solicitor and notary royal: he appeals against a judgment of Renwick, J. (Ag.) ordering him to pay to the respondent $4,745.10 and costs.

2

By deed of sale dated 10th Mays 1969, the respondent purchased twelve and four-fifths acres of land at Morne La Blanc in the quarter of Laborie from the witness Patterson St. Rose for $6,500. He mortgaged it with the Royal Bank of Canada to secure a loan of $3,500 with interest at 8 1/2 per annum. He said that he was unable to pay off the debt and on 23rd August, 1969 he sold one carre (about three and one-fifths acres) of the land for $5,000 to one Michael Chastanet. The deed of sale was made by the appellant in his quality of notary.

3

The respondent said that he authorised the appellant to receive the purchase money from Chastanet and out of it to pay off the bank and have the mortgage radiated. In his evidence in chief he stated that Chastanet paid the purchase price to the appellant. In cross-examination he said that when he signed the deed Chastanet was not present and that St. Rose handed a cheque to the appellant in his presence. On the following Monday, 25th August, he returned to the appellant's office and the appellant's clerk handed him two receipts for a total $254.90 paid to the Royal Bank of Canada in respect of the loan. On Tuesday 26th he met the appellant at his office. He asked him why he had not paid off the bank in full and the appellant said that he would have time to pay it, so he asked him for the rest of the money. The appellant could give him no account. Subsequently, in order to pay the mortgage debt he sold the balance of the land to Chastanet. He has asked the appellant for the balance of his money but has never received from him either money or a statement of account. Accordingly he brought his action for $4,745.10 and interest at 8 1/2%, thus giving the appellant credit for $254.90 paid to the Bank. He denied having told one Smith that the appellant owed him no money and that he wished to squeeze him because he stood in his way in respect of another land transaction at Laborie. He admitted paying St. Rose $1400 as commission in respect of the two sales to Chastanet.

4

Michael Chastanet gave evidence on his behalf: he said that he paid for the land, $5,000, by cheque drawn on the Bank of Nova Scotia made payable to St. Rose to whom he handed it. He could not now find the cancelled cheque.

5

The appellant stated in evidence that he was instructed to prepare the deed of sale and did so. The respondent read the deed, signed it and left with Patterson St. Rose. Later the respondent returned to his office and he told him that he had arranged with the Bank for a partial radiation of the mortgage. This is an arrangement by which a mortgagee receives a payment on account and discharges the portion of land sold from the mortgage. He asked the respondent whether he had received the purchase money and he said that he had. He said that the purchase money was not paid through his office nor was it paid to him or in his presence. He received no instructions to pay off the bank, nor did he give his clerk instructions to pay any money to the bank. On the following Tuesday, when he again mentioned a partial radiation, the respondent told him it was all right, he was going to sell the whole land to Chastanet and the mortgage would then be radiated. He registered the deed on the following day, 27th August.

6

Robert Smith and Henry Bonnett gave evidence to the effect that the respondent had told them that the appellant owed him no money; he had sued him by way of revenge because the appellant had prevented him from obtaining another portion of land. The learned judge found that he could not place any reliance on these two witnesses.

7

Patterson St. Rose, an important defence witness, said that he was almost caretaker of the land for Chastanet. Chastanet issued a cheque in his favour for $5,000. He cashed it and took the money to the appellant's office where he handed it to the respondent. The appellant was in his office at the time. There were other people in the office. He remained a while, then went home, leaving the parties in the office. He denied that he had taken the cheque to the appellant's office.

8

The learned judge in giving judgment for the respondent said:

“I find the conduct of the plaintiff and his genuine concern for the fact that the Hypothecary Obligation had not been radiated to be explicable only on the ground that he had instructed the defendant so to do; this is borne out further by the conduct of the defendant in registering the Deed of Sale well knowing that the Hypothecary Obligation was still in force.”

9

The judge therefore based his judgment not on the credibility of the evidence of the parties and of the vital witness St. Rose, but on an inference drawn from the conduct of the parties. He made no express finding on the crucial issue in the case, namely, whether the appellant had in fact received the purchase money from Chastanet or from St. Rose. This omission was stressed by learned counsel for the appellant, who also drew the court's attention to the fact that receipt of the purchase money by the appellant had not been averred in the statement of claim. Learned counsel also submitted that the respondent's evidence as to the receipt by the respondent of the purchase money was not clear and forthright.

10

The respondent submitted to this court that he had instructed the appellant to receive the purchase money, and that it was his duty to do so and to see to the discharge of the mortgage. It was not open to the appellant to say that someone else had drawn the money. He ought to have registered the deed of sale until the mortgage had been radiated. Further, that the appellant should have summoned his clerk as a witness to deny that the sum of $254.90 paid to the bank was not paid by the appellant or on his instructions.

11

I do not find the reasons relied on by the learned judge convincing, The question at issue was not whether the respondent had instructed the appellant to radiate the mortgage but whether the purchase price had in fact come into the appellant's hands. The appellant has given a reasonable explanation for his failure to insist on at least a partial radiation of the mortgage before registering the deed of sale, about which the judge has made no comment.

12

The accusation made against the appellant in this case is of the utmost gravity. It is in effect that he has dishonestly appropriated a sum of $4,745.10 received by him as solicitor for the respondent. While the standard of proof required to prove a criminal offence in civil proceedings is not as high as in criminal proceedings and is the same as in other civil proceedings, viz., proof on the balance of probabilities, yet the gravity of the issue is a circumstance which the court has to take into consideration in deciding whether the burden of proof has been discharged. The allegation in the present case is a most serious one, which, if proved, must involve consequences affecting the appellant's future as a legal practitioner. The degree of probability required for its proof must therefore be very high.

13

In my view the evidence in the case fails to reach this standard. The respondent's evidence contains inconsistencies as to the manner in which and the person by whom the alleged payment to the appellant was made. With respect to the payment of $254.90 to the Royal Bank, he says that the appellant's clerk handed the receipts to him on Monday 25th August, but the receipts bear date 27th August, that is the day after his alleged conversation with the appellant, when he says the appellant was unable to account to him for the money. There is a conflict of evidence between himself and St. Rose as to whether Chastanet's cheque ever reached the appellant's hands, St. Rose stating categorically that he cashed the cheque and paid over the cash to the respondent. The respondent could offer the court no explanation as to why the cheque was made payable to St. Rose and not to the appellant. If St. Rose handed the cheque to the respondent common practice suggests that it would have been endorsed in his favour: whether this was done cannot be ascertained as the cancelled cheque was not put in evidence.

14

All this is significant in view of the special relationship that appears to have existed between the respondent and St. Rose. The documents purport to show that St. Rose sold the land to the respondent in May. Yet some three months later he arranges a sale by the respondent to Chastanet on a commission basis, and the cheque for the purchase money is made out in his favour. Where does the truth lie as between these two persons as to the disposition of this cheque? The judge has made no finding.

15

In my opinion the respondent has not established his case on the balance of probabilities. There is a real doubt as to whether the appellant received the money from St. Rose.

16

I would allow the appeal, set aside the judgment of the court below and order that judgment be entered for the appellant with costs here and in the court below, to be taxed.

Cecil Lewis, J.A.
17

The appellant is a solicitor and Notary Royal practising in St. Lucia. The respondent is described in his declaration as an agriculturist, and in...

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