Sale of C-Island Hotel was not fraudulent – Judge rules

-orders that title be passed in three months

The C-Island Hotel
The C-Island Hotel

High Court Judge Sandra Kurtzious on Friday handed down a ruling that the sale of C-Island Hotel located at Lot 46 High and Princes streets, Georgetown was not fraudulent and that the buyer, Marlus Hendricks, is fully entitled to it as the new legal owner and that title is to be passed within the next three months.

Additionally, the Judge awarded costs to Hendricks (the Appli-cant) in the sum of $150,000

Back in March of 2020, Hendricks filed the action against previous owner of the property, Antoine Charles.

Owing to Charles’ death, however, the action graduated to representatives of his estate—his sons —Royon and Kenwin Charles.   

The case before the court disclosed that an agreement of sale between the elder Charles and Hendricks was entered into on July 17th, 2019, for the sale of the property at a value of $50,000,000 which Hendricks said he paid.

He complained, however, that despite repeated requests, Charles never conveyed the property to him.

Charles’ sons on the other hand, sought to dispute that any such transaction ever took place between their father and Hendricks; advancing that the agreement “excites suspicion.”

Their argument was that their father was a very shrewd businessman who never conducted business without disclosing the details and circumstances to them.

Against that background, they sought to argue that the agreement was fraudulently and deceitfully executed by Hendricks, as the signature on it was not the father’s; and that it was strange that it bore no revenue stamp equivalent to the value of the alleged purchase price.

They also disputed that the sum of $50,000,000 was ever paid to their father.

The Charles brothers said, also, that the agreement did not cater for a deposit nor a balance at the passing of transport and that there was also no clause related to the period in which the transport would have been passed from their father to Hendricks. 

According to them, the agreement also did not adequately describe the property and made no reference to the transport which was attached to the said property.

In a bid to prove their respective cases, the Charles brothers and Hendricks called handwriting experts to the stand— former Detective Chief Inspector of Police, Carlton Charles for the brothers—and Corporal Ameer Mohamed and Sergeant Orlan Alleyne, testified on behalf of Hendricks.

According to court documents, Mohamed, after an examination of the agreement of sale, transport, Guyana and St. Lucian Passports belonging to the deceased, and other documents, said it was found that that “all of the signatures on the documents” were written/signed by the same person.

The findings by Carlton Charles, however, after examining the said documents was that the signature on the agreement of sale, “was of vast difference,” when compared against the specimen signatures.

In determining whether Hendricks committed a fraud in the document he purported to have executed with the now-deceased Charles, Justice Kurtzious noted that regard had to be paid to Section 3 (d) (iv) of the Civil Law Act which states that “no action shall be brought whereby to charge anyone upon…..any declaration, creation or assignment of any trust relating to immovable property, unless the agreement or some memorandum or note thereof is in writing and signed by the party to be charged or some other person thereunto by him lawfully authorized.”

She said that the evidence of Hendricks, under cross-examination was that he and Charles became acquainted approximately six months prior to the execution of the agreement of sale, and they became close friends.

The court had heard that the agreement was prepared and executed the night before the visit was made to the Commissioner of Oaths, at which time Hendricks paid $50,000,000 cash to Charles and that it was he (Charles) who prepared the agreement of sale.

Hendricks said that at that he was unaware that there was a mortgage on the property; but after learning thereof, confronted Charles who told him that “he would take care of it.”

The judge noted the argument of the sons that the document purporting to be an agreement of sale, lacked the requirements to ground a claim for specific performance, since several pieces of information pertinent to creating a binding contract were missing.

Justice Kurtzious said she found, however, that they carried the names of the vendor and purchaser, the description of the property to be sold, the date of the agreement, the purchase price and the terms of payment.

She noted that it was also endorsed by two witnesses.

“The Court is therefore of the opinion that the document constituted a sufficient memorandum in writing,” the judge declared.

Considering the argument of the brothers regarding the fact that the agreement of sale lacked some information pertinent to a contract for the sale and purchase of a property, the judge in deference to a number of case law authorities quoted from one that “the alleged acts of part performance had to be considered in their surrounding circumstances, and, if they pointed on a balance of probabilities to some contract between the parties and either showed the nature of, or were consistent with the oral agreement alleged, then there was sufficient part performance of the agreement.”

The judge noted that Hendricks was adamant that he has performed under the contract, by virtue of the payment of the total sale price of $50,000,000 and that despite repeated requests by him for the Charles to convey title, this was never done. He contended that he was therefore entitled to the conveyance of the property to him by Charles’ sons.

As regards having proof of payment of the purchase price, Hendricks said that when he requested a receipt, he was advised by Charles that the agreement of sale represented the receipt for the paid sum.

The judge referenced case law precedent that a plaintiff seeking an order for specific performance of an agreement for the sale of immovable property, is not required to disclose in his statement of claim that the action is maintainable—in that the agreement was in writing—or that there was some memorandum in writing evidencing the agreement, so as to satisfy the Statute of Frauds

The court said that while the brothers are disputing that any payment was made, they are only relying on their contention that their deceased father would have informed them of the transaction, as he usually discussed all of his business dealings with them, and that the signature on the contract was not that of the deceased.

Justice Kurtzious said that in considering the evidence adduced by all parties, she found that the evidence of the handwriting experts was divided on whether the various signatures of Antoine Joseph Charles were his, even as she noted the acknowledgement by the expert retained by the brothers, “that not always would the expert be able to conclusively determine that the signature examined was indeed the signature of the person.”

The judge said that from the naked eyes, however, she accepts Hendricks’ evidence that the signature on the agreement of sale was indeed that of Charles.

“Consequently, there is no fraud committed by the Claimant (Hendricks) as contended by the Respondents, whose allegation of fraud, is premised solely on the execution of the agreement of sale,” the judge said.

Justice Kurtzious said that she was also persuaded by Hendricks’ evidence that the total purchase price of 50,000,000 was indeed paid; though she said one wonders about the risk taken and the degree of confidence entrusted by Hendricks in Charles.

The judge pointed out, however, that it is not unheard of that businessmen would sometimes conduct their negotiations with cash in preference to a Banker’s Cheque; while underscoring that Hendricks did also state that he was assured the agreement of sale represented the receipt, confirming the payment.

The judge said in her ruling that despite Hendricks’ delay in seeking to have Charles  perform under the contract, the circumstances surrounding the execution of the contract, and the process which ought to have been taken, such as the liquidating of the mortgage, so as to remove the encumbrance in readiness for passing of title, as well as Hendricks’ contention that he repeatedly requested of Charles to carry out his obligations, she was satisfied that he (Hendricks) sufficiently performed under the contract.

Consequently, the Court ordered that Charles’ sons do specifically perform the contract entered into between Hendricks and their father, dated July 17th, 2019, so as to convey the property to Hendricks.

She ordered that the conveyance be passed to Hendricks within the next three months and that failure of the Respondents to so ensure, will then result in the Registrar of Deeds or her duly authorized officer, causing title to be passed.

Hendricks was further awarded costs in the sum of $150,000.

Hendricks was represented by attorneys Lance Ferreira, Gwendoline Bristol and Clevaun Humphrey.

Meanwhile the Charles brothers were represented by attorneys Nigel Hughes, Rexford Jackson and Jed Vasconcellos.