Hennis v Ruan
| Jurisdiction | Anguilla |
| Judge | George-Creque, J. |
| Judgment Date | 19 July 2007 |
| Neutral Citation | AI 2007 HC 6 |
| Date | 19 July 2007 |
| Court | High Court (Saint Christopher, Nevis And Anguilla) |
| Docket Number | AXAHCV/2006/0087 |
High Court
Rawlins, J. A.
AXAHCV/2006/0087
Ms. Paulette Harrigan for the claimant
Ms. Keesha Webster for the defendant.
Property - Gift — Loan — Undue influence — Claimant was 72 years old and infirm — Whether the claimant was unduly influenced by the defendant — Whether the sum was a loan or a gift — Claimant never spoke to defendant about repaying the money — Defendant was not in a position of influence over claimant — Claimant was full of his mental capacity and did as he wanted to do — Court concluded that claimant gifted the monies to the defendant — Claim dismissed.
In this action the claimant seeks to recover from the defendant US$35,000.00 (“the Monies”) given to the defendant either by way of a gift or a loan, due allegedly to undue influence exerted by the defendant upon the claimant.
The background, in so far as these facts are not in dispute, may be summarized as follows:
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(a) The claimant (“AH”) at the time of the trial was 73 years of age. At the time of the transaction, he was 72. He suffers a physical disability due to a fall from a roof some ten or more years prior, whilst engaged as a construction worker in the US Virgin Islands. He requires a cane for walking and depends on his sister, Beatrice Hennis, to look after him. She helps him to bathe, dress, cooks for him and generally looks after his welfare. Mentally, he is alert and says he sees and hears well, understands everything around him; he thinks for himself and is capable of making his own decisions.
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(b) AH and the defendant (“LR”) knew each other for several years in the capacity of employer and employee when LR was about 16 years old and worked alongside his father who then worked for AH in the construction of a dock on AH's property at Sea Feathers in Anguilla. AH then called LR ‘Lester’ and LR called AH ‘Mr. Hennis’. They enjoyed a good working relationship.
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(c) After the building of the dock they lost contact with each other for several years as AH travelled and worked in the US Virgin Islands and later in St. Maarten before returning to Anguilla to live in 2001. When he returned he did not go back to Sea Feathers to live but went and continues to live at the Quarter in a small two-bedroom house in a yard close to the home of his sister Beatrice Hennis. This house has no kitchen or running water.
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(d) AH had planned to operate a shipyard business at his property in Sea Feathers but could no longer go through with that plan and made the decision to put his house and land at Sea Feathers on the market for sale. To this end he enlisted the assistance of his son Clive Gumbs (“Clive”) and engaged one Homer Richardson to market the property. He entered into a six-month exclusive listing agreement on 22nd June 2004, with Mr. Richardson, whereby the property in lots was listed for a total selling price of US 1.25 million. In any event, at the expiration of that agreement no purchaser had been found. AH continued his efforts, with the help of his son Clive, to find a buyer. He told his sister and his other children about his plans as well as others.
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(e) Around 2005, AH and LR re-established contact when LR started visiting him. They would chat about old times and their families. They became friends. LR by March or April 2006 would visit AH about three to four times a week. He told LR also about the property and his plans to sell and he told LR the price he was asking for it. AH also told LR that when he sold the property he would give him something but didn't tell him what the something was.
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(f) At times LR would take AH out to visit friends or do other errands as AH desired. On one occasion prior to the sale of the property LR also assisted AH in locating the boundaries of the property, and also spread the word among a few persons of the property being on the market. In any event, LR never found a buyer for the property.
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(g) With the assistance of his son Clive, a buyer was found in June 2006 at a price of US$1 million. Firstly, a deposit of $10,000.00 was paid and a few weeks later AH received the balance. Out of the deposit, AH gave his son Clive US$5,000.00. The balance was placed on account at National Bank of Anguilla.
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(h) LR's visits to AH continued and AH told LR that he had sold the property. About two weeks later on 12th July, 2006, LR drove AH to the Bank. LR did not accompany AH into the bank but AH, took with him LR's passport. There, he withdrew the sum of US$35,000.00 from his account, and caused a manager's cheque to be prepared to the order of LR (described by name as stated in LR's passport) in this sum, then left the bank and returned to LR's vehicle where he delivered the cheque to him. AH told LR not to tell anyone about it for fear of upsetting his family. AH told no one of the transaction. LR told his wife.
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(i) A few days later AH told LR to again take him to the bank as he wished to give some money to his lady friend. AH withdrew a further $4,000.00 and asked LR to contact his lady friend. His lady friend received this sum. AH did not tell his family about this sum either.
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(i) However, in September 2006, AH's family discovered the withdrawal of these funds from the account and made inquiries of him whereupon he confirmed the withdrawals and the recipients of the funds. He indicated that in respect of LR same was a loan which he felt pressured by LR to make. AH's son Clive demanded that LR return the money. Steps were also taken immediately on the discovery of the missing funds to appoint Clive as AH's attorney and the funds in the account placed under the attorney's control.
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(k) LR asserted and maintains that the sum was a voluntary gift made to him by AH and denies that he brought any pressure to bear, coerced or otherwise unduly influenced AH in any way into making such gift.
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(I) In November 2006, AH launched this action against LR.
The issues for determination may be simply stated thus:
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(a) Whether AH was unduly influenced in parting with the Monies in favour of LR.
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(b) If AH was not unduly influenced in any way, whether this sum represents a loan or a gift to LR.
AH gave evidence on his behalf and in addition his sister Beatrice Hennis, his niece Rosalind Hennis, and his son Clive also gave evidence. With respect to the defence, LR and his wife, Carolyn Ruan, gave evidence. I consider for the purposes of this case that the evidence of AH and LR to be the most critical bits of evidence to be evaluated in determining whether, as a matter of fact, LR unduly influenced AH in parting with the Monies in favour of LR. This in no way is to be understood as not having considered all of the evidence led in this trial by both sides. Indeed, the evidence of the other witnesses serves to place the matter into context and provides valuable backdrop information in respect of the surrounding circumstances before, at the time and after this transaction occurred. The burden of proof is on AH to establish that he was unduly influenced into parting with the Monies to LR. In Royal Bank of Scotland v. Etridge (AP) [2001] UKHL 44 (11 October 2001) Lord Nicholls of Birkenhead in giving his opinion on consolidated appeals to the House of Lords on which the issue of undue influence was raised, said at paragraph 13 of his opinion thus: ‘Whether a transaction was brought about by the exercise of undue influence is a question of fact …..the general principle is that he who asserts a wrong has been committed must prove it The burden of proving an allegation of undue influence rests upon the person who claims to have been wronged. ….. The evidence required to discharge the burden of proof depends on the nature of the alleged undue influence, the personality of the parties, their relationship, the extent to which the transaction cannot be readily accounted for by the ordinary motives of ordinary persons in that relationship and all the circumstances of the case.” At paragraph 14 he stated thus: “Proof that the complainant placed trust and confidence in the other party in relation to the management of the complainant's financial affairs, coupled with a transaction which calls for explanation will normally be sufficient, failing satisfactory evidence to the contrary, to discharge the burden of proof. On proof of these two matters the stage is set for the Court to infer that, in the absence of a satisfactory explanation, the transaction can only have been procured by undue influence.” At this stage then, the evidential burden shifts to the defendant by way of producing evidence to counter the inference which would otherwise be drawn.
AH in his witness statement and re affirmed in cross-examination said in essence that from in and about March or April 2006, when LR began making frequent visits, that he looked forward to his visits, valued LR's friendship and enjoyed his company. He said that they would talk about life in general and confided in each other only in respect of some matters. He did confide in LR that he was in the process of selling his land but said he did not ask LR for his help in selling the land because he had an agent for that purpose and further that LR was not the sort of person who he relied on for advice of that nature or in general. He also stated that he was not lonely as his family visited him regularly but he asked LR on a few occasions to take him somewhere for business purposes. His son was very active in marketing the property and found a buyer for over $1 million, though slightly less than the price he was asking. He gave his son $5,000.00 to show his appreciation for assisting him in the transaction. He told LR of the sale of the land in June 2006 for over $1 million. Then he had this to say: “Soon after telling the defendant that I had sold the land he started to ask me for US $35,000.00. He told me...
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