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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV2012-04737

BETWEEN

ANDY WONG KEE

Claimant/Ancillary Defendant

AND

GARY OBLINGTON Defendant

(Administrator of the Estate of Oliver Oblington (Deceased) limited to the purpose of this Claim)

AND

DAVE WONG KEE

1st Ancillary Claimant

AND

JOANNE HUNTE

2nd Ancillary Claimant

BEFORE THE HONOURABLE MADAME JUSTICE JOAN CHARLES

Appearances:

Claimant/Ancillary Defendant: Mr. Colin Selvon

Defendant: Appeared as himself

Ancillary Claimants: Mr. Jonathan Bhaggan

Date of Delivery: 6th November 2020

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JUDGMENT

[1] By Claim Form and Statement of Case filed on 19th November 2012, the

Claimant sought the following reliefs against the Defendant Gary

Oblington, the Administrator of the Estate of Oliver Oblington, deceased:

i. A declaration that the Claimant is entitled to possession of the

unexpired residue of the Statutory Lease from 1st June 1981 with

respect to One Lot of Land situate at Harper Lane, D’abadie in the

Ward of Arima together with the flat dwelling house standing

thereon on all and singular that certain piece or parcel of land

comprising five hundred and forty two point eight square meters

(542.8m²) situate at D’abadie in the ward of Arima bounded on the

north by Harper lane, on the south by lands of Violet Pickering, on

the east by a road reserve and on the west by lands of Oliver

Oblington leased to Trevor Wong Kee. (Parcel A).

ii. A declaration that the Claimant is entitled to possession of the

unexpired residue of the Statutory Lease from 1st June 1981, with

respect to one lot of land situate at Harper Lane, D’abadie in the

Ward of Arima together with a two storey dwelling house and a flat

dwelling house standing on all and singular that parcel of land

comprising six hundred and forty square metres (640m²) more or

less situate at Harper Lane D’abadie in the ward of Arima bounded

on the North by Harper Lane, on the South by lands of violet

Pickering, on the east by lands of Oliver Oblington leased to Trevor

Wong Kee, and on the west by lands of Edward Henry (Parcel B).

iii. Costs.

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STATEMENT OF CASE

[2] The Claimant pleaded that he was ‘the son, Administrator and sole

beneficiary of Trevor Wong Kee1 who died on the 3rd January 1997 (the

deceased). He averred that the deceased tenanted two parcels of land

from one Oliver Henry, the then owner. The first parcel, (Parcel A),

comprised the unexpired residue of the Statutory Lease from 1st June

1981 with respect to One Lot of land situate at Harper Lane, D’abadie in

the Ward of Arima together with the flat dwelling house standing thereon

on all and singular that certain piece or parcel of land comprising five

hundred and forty two point eight square meters (542.8m²) situate at

D’abadie in the ward of Arima bounded on the North by Harper Lane, on

the south by lands of Violet Pickering on the east by a road reserve and

on the west by lands of Oliver Oblington leased to Trevor Wong Kee; the

second the unexpired residue of the statutory lease from 1st June 1981,

with respect to one lot of land situate at Harper Land, D’abadie, in the

ward of Arima together with a two storey dwelling house and a flat

dwelling house standing on all and singular that parcel of land

comprising six hundred and forty square metres (640m²) more or less

situate at Harper Lane D’abadie in the ward of Arima bounded on the

north by Harper Lane, on the south by lands of Violet Pickering on the

east by lands of Oliver Oblington leased to Trevor Wong Kee, and on the

west by lands of Edward Henry, (Parcel B)(the said property).

[3] From or about 1966 the deceased began renting Parcel A from one Oliver

Henry, the then owner. In or about 1973, the deceased began renting

parcel B from the said Oliver Henry. There were two houses on this

parcel and the deceased took possession of it with Henry’s consent.

1 Paragraph 1 Statement of Case filed on 19th November 2012

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[4] Oliver Henry died in the late 1970s and the deceased continued in

occupation paying land and building taxes. As at 1981, the deceased

became a Statutory Tenant of Parcel B pursuant to the Land Tenant

Security of Tenure Act2 (the Act). He continued in occupation without

paying rent and without interruption until 1992, when Oliver Oblington

became owner of the larger parcel of land. Between 1990 to 1997, the

deceased, at considerable cost, renovated the houses on Parcel B and

rented them out to tenants.

[5] Oliver Oblington continued collecting land rent from the deceased for

Parcels A and B until after the death of the deceased in 1997, and

thereafter from one Gemma Gould, also called Gemma Joseph, the

mother of the Claimant. The tenants on Parcel B continued paying rent

to Gemma Gould until 2002 when Oliver Oblington took possession of

the two houses on Parcel B and demanded that the tenants pay rent to

him instead.

[6] The tenants complied with Oblington’s demand and paid the rents to

him. The Claimant and his mother were left in occupation of Parcel A

when Oblington seized the third house on Parcel B on the death of the

tenant who had occupied it. Oliver died in 2006 whereupon the

Defendant began collecting rent from one tenant who still occupied a

house on Parcel B.

[7] On the 27th May 2011, the Claimant, as Administrator of the Estate of

Trevor Wong Kee, gave written notice under Section 4(3) of the Land

Tenants Security of Tenure Act of his intention to renew the statutory

lease for Parcel B for thirty (30) years.

[8] The Defendant rented the second house to persons unknown even

though the estate of Oliver Oblington has not been administered.

Notwithstanding this fact, the Defendant went into occupation of Parcel

2 Chapter 59:54

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B to the exclusion of the Claimant, who, as Administrator and ‘sole

beneficiary’ of the estate of the deceased claims to be the Statutory

Tenant of same.

DEFENCE

[9] The Defendant admitted to having received the Notice sent by the

Claimant to him with respect to the renewal of the statutory tenancy.

[10] The Defendant denied, however that the deceased was a statutory tenant

of Parcel B since he was not in occupation as at June 1981. He however

admitted that the Claimant tenanted a house on Parcel A ‘since he know

himself in or about 1972’.3

[11] He averred that Misty Morris, one of the tenants on Parcel B, paid rent to

the Gemma Joseph until Oliver Oblington produced legal documents to

her evidencing his ownership of the land whereupon she then paid her

rent to him.

[12] The Defendant also denied that:

i. the deceased spent considerable sums of money repairing and/or

renovating the houses on Parcel B.

ii. the deceased was a Statutory Tenant of Parcel B.

iii. his predecessor Oliver Oblington collected rent from the deceased

for Parcels A and B until the latter’s death in 1997 and thereafter

from Gemma Gould until 2002.

iv. Oliver Oblington filed a complaint against the estate of Trevor

Wong Kee before the Rent Assessment board in 2002 to determine

3 Paragraph 20 of the Defence

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the standard rent payable for the premises comprising three

apartment buildings at Reid Lane, D’abadie.

v. the Claimant sent letters to him including pre-action protocol

letters regarding his claim herein.

THE ANCILLARY CLAIM

[13] The older siblings of the Claimant, Dave Wong Kee and Joanne Hunt filed

an Ancillary Claim against the Claimant by which they sought the

following Reliefs:

i. Damages including exemplary damages for breaches of duty of care

of the office of legal personal representative in the Estate of Trevor

Wong Kee.

ii. Damages for willfully refusing to distribute the Estate of Trevor

Wong Kee according to the law.

iii. Damages including exemplary damages for having obtained the

Grant of Letters of Administration by fraud and deceit.

iv. An Order that the Ancillary Defendant be made to furnish

accounts of his administration.

v. An Order that the Ancillary Claimants be jointly appointed by the

Court as Administrators of the Estate of Trevor Wong Kee in place

of the Ancillary Defendant on the basis that the Ancillary

Defendant obtained the grant through fraud and deception and

vi. A Declaration that the Ancillary Claimants were deprived of their

lawful share in the estate of the deceased.

vii. A Declaration that the ancillary Defendant willfully breached the

legal and equitable rights of the Ancillary Claimants.

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viii. A Declaration that the Ancillary Defendant’s share in the property

has been extinguished due to his tortious and fraudulent conduct.

ix. Interest

x. Costs.

[14] The Ancillary Claimants pleaded that they too are the lawful issue of the

deceased Trevor Wong Kee and siblings of the Ancillary Defendant, the

latter being their half brother by his mother Gemma Gould/Joseph. They

pleaded that they are entitled to a one third share in the estate of the

deceased as beneficiaries.

[15] They also pleaded that their mother and the deceased married under

Hindu rites, but said marriage was not registered.

[16] These Claimants pleaded that after the death of their father, they served

eviction notices on the tenants of the houses situate on Parcel B which

had been rented out by their father, however they did not proceed with

said eviction, instead allowing Gemma Joseph to collect the rent from

these tenants as income for herself and her minor son, the Ancillary

Defendant.

[17] Gemma Gould/Joseph, and later the Ancillary Defendant, excluded the

Ancillary Claimants from the said property and prevented them from

entering same since 1998. It was denied that the Ancillary Defendant or

his mother had conducted substantial repairs/renovations to the houses

on Parcel B.

[18] The Ancillary Claimants averred that:

a. the Ancillary Defendant obtained the Grant of Letters of

Administration of the deceased’s estate by fraud and deception in

an attempt to deprive the other beneficiaries of the estate of their

rightful share and interest.

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b. the Second Ancillary Claimant has been denied access to her

childhood home and has no place to stay in the jurisdiction of

Trinidad and Tobago.

c. The Ancillary Defendant has kept all profits obtained from renting

the deceased’s property and has never given account to the other

beneficiaries of Trevor Wong Kee.

d. The Ancillary Defendant has never attempted to distribute the

Estate of the deceased according to law when called upon to do so.

DEFENCE OF THE ANCILLARY DEFENDANT

[19] The Ancillary Defendant put the Ancillary Claimants to strict proof on

the issue of whether the second Ancillary Claimant is the daughter of the

deceased given the fact that his name is not included in her birth

certificate; he also put her to strict proof on her claim to an entitlement

of a one third share of his estate.

[20] The Ancillary Defendant also put the Ancillary Claimants to strict proof

on the issue of the marriage between the deceased and their mother on

the ground that the deceased, a Spiritual Baptist Leader, would not have

married under Hindu Rites.

[21] The Ancillary Defendant admitted that the Second Ancillary Claimant

spent time with the deceased, but asserted that they were limited to

holidays or weekends when she was a child.

[22] He admitted that he and his mother did not live with the deceased up to

the time of his death; he however asserted that Gemma Gould visited the

deceased every day during his illness and cared for him.

[23] The Ancillary Defendant denied that eviction notices were ever served on

the tenants by the Ancillary Claimants and stated that the deceased

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delegated to Gemma Joseph the responsibility of collecting rents before

he died. The attempt by the Ancillary Claimants to collect rent from these

tenants was rebuffed since the latter recognized Gemma Joseph as

landlord. He accordingly denied that the Ancillary Claimants ever allowed

Gemma to collect rents for their upkeep.

[24] It was denied that the Ancillary Claimants:

i. ever lived on the said property, having lived at Nelson Street, Port

of Spain

ii. effected repairs to the houses on the said premises

iii. the deceased ever acknowledged the Ancillary Claimants as his

children and indeed expressed doubts that they were.

[25] It was averred that there was little communication among the parties

about the settling of the estate of the deceased before/during his illness

or after his death. Further, no proof of the paternity of the deceased had

been furnished by the Ancillary Claimants up to the filing of this Claim.

[26] Andy Wong Kee pleaded that after his mother filed for Letters of

Administration of the Estate of the deceased the Ancillary Claimants filed

several caveats but failed to institute legal proceedings.

[27] He pleaded further that the Ancillary Claimant entered an appearance on

the 28th day of November 2001 but failed nevertheless to take any steps

for three (3) years to further the Probate proceedings started by him.

Thereafter the said Gemma Joseph instructed her then Attorney at Law

to file an Originating Summons seeking an Order from the Court with

respect to whether the said First Ancillary Claimant had any interest in

the estate of the deceased.

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[28] Despite being served with the Originating Summons aforesaid, the First

Ancillary Claimant failed to attend Court on the date fixed for the hearing

of the Originating Summons. On that day, 21st day of April 2004, the

Honourable Mr. Justice Myers ordered (the Order) that the First Ancillary

Claimant has shown insufficient interest in the estate of the deceased.

[29] The Ancillary Defendant stated further that Gemma Joseph withdrew her

application for Letters of Administration of the estate of the deceased

when he attained the age of eighteen. He then filed an application for

Letters of Administration of his father’s estate.

[30] The Ancillary Defendant pleaded that on the advice of his Attorney at

Law and on the basis of the Order, he made a Statutory Declaration as

part of his application for said Letters of Administration in which he

swore that he was the only person entitled to the estate of the deceased.

[31] The Ancillary Defendant pleaded in the alternative that should the

Ancillary Claimants be the legal issue of the deceased and his biological

children (which was not admitted) the Ancillary Claimants are barred by

their own laches from maintaining any claim against the Ancillary

Defendant and/or any claim of an interest in the estate of the deceased

who died in January of 1997. He averred that neither Ancillary Claimant

made any attempt to apply for Letters of Administration of the estate of

the deceased.

[32] He averred further that from 1997 to 2017, he and Gemma Gould have

spent approximately over one hundred thousand dollars ($100,000.00)

on the said property.

[33] The Ancillary Defendant denied that he had committed any of the

tortuous acts as alleged by the Ancillary Claimants.

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REPLY OF ANCILLARY CLAIMANTS

[34] The Second Ancillary Claimant relied upon the following facts in support

of her claim that she is the daughter of the deceased:

a. her father’s signature on her marriage certificate as father of the

bride

b. the fact that she lived with her paternal grandmother Pearl Wong

Kee at the Harper Lane/Reid Lane, D’abadie property until she was

seventeen years old.

c. from 1994 to 27 November 1996, she lived with the deceased at the

subject premises.

d. their attorney had given attorneys for Gemma Joseph proof of

paternity of the Ancillary Claimants. The Ancillary Claimants

denied that the Ancillary Defendant and his mother lived at the

subject property between 1994 and 1996 and asserted that they

only visited sporadically since Gemma Joseph was married to one

Mr. Joseph and lived with him and their infant son.

[35] The Claimants also denied that they were guilty of laches and pleaded

that since 1997 they had given instructions to their then attorneys to file

an Application for Letters of Administration of the Estate of the deceased

and signed a consent form relative to said application.

[36] The Ancillary Defendant’s assertion that he believed that he was the only

child of the deceased was denied on the ground that such belief could

not reasonably have been held by the Ancillary Defendant given his

interactions with the Ancillary Claimants over the years, correspondence

between his mother’s attorneys, his attorneys and the lawyers for the

Ancillary Claimants and caveats filed by the Ancillary Claimants against

the application for Letters of Administration filed by the Ancillary

Defendant’s mother.

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[37] It was also denied that the Ancillary Defendant spent one hundred

thousand dollars on the subject property as alleged since receipts for

only two thousand, one hundred and sixty two dollars and thirty nine

cents ($2,162.39) were annexed.

[38] At the trial of this claim, the parties agreed that the Court proceed with

the Ancillary Claim first and that the matter be determined on the basis

of legal submissions after partial cross-examination of the Ancillary

Claimant, Dave Wong Kee.

EVIDENCE

Gemma Gould

[39] Ms. Gemma Gould/Joseph testified to the following matters:

(i) she knew the deceased had two children who lived in Port of Spain4.

(ii) she knew that Joanne, the Second Ancillary Claimant was his daughter

and had spent time with the deceased as a child at the subject property5.

(iii) she claimed not to know the First Ancillary Claimant having only met

him at the deceased’s funeral for the first time.6

(iv) during the deceased’s illness Joanne visited; Dave also visited him once.7

(v) the Ancillary Claimants never told her that they were children of the

deceased – the latter’s relatives (sister and mother) told her about the

family.8

4 Para 10 of the Witness Statement of Gemma Gould filed 31 Jan 2019 5 Para 12 of the Witness Statement of Gemma Gould 6 Para 14 of the Witness Statement of Gemma Gould 7 Para 15 of the Witness Statement of Gemma Gould 8 Para 17 of the Witness Statement of Gemma Gould

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(vi) tenants revealed correspondence received from the Ancillary Defendant’s

lawyers advising of their intent to apply for Letters of Administration of

the deceased’s estate.9

(vii) that she received advice from Attorney Leandra Ramcharan that a joint

application for Letters of Administration be made by the Ancillary

Claimants as well as herself on behalf of the Ancillary Defendant; further

that she (Gemma) create a trust account to deposit monies pending the

Grant of Letters of Administration and distribution of the assets of the

estate in accordance with the Rules of Intestacy.10

(viii) that the First Ancillary Claimant filed a caveat sometime in 2001.11

(ix) in 2004 the Ancillary Defendant was 21 years old and therefore gained

the legal capacity to make the application for a Grant of Letters of

Administration for the estate of the deceased on his own behalf.12

Andy Wong Kee

[40] The Ancillary Defendant testified to the facts and matters hereunder:

(i) he read over his affidavit in support of his Application for Letters of

Administration which deposed that he was the only child of the

deceased. He signed the affidavit because at that time he had no

information or documentation in proof of the fact that Dave or

Joanne were in fact the children of the deceased. That his lawyer

advised him to sign in light of the Court Order.13

(ii) that the first time that he saw Dave’s birth certificate was when the

Ancillary Claim was filed nineteen(19) years after the deceased’s

9 Para 22 of the Witness Statement of Gemma Gould 10 Para 25 of the Witness Statement of Gemma Gould 11 Para 39 of the Witness Statement of Gemma Gould 12 Para 44 of the Witness Statement of Gemma Gould 13 Para 17 and 19 of the Witness Statement of the Ancillary Claimant of 31 Jan 2019

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death.14 He supported the evidence of his mother with respect to

the history of the deceased’s entitlement to the said property and

the involvement of the Ancillary Claimants in challenging her

application for a Grant of Letters of Administration of the estate of

the deceased.

Dave Wong Kee – First Ancillary Claimant

[41] The Ancillary Claimant testified to the following facts and matters:

(i) Joanne was born on the 29th September 1959. He was born on the

20th February 1961. (Joanne was 24 years old when the Ancillary

Defendant was born, he was 22).15

(ii) Joanne lived on the subject property until she married one Trevor

Brace on the 2nd February 1980 in Barbados. The deceased signed

her marriage certificate.16

(iii) the deceased and Gemma Gould met in 1982. The latter served in

the deceased’s church.17

(iv) he met the Ancillary Defendant when the latter was two to three

years old in or about 1986. Andy Wong Kee lived with his mother

and the grandmother in Reid Lane, D’abadie.18

(v) he delivered money on behalf of the deceased to the Ancillary

Defendant’s mother for the maintenance of the said Ancillary

Defendant.19

14 Para 27 of the Witness Statement of Andy Wong Kee 15 Para 3 and 4 of the Witness Statement of Dave Wong Kee filed on the 5th November 2018 16 Para 17 of the Witness Statement of Dave Wong Kee 17 Para 19 of the Witness Statement of Dave Wong Kee 18 Para 20 of the Witness Statement of Dave Wong Kee 19 Para 21 of the Witness Statement of Dave Wong Kee

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(vi) Joanne lived with her son and the deceased from 1995 to 1996.

She returned in 1997 on his death.20

(vii) Gemma Gould lived with Mr. Joseph (her husband) for five (5)

years prior to the death of the deceased. They married on 3rd

November 1993.21

ANALYSIS AND CONCLUSION

ISSUE A

Does the Ancillary Defendant hold the estate of the deceased as Trustee

on behalf of the beneficiaries of the said estate?

[42] It is important to begin this analysis by examining the Ancillary

Defendant’s role as legal Personal Representative of the estate of the

deceased and his legal responsibility, if any, to the Ancillary Claimants.

[43] The Succession Act (the Act)22 provides that the Legal Personal

Representative of a deceased person holds his real and personal estate as

trustee for the person(s) beneficially entitled to such estate.

[44] The Act also provides that the Legal Personal Representative shall

transfer/deliver the personal estate when called upon to do so by the

person(s) beneficially entitled to same.23 The Act further provides that the

estate of the deceased, after the payment of testamentary expenses and

debts must be distributed to those beneficially entitled or held on trust

20 Para 25 of the Witness Statement of Dave Wong Kee 21 Para 31 of the Witness Statement of Dave Wong Kee 22 Chapter 9:02 Section 36(3) (3) A grant of Probate or Letters of Administration, unless it contains an express limitation to the contrary, has effect as well over the real as over the personal estate and, subject to subsection (4), the personal representatives of a deceased person hold his real estate as trustees for the persons by law entitled thereto. 23 Section 12 of the Succession Act - 12. (1) Subject to subsection (2), all Wills, whenever made, are revoked by the marriage of the testator. (2) Marriage of the testator does not revoke a Will— (a) whenever made, if the marriage is in extremis and solemnized in accordance with the provisions of the Marriage Act; (b) made on or after 1st January 1928, and in exercise of a power of appointment, whereby the property appointed would not, in default of the appointment, pass to his intestate successors in accordance with Part VII or to his personal representative; (c) made on or after the said date and expressed to be in contemplation of marriage, whether so expressed in the Will or not; (d) made as a mutual Will by a survivor of two or more persons who made such Wills, where any such person other than the said survivor has since died without revoking his mutual Will.

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by the Legal Personal Representative for the benefit of persons who are

kin or next of kin of the deceased.24

[45] I therefore hold that the Ancillary Defendant is a Trustee of the estate of

the deceased and holds the estate of the said deceased as trustee for the

beneficiaries.

[46] Accordingly, the Ancillary Defendant’s duties as a trustee fall under the

provisions of the Trustee Ordinance and in particular Section 66(1) of

that Ordinance which provides that there is no period of limitation in

respect of fraud or a fraudulent breach of trust by a trustee.

ISSUE B

Did the Ancillary Defendant commit a Breach of Trust /Fiduciary Duty

and/or equitable fraud by deposing in his Application for Letters of

Administration that he was the sole issue of the deceased?

[47] In Halsbury’s Laws of England25, the Learned authors opine:

“It is the duty of personal representatives to hold an even hand

between all the beneficiaries of the estate. On the other hand they

must not unduly delay the payment or provision of any of the

legacies, …they ought not to sacrifice the interest of persons entitled

in remainder by realizing the estate for the benefit of a pecuniary

legatee at an inopportune time…”

[48] In Abacus Trust Co (Isle of Man) and another v Barr and others26,

Lightman J described how a Trustee should exercise his duties:

23. A devise of land, or any interest in land, whether beneficially or to any trustee, passes the fee simple absolute in possession, or other whole estate or interest which the testator had power to dispose of or create by Will in the land devised, unless a contrary intention appears from the Will.

25 Fourth Edition Reissue. Volume 17(2), Paragraph 439 26 [2003] EWHC 114

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“16. The existence of the fiduciary duty on the part of trustees

governing the exercise of their fiduciary powers requires trustees to

inform themselves of the matters which are relevant to the decision

(see Scott v National Trust for Places of Historic Interest or Natural

Beauty [1998] 2 All ER 705, 717), and in arriving at their decisions

whether and how to exercise their discretionary powers to take into

account all relevant but no irrelevant factors: see Edge v Pensions

Ombudsman [2000] Ch 602, 627-628. The fiduciary duty requires

trustees to follow a correct procedure in the decision-making process:

see Etherton J in Hearn v Younger [2002] EWHC 963 (Ch) at [91]

citing Staughton LJ in Stannard v Fisons Pension Trust Ltd [1991]

PLR 225, 237, para 65. This duty lies at the heart of the rule, which

is directed at ensuring for the protection of the beneficiaries under

the trust that they are not prejudiced by any breach of such duty.”

[49] In Singh and Singh v Singh and Tai Chew27, Narine J. (as he was then)

stated the following in relation to fraud;

“The burden of proving fraud lies on the person who alleges it. It

must be distinctly alleged and distinctly proved. The standard of

proof is on a balance of probabilities. However, the standard is

flexible, and requires a degree of probability commensurate with the

seriousness of the occasion. The more serious the allegation the

more cogent is the evidence required to overcome the likelihood of

what is alleged.”

[50] Derry v Peek28 dealt with fraudulent misrepresentation in Contract and

Tort Law. However, I have concluded that there is a Fiduciary

relationship between the Legal Personal Representative and the lawful

beneficiaries; in the circumstances the principles applicable are those

which a court of equity would apply.

27 HCA 530 of 1991 at page 24 paragraph 2 28 1889 14 App Cas 337

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[51] The Law on fraud has since developed the distinction between “Actual”

and “Constructive” Fraud.

In Mohammed v Mohammed29:

40. It is impossible to provide a complete definition of equitable

fraud. In equity the term “fraud” included not only actual fraud (in

the modern sense of fraudulent misrepresentation), but also certain

other conduct which fell below the standards demanded by equity

(and conventionally known as “constructive fraud”). Courts of Equity

did not stop at moral fraud in the ordinary sense but also took

account of any breach of the sort of obligation which is enforced by a

court that from the beginning regarded itself as a court of

conscience. The courts also refused to impose defined limits on

fraud, adhering to the view that fraud is as infinite as human

ingenuity.1 Viscount Haldane LC in Nocton v Lord Ashburton

considered the doctrine of fraud in equity2. His Lordship made it

clear that that an intention to cheat need not always be proved.

Rather the focus is not upon moral fraud in the ordinary sense of the

word, but upon breach of the sort of the obligation which is enforced

by a court [of equity] that from the beginning regarded itself as a

court of conscience:

…... when fraud is referred to in the wider sense in which the books

are full of the expression, used in Chancery in describing cases

which were within its exclusive jurisdiction, it is a mistake to

suppose that an actual intention to cheat must always be proved. A

man may misconceive the extent of the obligation which a Court of

Equity imposes on him. His fault is that he has violated, however

innocently because of his ignorance, an obligation which he must be

taken by the Court to have known, and his conduct in that sense

29 CV 2006-00045 at paragraph 40

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has always been called fraudulent, even in such a case as a

technical fraud on a power. It was thus that the expression

"constructive fraud" came into existence. The trustee who purchases

the trust estate, the solicitor who makes a bargain with his client

that cannot stand, have all for several centuries run the risk of the

word fraudulent being applied to them. What it really means in this

connection is, not moral fraud in the ordinary sense, but breach of

the sort of obligation which is enforced by a court that from the

beginning regarded itself as a court of conscience.

[52] In Creditcore Ltd v King, Kingston and Ors30 Steyn LJ opined:

“It is not correct to say that a fraud case cannot properly be pleaded

on inferences. On the contrary, it is by the drawing of legitimate

inferences from circumstantial evidence that most fraud cases are

pleaded. That is also the way in which most fraud cases are proved

at trial.”

[53] The facts are that the Ancillary Claimants are the children of the

deceased, and much older than the Ancillary Defendant. They were 21

and 23 years old respectively in 1983. I accept their evidence that both

the Ancillary Defendant and his mother knew that they were the children

of the deceased at the time that Gemma Joseph filed her application for

Letters of Administration of the deceased’s estate in 1997 and when the

Ancillary Defendant filed his application in 2007. Gemma Joseph

testified that:

i. she knew that the deceased had two children31 and that the

second Ancillary Claimant had spent time with the deceased on the

subject property as a child32.

30[1992] Lexis Citation 1881

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ii. that she met the First Ancillary Claimant at the deceased’s funeral

for the first time33.

iii. that during the deceased’s illness the Second Ancillary Claimant

visited him as did the First Ancillary Claimant on one occasion34.

[54] Further evidence of their knowledge of the paternal relationship between

the Ancillary Claimant and the deceased is demonstrated in 1997 when

the Ancillary Defendant’s mother was given a letter from attorneys

representing the Ancillary Claimants advising of the latters’ intention to

apply for Letters of Administration and Ms. Joseph’s advice from attorney

Leandra Ramcharan that a joint application for Letters of Administration

be filed, a trust account created to deposit monies for the estate pending

the Grant of Letters of Administration and the distribution of the estate

according to the Laws of Intestacy upon the receipt of such grant35.

[55] The caveats filed against the application would also have made clear that

the Ancillary Claimants were interested in the deceased’s estate – (to

their knowledge) as children of the deceased. I note that as far back as

1997 when the Ancillary Defendant’s mother had filed for a Grant of

Letters of Administration on his behalf, she deposed an affidavit that he

was the only person entitled to the deceased’s estate despite her

knowledge to the contrary. The Ancillary Defendant attained the age of

eighteen in 2001, the age of twenty one in 2004 and was twenty four

years old when he filed an application for Letters of Administration in

2007.

[56] It is his evidence that he was aware that Dave was attempting to stop his

mother’s application for Letters of Administration of his father’s estate

and had accompanied her on several occasions to her lawyer’s office in

31 Paragraph 10 of Witness Statement of Gemma Gould 32 Paragraph 12 of Witness Statement of Gemma Gould 33 Paragraph 14 of the Witness Statement of Gemma Gould 34 Paragraph 15 of the Witness Statement of Gemma Gould 35 Paragraph 25 of the Witness Statement of Gemma Gould

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connection with this application.36From the age of eighteen he assumed

responsibility for the Application for a grant of his father’s estate,

consulted his attorney on the matter and was fully appraised of the facts,

including the action taken by the Ancillary Claimants to stop his mother

proceeding with the grant. I did not accept his reasons for asserting that

he was the sole issue of the deceased and treating with the estate as

though he was in fact solely entitled thereto. Andy testified that he

asserted that he was sole issue of the deceased because the First

Defendant had failed to respond to a Summons to declare his interest in

the estate and his lawyer advised him that in the circumstances he could

depose that he was the sole issue of the deceased and therefore alone

entitled to his estate. I am of the view that given the history and

relationship among the parties that the Ancillary Defendant, a young

man in his mid-twenties with full knowledge of the facts, deliberately

deposed to a falsehood in his affidavit in support of his application for

Letters of Administration. His failure to inform the Ancillary Claimants

that he had filed his application, and the subsequent failure to distribute

the estate according to the rules of intestacy support my view that his

actions were deliberate and done with the intention of excluding the

Ancillary Claimants from a share in the estate.

[57] I have already held that the Claimant was a trustee of the estate of the

deceased, he was therefore legally obliged to distribute the deceased’s

estate upon receipt of the grant – this he has clearly failed and refused to

do. He has therefore breached the terms of the trust created by the Act.

[58] On the issue of fraud, I hold that the actions of the Ancillary Defendant

amount to equitable fraud or constructive fraud since they meet the

requirements of this type of fraud as outlined in the case of Nocton v

Lord Ashburton37.

36 Paragrahp 13 of the Witness Statement of Andy Wong Kee 37 HL 1914 AC 932

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[59] The obligation of the Ancillary Defendant as trustee of the estate of the

deceased is an equitable one and enforceable by a Court of equity. I hold

that in the circumstances it would be unconscionable for the Ancillary

Defendant to deprive the Ancillary Claimants of their share of the estate.

The fraudulent act of deliberately asserting that he was the sole issue of

the deceased when he knew this was a falsehood, failing to advise the

Ancillary Claimants of his application, acting in breach of trust by failing

to distribute the deceased’s estate as he was required to by the Act

amounted to equitable fraud on the part of the Ancillary Defendant.

LACHES

ISSUE C

Did the Ancilliary Claimants fail to prosecute their claim without undue

delay and are thereby disentitled to relief under the Equitable Doctrine

of Laches?

[60] In Hugh Lee King vs Leo Martinez and Veronica Lambert38 Madam

Justice Judith Jones (as she was then) examined the doctrine of laches

and the issue of acquiescence.

The Learned Trial Judge opined39: stated of her Judgment as follows:

“In equity a claimant is required to prosecute his claim without

undue delay. The defence of laches arises if two conditions are

satisfied: first, there must be an unreasonable delay on the part of

the claimant in the commencement of the proceedings and, secondly,

in view of the nature and consequences of that delay it must be

unjust in all the circumstances to grant the specific relief in question

whether absolutely or on appropriate terms or conditions. The

38 CV2012-03303 39 at page 12 CV2012-03303

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question of delay therefore is but a part of one of the conditions that

must be satisfied to establish laches.

The learned authors of Halsbury’s Laws of England opined40:

“In determining whether there has been such delay as to amount to

laches, the chief points to be considered are (1) acquiescence on the

plaintiff's part, and (2) any change of position that has occurred on

the defendant’s part. Acquiescence in this sense does not mean

standing by while the violation of a right is in progress, but assent

after the violation has been completed and the plaintiff has become

aware of it. It is unjust to give the plaintiff the remedy where, by his

conduct, he has done that which might fairly be regarded as

equivalent to a waiver of it; or where, by his conduct and neglect,

though not waiving the remedy, he has put the other party in a

position in which it would not be reasonable to place him if the

remedy were afterwards to be asserted. In such cases lapse of time

and delay are most material. Upon these considerations rest the

doctrine of laches.”

The authors of Spry Principles of Equitable Remedies 41 opined:

“the classic case of laches arises when, during unreasonable delay

by the plaintiff, the defendant, either expends money or incurs an

additional liability…….”

[61] The Ancillary Defendant submitted that no relief/remedy can or should

be granted the Ancillary Claimants since they failed to prosecute their

claim without undue delay, having filed some nineteen (19) years after

the death of the deceased and six years after the Grant of Letters of

Administration to the Ancillary Defendant. It was also submitted that it

would be unconscionable to grant the reliefs sought by the Ancillary

40 4th Edition Volume 16 para 1477 41 8th Edition at page 431

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Claimants since they knew that the Ancillary Defendant and his mother

had expended some one hundred and fifty thousand dollars on the

property to improve it without assisting or contributing in any way. It

was also submitted that no explanation has been proffered by the

Ancillary Claimants for failing to take any step in the matter after

entering an appearance to the warning issued by attorney for the

Ancillary Defendant in 2001.

[62] The Ancillary Claimants on the other hand, submitted that time only

began to run when in 2016 the Ancillary Claimants obtained office copies

of the affidavit filed by the Claimant in the Application for the grant of

Letters of Administration.

[63] Firstly, I note that the Ancillary Defendant has not established that it

would be unconscionable for the Ancillary Claimants to be granted relief

due to unreasonable delay on their part. Andy Wong Kee has failed to

adduce evidence that he and his mother expended one hundred and fifty

thousand dollars in repair on the said property. As noted above42, the

receipts only establish that a little over two thousand dollars was spent

by them in repairs. Indeed, what the evidence has shown, to the

contrary, is that the Ancillary Defendant has been in sole receipt of the

rental income from the said property.

[64] I note that Section 66(i) of the Trustee Ordinance provides that there is

no limitation period where the trustee has acted fraudulently with

respect to trust property. In this case, I have already held that the

Ancillary Defendant committed equitable fraud by his false statement on

oath that he was the sole issue of the deceased and his failure to

distribute the estate of the deceased which he held on trust for the

beneficiaries of the said estate, which included the Ancillary Claimants.

42 Para 37 above

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[65] In any event, on the facts of this case, the claim was brought within four

years of the discovery of the Ancillary Defendant’s fraudulent act. It was

the Defendant’s failure to notify the Ancillary Claimants of his

application for the Grant of Letters of Administration43 which led to the

late discovery of his breach of trust and equitable fraud by the Ancillary

Defendant.

[66] I also took into account the fact that the Ancillary Defendant’s false

statement amounted to a breach of Sections 4 and 5 of the Perjury Act

Chapter 11:1444. I am of the view the well known maxim of “he who

comes to equity must come with clean hands” applies here. The Ancillary

Defendant having committed constructive fraud and a breach of trust

cannot avail himself of the Doctrine of Laches given his unconscionable

conduct. In the circumstances I hold that this ground must fail.

[67] One of the Reliefs sought by the Ancillary Claimants is for the removal of

the Ancillary Defendant as Legal Personal Representative of the estate of

the deceased by reason of his fraudulent acts. The Court has an inherent

jurisdiction to remove and replace trustees where such trustees have

committed a breach of trust or other misconduct relating to their duties

as trustees. Lord Blackburn in the case of Letterstedt v Broers45 stated

the principle thus:

“But in cases of positive misconduct, courts of equity have no

difficulty in interposing to remove trustees who have abused their

trust; it is not indeed every mistake or neglect of duty; or inaccuracy

43 Rule 32 of the Non Contentious Business Rules, Wills and Probate Act Chap 9:03 - 32. An applicant for a grant of administration with the Will annexed or for administration shall cite all persons having a prior right to apply for a grant of probate or administration, as the case may be, and who have not renounced the right to the grant. The Court may grant administration to the applicant in the event of the persons having such prior right failing to appear and to accept the grant after having been cited to do so. 44 (4) A statement made by a person lawfully sworn in Trinidad and Tobago for the purposes of a judicial proceeding— (a) in another Commonwealth country; (b) in a tribunal of a Commonwealth country lawfully constituted in any place by sea or land outside the Commonwealth; or (c) in a tribunal of any foreign state, shall, for the purposes of this section, be treated as a statement made in a judicial proceeding in Trinidad and Tobago. (5) The question whether a statement on which perjury is assigned was material is a question of law to be determined by the Court of trial. 5. Any person who— (a) being required or authorised by law to make any statement on oath for any purpose, and being lawfully sworn (otherwise than in a judicial proceeding) wilfully makes a statement which is material for that purpose and which he knows to be false or does not believe to be true; or (b) wilfully uses any false affidavit for the purposes of the Bills of Sale Act, is liable, on conviction on indictment, to a fine and to imprisonment for seven years. 45 (1884) 9 App. Cas. 371

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of conduct of trustees, which will induce courts of equity to adopt

such a course. But the acts or omissions must be such as to

endanger the trust property or to show a want of honesty, or a want

of proper capacity to execute the duties, or a want of reasonable

fidelity."

It seems to their Lordships that the jurisdiction which a court of

equity has no difficulty in exercising… is merely ancillary to its

principal duty - to see that the trusts are properly executed…

Therefore, though it should appear that the charges of misconduct

were either not made out, or were greatly exaggerated, so that the

trustee was justified in resisting them… yet, if satisfied that the

continuance of the trustee would prevent the trusts being properly

executed, the trustee might be removed. It must always be borne in

mind that trustees exist for the benefit of those to whom the creator

of the trust has given the trust estate.

…In exercising so delicate a jurisdiction as that of removing trustees,

their Lordships do not venture to lay down any general rule beyond

the very broad principle above enunciated, that their main guide

must be the welfare of the beneficiaries.”

[68] Having found that the Claimant was in breach of his fiduciary duty as

trustee of the estate of the deceased and misconducted himself as trustee

by falsely deposing that he was the sole issue of the deceased and failing

to distribute the estate as he was obliged to do I have come to the

conclusion that in the interest of the welfare of the Ancillary Claimants,

the Ancillary Defendant must be removed as Legal Personal

Representative of the estate of the deceased. He has demonstrated on the

facts of this case a deliberate intention to deprive his siblings the

Ancillary Claimants of their share of the estate of their father and has

kept all the income from that estate for more than ten years for himself.

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[69] I therefore give Judgment for the Ancillary Claimants against the

Ancillary Defendant and make the following Orders:

i. That the Ancillary Defendant furnish accounts of his administration of

the estate of the deceased to the Ancillary Claimants.

ii. That the Ancillary Claimants are jointly appointed as Administrators of

the Estate of Trevor Wong Kee in place of the Ancillary Defendant.

I also grant the following:

iii. A Declaration that the Ancillary Claimants were deprived of their lawful

share in the estate of the deceased.

iv. A Declaration that the Ancillary Defendant willfully breached the legal

and equitable rights of the Ancillary Claimants.

iv. That the Ancillary Defendant do pay to the Ancillary Claimants damages

in the sum of forty thousand dollars ($40,000.00) for willfully refusing to

distribute the Estate of Trevor Wong Kee according to law.

v. A Declaration that the Ancillary Defendant obtained the grant of Letters

of Administration of the Estate of the deceased by fraud.

It is further ordered that:

vi. The Ancillary Defendant do pay to the Ancillary Claimants the costs of

the Ancillary Claim to be assessed by the Registrar in default of

agreement.

Joan Charles

Judge