Boyd-Meester v Fitzwilliam et Al
| Jurisdiction | Barbados |
| Judge | Husbands, J.,and |
| Judgment Date | 14 April 1983 |
| Neutral Citation | BB 1983 HC 17 |
| Docket Number | No. 951 of 1977 |
| Court | High Court (Barbados) |
| Date | 14 April 1983 |
High Court.
Husbands, J.
No. 951 of 1977
Mr. J.A. Connell and Mr. M.O. Pierce for the plaintiff
Mr. T. Hosein, Q.C., Mr. P. Williams and Messrs. Fitzwilliam, Stone and Alcasar for the first defendant
Mr. W.H.A. Hanschell, Q.C., and Mr. D.A.C. Simmons for the second defendant
Mr. H.deB. Forde, Q.C., and Mr. D.A.C. Simmons for the third defendant
Mr. H.deB. Forde, Q.C., Mr. D.A.C. Simmons and Messrs. Peter Evelyn & Company for the fourth defendant.
Contract - Importation of tiles — Whether agreement breached — No breach of contract found.
Company law - Allocation of shares and appointment of director — Whether third defendant was nominated for shares and appointed as director in breach of Articles and Memorandum of company — No merit found in the claims.
Tort - Negligence — Professional negligence — Whether first defendant was in breach of duty as attorney — at — law for the plaintiff in giving negligent advice — Allegation not supported by the evidence.
In this action the plaintiff claims that the first defendant was at all material times his attorney-at-law and legal adviser. The second defendant was his one time friend with whom he collaborated to form and promote Tanster Ltd., cited the fourth defendant. The third defendant is the wife of second defendant.
Broadly stated the plaintiff's case is that there was a conspiracy between the defendants and/or some of them to injure him in his business. In furtherance of this, they breached several of their contractual and fiduciary relationships with him. They combined to manage the fourth defendant, Tanster Ltd. and manipulate its shareholding in such a way that he lost his business investment of $268,750 and a managerial salary of $117,000. His credit and reputation were greatly injured in the process. The plaintiff alleges that in addition to being privy to the conspiracy the first defendant, as his attorney-at-law, was negligent in the performance of his duties. As a result he suffered great financial loss and loss of credit-worthiness. In his writ he states his claim as follows:–
“The plaintiff's claim is for damages for
(1) Unlawful conspiracy to injure the plaintiff in his trade, business, or other interests.
(2) Breach of fiduciary relationship between the plaintiff and the defendants.
(3) Negligence by the first defendant.
(4) Breach of contract by the first, second and fourth defendants.
(5) Interference with contract by the first, second and third defendants.
(6) Making an undisclosed profit.
(7) Declaration that the allotments of shares to Anita Oran in Tanster Ltd. were made in breach of the fiduciary duties of the directors of Tanster Ltd. and are void accordingly.
Further or alternatively, the plaintiff's claim is for:–
“(1) An account of all moneys received and expended by or on behalf of the fourth defendant, and the matters in respect of which such monies were received and expended.
(2) All further proper accounts, enquiries and directions.
(3) An order for the payment by the defendants to the plaintiff of any sum found due from the defendants to the plaintiff upon taking such account.
(4) Further and other relief.
(5) Costs.”
His Statement of Claim consisting of some 33 paragraphs specifies inter alia his special damages as being $117,000.
There is no doubt but that the plaintiff feels that he has been wronged and grievously. The defendants have denied each of the allegations.
There are a number of legal issues raised in this case. Their resolution depends to a large extent on the determination of an equal number of issues of fact to be distilled from the voluminous evidence that has been placed before me. It would indeed be easy and convenient for me to state concisely my findings of fact and, based on those findings, record my resolution of the legal issues and proceed to judgment. Such a judgment would however be wholly unintelligible, except for its result, to anyone who did not have at his elbow at least the relevant two hundred odd exhibits from which the facts were extracted.
I have therefore sought to set down in some chronological sequence the material evidence and have incorporated in the body of the judgment those exhibits and extracts therefrom which I consider essential to the understanding of what took place between the main combatants during the useful life of the fourth defendant, Tanster Ltd., which I shall sometimes refer to simply as the company. I have also juxtaposed the evidence of principal witnesses where there has been a divergence of view on material issues, so that the basis for my findings on evaluation may readily be perceived. The result is an uncharacteristically long judgment which some may consider tedious. But in the interests of clarity it cannot be avoided.
The plaintiff is a Dutchman with British nationality status. He is also a businessman. He came to Barbados in 1968. At first he concerned himself with agriculture. Then he turned his attention to the building trade.
In 1969 he acquired a substantial shareholding interest in a company called Nord Construction Ltd. Later when another company, Ralph Marshall Ltd., was incorporated Nord Construction Ltd. acquired 80 per cent of its share structure. It was in this year that the plaintiff came to know the first defendant whom he says became his personal solicitor as well as legal adviser in respect of his interests in Nord Construction Ltd. and Ralph Marshall Ltd. At this time too the plaintiff became acquainted with the second defendant Oran, who had engaged the services of one of his companies in construction work. The fourth defendant was a company that the plaintiff was instrumental in forming in 1973. He gives the background to the formation of this company as follows.
The plaintiff says he was for some time the sole agent for and importer into Barbados of Decramastic roof tiles. These tiles were manufactured by one J.L. Fisher Ltd., a subsidiary of Alex Harvey Industries of New Zealand, hereafter referred to as A.H.I. Ever increasing freight rates together with unfavourable and unstable exchange rates suggested that the manufacture of these tiles in Barbados under franchise would be a more attractive proposition than their importation. In time he found himself in conversation with the second defendant, a director of Oran Ltd, a company which manufactured in the island items of building hardware. The complementary nature of tile manufacturing to the business of Oran Ltd appealed to the second defendant who agreed that his offices, sales agents and secretarial staff could be drawn upon if a joint venture were possible. Accordingly the plaintiff entered into correspondence with a Mr. Williams of A.H.I. The plaintiff says he journeyed to New Zealand to discuss with A.H.I. the possibilities for the manufacture of the tiles in Barbados. On his return he and the second defendant agreed to form a company on a 50–50 basis to manufacture these tiles under licence.
He engaged the services of the first defendant, Neil Fitzwilliam, a recognised attorney-at-law, to form the company. The company named Tanster Ltd. was incorporated and registered on 30th January, 1973. The plaintiff and the second defendant were the only shareholders. The plaintiff says it was agreed between them that the plaintiff would be the managing director at a salary of $4,000 per month of which the plaintiff “would only take $2,000 per month for expenses and the remainder would be owing” to him from the company. The first defendant agreed to be the company secretary and Ralph Marshall and Clifton White were invited and accepted appointment as directors.
The plaintiff says that his investment in the company totalled some $268,750. It happened like this. In December 1972, in anticipation of the formation of the company and in agreement with the second defendant, he transferred to London the equivalent of U.S.$60,000 to open an account in their joint names on behalf of the intended company. In October 1973, he sent U.S.$65,000 to one Max Deakter of Comfort Craft Ltd. in Miami, U.S.A., whom the second defendant had agreed would be their commission and buying agent in Miami. The second defendant contributed a similar sum of Barbados $268,750. This money was to be used to purchase machinery and raw materials for Tanster Ltd. On formation of the company it was agreed between the company and the second defendant that the company would accept and take over liability for all loans made by the plaintiff and the second defendant prior to its incorporation. This the plaintiff says is shown in the company's audited accounts.
Next, negotiations were entered into between Tanster Ltd. and Adams Construction Ltd. for the purchase of some 37,000 square feet of land from Fiona Ltd., on which the company's factory would be built. The legal services of the first defendant were again engaged. On being told of the purpose for which the land was required, the plaintiff says that the first defendant advised him and the second defendant that at the time of purchase a Barbadian national should have a majority shareholding in the company and the first defendant suggested that this could be achieved if the second defendant held one share more than the plaintiff. This was agreed and the plaintiff confirmed his agreement by letter, Exhibit “46”. However, the plaintiff says his agreement was subject to two conditions –
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(a) that the arrangement was legal, and
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(b) that he would “retain unconditional right to equality with the second defendant”.
The land was bought.
The plaintiff says that with the full agreement of the second defendant he undertook to discuss with Barclays Bank International Ltd. in Barbados, hereinafter called Barclays Bank, and Barclays Finance Corporation of Barbados Ltd.,...
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