Lawyer acted ‘dishonestly’ in 2013 land scam

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[PAGE 15] Judge Eleanor Donaldson-Honeywell –

A former labor court clerk has been found to have ‘dishonestly’ assisted a client in a series of land deals.

The finding was made by Judge Eleanor Donaldson-Honeywell against attorney and former registrar Marilyn Sammy-Wallace in relation to the 2013 land deal.

Sammy-Wallace was sued by Ganess Bhagwandeen seeking damages for ‘knowingly assisting’ the seller of the land who tricked her into paying $525,000 as part of a deal for four plots of land to Freeport who was not reimbursed when the deal fell through.

Donaldson-Honeywell had to determine whether Sammy-Wallace was responsible for dishonestly assisting the seller in committing a breach of trust.

She found that Bhagwandeen had “proved the dishonest aspect” of his claim against Sammy-Wallace who was ordered to pay the $525,000 “for dishonestly assisting” saleswoman Stephanie Bonaparte-Primus, the customer, in a breach of trust.

The judge also ordered the attorney to pay interest on the sum at a rate of five percent per annum from Nov. 8, 2013, to the Wednesday date she issued her decision.

Sammy-Wallace was also ordered to pay Bhagwandeen’s costs. He was represented by attorneys Gerald Ramdeen and Dayadai Harripaul while Sammy-Wallace was represented by attorneys Varude Badri-Maharaj and Suzette Bullen.

Bhagwandeen had advanced payment for the land and Sammy-Wallace was Bonaparte-Primus’ lawyer, hired to prepare the sales contracts.

Bonaparte-Primus did not honor the terms of the transactions, never ceding the land or refunding the money.

In 2017, Bhagwandeen filed a claim for recovery of monies paid which resulted in a judgment in his favor, by default, against Bonaparte-Primus, now deceased.

In evidence in court, Bhagwandeen presented information regarding the business relationship between the lawyer and her client which showed that the two had entered into their own agreement for the sale of the land for which Bonaparte-Primus had no title.

There were four sale deals in all with Bhagwandeen paying various sums for the land and there was a promise to pay him $1.5 million if the first three deals failed.

He alleged that the seller’s actions amounted to a fraudulent and dishonest scheme to appropriate his funds under the guise of a land sale transaction. He also alleged that the lawyer knew about these actions and assisted his client in carrying out the “fraudulent design”.

In defense of the claim against her, Sammy-Wallace argued that the claim raised no cause of action and constituted an abuse of process. She said the claims should have been made against the seller, not her.

In her decision, it was her case that she represented Bonaparte-Primus in the transactions, denying that she had failed to advise Bhagwandeen to seek independent legal advice. She also maintained that she had explained to Bhagwandeen the seller’s lack of title to the land and that as far as the “usual terms of agreements” were concerned, she was merely following her client’s instructions.

She put her role, not as legal counsel, but as a passive spectator in the transaction. She also denied acting as the seller’s agent for the transactions.

In his ruling, Donaldson-Honeywell ruled that Sammy-Wallace had failed to provide the case should be dismissed or struck out for abuse of process.

“To the contrary, the defendant’s actions in venting such an eleventh-hour plea constitute an abuse of process.”

In addressing the relationship between the solicitor and the seller, the judge found that the evidence showed that at the time the seller was contractually obligated to deliver the land or pay Bhagwandeen the promised sum, she was also paying Sammy-Wallace.

She said the lawyer’s failure to disclose the documents discovered by Bhagwandeen damaged her credibility, as “on a balance of probabilities she intended to withhold from the court any information that would support the case of the applicant”. She also found that Sammy-Wallace failed to refute Bhagwandeen’s case about the nature of his relationship with Bonaparte-Primus.

“This breach supports Plaintiff’s contention that the relationship was such that Defendant had full knowledge of the Seller’s breach of trust with Plaintiff and assisted her in this regard.”

On the issue of “breach of trust”, the judge held that “the series of transactions resulting in the fourth agreement, which was a sham, intended to induce the plaintiff to pay more money for land than he would ever receive, amounted to a breach of trust by the seller.

She said it would have been clear to Bonaparte-Primus and Sammy-Wallace that the former would have been unable to deliver.

“It is clear from Plaintiff’s filings and evidence that he claims that the seller tricked him, with the aid of the defendant, into entering into this fourth agreement,” she said, finding that he had established a breach of trust.

Donaldson-Honeywell also argued that Sammy-Wallace’s responses to the claim that she helped the seller commit the breach of trust were not credible.

“The version of the facts presented by the plaintiff was generally more credible because the defendant proved, by its answers in cross-examination, to have a propensity to provide false information.

“She admitted to doing this when she was required to help the seller with padded financials that would prompt a bank to provide loan financing to her.”

The judge said examples of “this padded financial accounting” in the statements of fees and expenses owed by the seller to the attorney were in the documents that Sammy-Wallace did not disclose to the court.

“…It is reasonable to conclude, based on this admitted falsehood, that the defendant would not only be dishonestly assisting the seller in deceiving the plaintiff, but that his version of events presented to the court is less than honest,” said the judge.

She also added that based on the court’s opinion of the credibility of the parties, Sammy-Wallace had been discredited to the point where Bhagwandeen’s account was “more believable”.

“It is more believable, as plaintiff contends, that the reason defendant agreed to prepare the absurd fourth agreement thereby giving peace of mind to plaintiff, who was ‘uncomfortable’, was that ‘it was helping the seller earn final extra payment’ from Bhagwandeen.

“She was aware that the seller would breach the trust by not repaying the monies paid or disposing of the land. Furthermore, there was no reason for the defendant to believe that the payment promised in the fourth agreement could be made. »

Regarding the claim that Sammy-Wallace “acted dishonestly”, the judge said: “Defendant’s failure to disclose to plaintiff his relationship as buyer to seller and as agent the real estate helper lends credit to the claimant’s case that she was fully aware of the dishonest nature of her role in assisting the seller with respect to the four agreements with the claimant.

“It is also apparent from the evidence on record that, from the first agreement, the defendant was aware of the unusual aspects of the transactions based on which it was clear that the plaintiff was being duped into parting with his money.

“The fact that the land was sold at an undervaluation, the down payment terms and the time to completion are included in these unusual factors,” the judge said.

“…She was fully aware that the agreements were intended as a ruse to encourage her to pay the money to the seller, who said the money had been used as a breach of trust.

She also said: “…The terms of the fourth agreement were in themselves evidence that the defendant must have known of the dishonesty of the transaction but ignored it while helping to draft agreements and encouraging the plaintiff to sign.”

“The plaintiff has proven the dishonest aspect of his complaint against the defendant,” she said.

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