REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

CIVIL APPEAL No.259 of 2011

CV 2008-000393

BETWEEN

DAVID DESLAURIERS
LEONORA DESLAURIERS

APPELLANTS/DEFENDANTS
AND

GUARDIAN ASSETS MANAGEMENT LIMITED

RESPONDENT/CLAIMANT

PANEL: A MENDONA JA
G SMITH JA
P MOOSAI JA

APPEARANCES:
Mr. P Knox QC, Mr. I Benjamin,
Mr. J Almeida,
appeared on behalf of the Appellants

Ms. D Peake SC, Mr. K Garcia,

Appeared on behalf of the Respondent

DATE DELIVERED: 3rd February, 2016.

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I have read the judgment of Smith JA and agree with it.
A.Mendona
Justice of Appeal

I too, agree.
P. Moosai
Justice of Appeal

JUDGMENT

INTRODUCTION

1. The Respondent, Guardian Asset Management Limited (GAM) loaned a total of 18.6
million dollars to the Appellants (Deslauriers) in October 2007. The loans of 18.6 million were
secured by (inter alia) two promissory notes. Deslauriers defaulted on their loan payments and
GAM sued them on their promissory notes.
In answer to GAMs claim, Deslauriers attempted to set off a counterclaim they pursued
against GAM. That counterclaim was for damages for losses they sustained as a result of the
negligence and/or misrepresentation and/or non-disclosure of GAMs agents in the course of the
loan negotiations.

2. The trial judge, Rahim J, gave judgment for GAM on its claim in the sum of
$20,676,295.69 plus interest and dismissed Deslauriers set off and counterclaim.

3. Deslauriers now appeal that decision.

4. We see no valid reason to overturn the findings of the trial judge and accordingly we
dismiss this appeal.

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5. It is important to appreciate the case that was argued before the Trial Judge before
considering the case that was argued on appeal.

SUMMARY OF THE CASE ARGUED BEFORE THE TRIAL JUDGE AND HIS
FINDINGS OF FACT

6. GAMs case was that it provided a bridging loan to Deslauriers in the total sum of $18.6
million. The loan was secured by 2 promissory notes and Deslauriers have defaulted on the
payments due on the promissory notes.

7. Deslauriers admitted liability on the promissory notes subject to the set off and the
counterclaim they pleaded. Deslauriers did not contest the validity of the promissory notes. They
claimed relief against their obligation to repay the bridging loan until they were able to obtain
additional financing to complete the construction project for which they had sought the bridging
loan from GAM. This construction project was a housing development known as Hevron
Heights.

8. Deslauriers also claimed to set off their liability under the promissory notes against their
counterclaim made against GAM. This counterclaim alleged that GAM was under a duty of care
to both advise or to disclose to the Defendants,GAMs lending limitations so that they
should not pursue or treat withGAM for the additional financing1 for the Hevron Heights
construction project. As a result of GAMs negligence, misrepresentation or non-disclosure with
respect to its inability or incapacity to finance the Hevron Heights project to its completion,
Deslauriers suffered loss estimated at $24 million.

9. GAM in turn denied that Deslauriers liability to repay the bridging loan was in any way
connected to or dependent upon any financing of the Hevron Heights project to completion.
They denied that they were under any duty of care to discuss with or to advise Deslauriers on any
lending limitation since they only agreed to, and did actually provide a loan of $18.6 to

1
See Counterclaim at [34]

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Deslauriers. Of that sum $17,827,418.53 was paid to Republic Bank to clear off Deslauriers
indebtedness to Republic Bank. The balance of $772,581.47 was paid to Deslauriers to enable
them to pay off a contractor on the project. No separate issues or arguments were advanced about
this smaller loan of $772,581.47, and in this judgment references to refinancing the debt of
Deslauriers to Republic Bank will include the repayment of this minor debt due to a contractor.

10. In his written reasons, the trial judge examined:

- the pleaded case;
- the documentary evidence; especially so, the contentious E-mail correspondence
between the parties;
-the evidence of the only 2 witnesses, namely, Mr. Leon Ramdeen on behalf of GAM
and Leonara Deslauriers (Mrs Deslauriers) on behalf of Deslauriers; and
-the arguments advanced.

11. Crucially, the trial judge accepted the evidence of Mr. Ramdeen in support of GAMs
case and disbelieved the evidence of Mrs. Deslauriers in support of the Defence and
Counterclaim.

12. At various parts of his reasons, the trial judge referred to the evidence of Mr. Ramdeen
with respect to the bridging loan arrangements and accepted (inter alia) that:
i) GAM did not undertake to finance the Hevron Heights project;2
ii) GAM only provided financing for Deslauriers to pay off their existing indebtedness to
Republic Bank in respect of the Hevron Heights project.3
iii) Deslauriers was going to fund the balance of the project otherwise than through
GAM.4
iv) Deslauriers was not relying initially on GAM for future financing of the project. 5
v) GAM exercised the requisite duty of care.6

13. With respect to the evidence of Mrs. Deslauriers the trial judge observed (inter alia):

2
See Judgment of Rahim J at [50],[54] and [63]
3
See Judgment of Rahim J at [36]-[38] and[54]
4
See Judgment of Rahim J at [37]-[39] and [50]
5
See Judgment of Rahim J at [52]
6
See Judgment of Rahim J at [52] and [54]

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 i. Many of the assertions of Deslauriers were inconsistent, contradictory or
otherwise not supported by their documentary evidence.7
ii. The trial judge disbelieved Mrs. Deslauriers evidence that Mr. Ramdeen made
the pleaded representations off the record.8
iii. ..in several of the email correspondence, the language employed by the Second
Defendant (Mrs. Deslauriers) lacked clarity and certainty.9
iv. Any impression of a representation by GAM in the emails appeared to be of her
( Mrs. Deslauriers) own making to say the least having regard to what appeared
to be her unconventional method of expressing herself in the relevant
correspondence.10
v. Since there was no representation as pleaded, there could be no misrepresentation
relating to financing of the project.11
vi. The court could find no evidence of misleading conduct by Mr. Ramdeen. The
fact that GAMs representatives saw no need to discuss a lending limit with
Deslauriers may very well be evidence for the court to infer that it was never
represented by (GAM) that it would finance the project.12
vii. The allegation with respect to further financing from GAM after the April 2009
disbursement appeared to be an afterthought.13
viii. On the evidence there was no negligence, or any type of misrepresentation or
failure of consideration as pleaded and submitted by Deslauriers.14

14. In arriving at his findings and inferences of fact, the trial judge measured his impressions
of the witnesses credibility against the contemporaneous documents (such as the E-mail
correspondence) and the witness statements.15

7
See Judgment of Rahim J at [50]
8
See Judgment of Rahim J at [63]
9
See Judgment of Rahim J at [64]
10
Ibid
11
Ibid
12
See Judgment of Rahim J at [67]
13
See Judgment of Rahim J at [68]
14
See Judgment of Rahim J at [70]
15
See Reid v Charles PCA 36 of 1987 at page 6

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 In such a case It can of course, only be in the rarest occasions and in circumstances
where the appellate court is convinced by the plainest of considerations, that it would be
justified in finding that the trial judge had formed a wrong opinion.16
I say from the outset that this present appeal is not one of those rare cases to disturb the
trial judges findings and inferences of fact.
In any event, the task of Deslauriers is rendered more unsustainable because of the
concessions made by their Counsel to the effect that they were not challenging certain important
findings of fact. The challenge on appeal was only to a limited part of the findings of fact by the
trial judge.

DESLAURIERS CASE ON APPEAL

15. In oral submissions Counsel for Deslauriers made it clear that he was not challenging the
trial judges finding that there was no promise by GAM that it would finance the Hevron Heights
project to its completion. Counsel also conceded that he was not pursuing certain allegations in
the Defence and Counterclaim; namely
i. Paragraph 23- where Deslauriers alleged that the provision of financing for the
entire Hevron Heights project was a condition precedent to the repayment of the
$18.6 million loan.
ii. Paragraph 37- where Deslauriers alleged that GAM breached their agreement with
them to provide funding for the entire project.

16. These concessions were in keeping with the limited case now being argued on appeal,
namely that GAM clearly misrepresented or failed to disclose their capacity to provide further
funding for the project.
Deslauriers now only ask for judgment on the counterclaim and a stay on GAMs claim,
(not for its dismissal) pending an assessment of the counterclaim.

17. The case now argued on appeal is untenable for the following two reasons:

16
See Beacon Insurance Company Limited v Maharaj Bookstore Limited [2014] UKPC 21 at [12]

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A) The concessions in respect of the trial judges findings makes the counterclaim and any set
off unsustainable

B) The case now raised on appeal does not warrant the reversal of the trial judges findings.

A) THE CONCESSION IN RESPECT OF THE TRIAL JUDGES FINDINGS MAKES

THE COUNTERCLAIM AND ANY SET OFF UNSUSTAINABLE

18. In the case as contemplated and advanced before the trial judge, the loss and damage
suffered were caused by the failure of GAM to provide funding for the entire Hevron Heights
project to its completion. The pleaded particulars of that loss and damage were (i) the return of
the deposits in housing units; (ii) loss of profits from the sale of those units; and, (iii) the cost of
running the project pending completion.17 On the case as pleaded, these losses would not have
been incurred had Deslauriers completed the Hevron Heights construction project.

19. It is now accepted that GAM bore no responsibility for financing the Hevron Heights
project to completion. Deslauriers bore this responsibility.
Any loss and damage caused by the lack of financing to complete Hevron Heights project
was not the responsibility of GAM but of Deslauriers.
Deslauriers cannot now maintain their counterclaim against GAM for the loss and
damages they suffered because of their own inability to complete the Hevron Heights project due
to a lack of funding. Also, since Counsel for Deslauriers now limits the set off to the
counterclaim, the set off too must fail.

20. Further, the loss and damage claimed did not relate to any case other than the one
originally contemplated. Such loss and damage in relation to the new case would be too remote
in any event. As I will indicate later in this judgment,18 Deslauriers themselves contend that the

17
See Counterclaim at [36], [38]
18
See [23] below

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downturn in the local economy frustrated their attempts to obtain further financing to complete
the project. This was a major cause of their loss and a cause for which GAM was not responsible.
The cause of Deslauriers inability to obtain financing to complete the Hevron Heights project
was not proved to be the fault of GAM and they cannot recover that loss from GAM.

B) THE CASE NOW PURSUED ON APPEAL DOES NOT WARRANT THE

REVERSAL OF THE TRIAL JUDGES FINDINGS.

21. As I stated before, Deslauriers now does not challenge the trial judges finding that GAM
never promised or undertook to finance the Hevron Heights project to its completion. The focus
of the written submissions before the trial judge centred around an alleged agreement to finance
the entire Hevron Heights project and this was in keeping with the way the case was pleaded.
Deslauriers was assisted by Counsel with these written submissions.
In similar vein, GAMs submissions before the trial judge focused mainly on the issue of
the alleged undertaking to finance the entire Hevron Heights project.
One can well understand therefore, why the trial judge focused most of his reasons on
this issue.

22. The case on appeal now focuses on the issues of negligence/ misrepresentation and non-
disclosure as it relates to GAMs lending capacity. This case may have been available on the
pleadings and the evidence before the trial judge but since it was not the focus of the trial
submissions, the majority of the trial judges reasons discussed the alleged undertaking to
finance the entire Hevron Heights project. Only towards the end of his reasons, the trial judge
discussed the issues of misrepresentation and non-disclosure.
However, his findings on these issues, as summary as they may appear to be, flowed from
his previous assessment of the evidence and his findings thereon. His findings on
negligence/misrepresentation and non-disclosure were based on his assessment of the evidence
and his impressions of the credibility of the witnesses and I can find no compelling reason to
overturn these findings.

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23. A summary of the case now argued on appeal is that Deslauriers had indicated to GAM
that some further financing may have been required for the project. Deslauriers alleged that
GAM represented to them that the only difference between GAM and a large bank was that
GAMs loans could not be repaid before the expiry of 1 year. This, Deslauriers alleged, was a
negligent statement and/or a material misrepresentation since GAM had a smaller lending
capacity than a large bank. Further, GAM should have revealed their limited lending capacity to
Deslauriers (the non-disclosure point). As a result of the negligence/misrepresentation/non-
disclosure, Deslauriers pursued further financing from GAM around December 2008 instead of
actively seeking it elsewehere. After December 2008, a financial meltdown in Trinidad &
Tobago meant that Deslauriers could no longer get further financing for the project and as a
result the project could not be completed, thereby causing loss to Deslauriers.
This new argument is unsustainable on this appeal.

There was no negligence and/or misrepresentation as alleged

24. I will deal with the case of negligent statement and misrepresentation together, since they
arise out of the same facts. I will refer to these arguments collectively as misrepresentation.
The case for misrepresentation is based on oral statements allegedly made to Mrs. Deslauriers by
2 agents of GAM. These agents were one Mr. St Cyr and Mr. Leon Ramdeen. The statements
were to the effect that the only difference between the large banks and GAM was that GAMs
loans could not be repaid before one year from the receipt of funds. This is how the represention
was pleaded19 and how Mrs. Deslauriers stated it in her witness statement.20
Mr. Ramdeen denied that either he or Mr. St Cyr made such a statement. Mr. St Cyr did
not give a witness statement nor did he testify at the trial. Mr. Ramdeen was GAMs only
witness. Mr. Ramdeen stated that Mr. St Cyr had introduced Deslauriers to Mr. Ramdeen to be
the point person for the intended loan. Thereafter, Mr. Ramdeen acted as GAMs agent for the
intended loan since Mr. St Cyr had no experience in this particular field. Contrary to Mrs.

19
See Defence at [16] and [20]
20
See eg. Witness Statement of Leonora Deslauriers at [11],[13],[14] and [16]

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Deslauriers testimony, Mr. Ramdeen indicated that all his dealings with Deslauriers were at
GAMs offices. He reiterated this position several times in cross examination.
On the issue of misrepresentation, Mr. Ramdeen stated that In so far as Mrs.
Deslauriers refers to the fact that I never told her that there were many differences between us
and the banks, that also is not trueI told her specifically that GAM was not a bank but an
Asset Management CompanyMr. Ramdeen also told her some of the main differences
between GAM and the large banks were that GAM was not allowed to lend money unsecured,
was not allowed to accept deposits nor to lend money for less than 1 year. 21 This evidence was
not shaken in cross examination.
The trial judge had this evidence before him and he heard and saw Mr. Ramdeen and
Mrs. Deslauriers give evidence. He chose to believe Mr. Ramdeens evidence and to disbelieve
Mrs. Deslauriers. As the Privy Council has said not to have seen the witnesses puts appellate
judges in a permanent position of disadvantage as against the trial judgeif his estimate of
the man forms any substantial part of his reasons for his judgment the trial judges conclusion
of fact shouldbe left alone.22
I see no reason on the evidence to overturn the trial judges preference for Mr.
Ramdeens evidence in support of GAMs case and his rejection of Deslauriers case of
misrepresentation.

25. Further, the trial judges assessment of the evidence is consistent with other evidence and
findings in the case, namely that GAM did not undertake to finance the project, and that
Deslauriers represented to GAM that they would fund the balance of the project through other
means.
The trial judge accepted Mr. Ramdeen as a credible witness and Mr. Ramdeens evidence
was that it was Deslauriers who approached GAM for a loan to refinance their indebtedness to
Republic Bank Ltd. That is all that GAM agreed to do. In fact, in cross-examination, Mrs.
Deslauriers even accepted that this was the case.23 Also, the trial judge accepted the evidence of
Mr. Ramdeen, that he had been told that the balance of the project was being funded

21
See Witness Statement of Leon Ramdeen at [36] 1)
22
See See Beacon Insurance Company Limited v Maharaj Bookstore Limited op cit at [14]
23
See Notes of Evidence at page 62

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otherwise through some other means and he accepted the same as being the truth.24The trial
judge was therefore entitled to conclude that further financing was not part of the
consideration and therefore the Defendants (Deslauriers) cannot pray its failure in aid.25 That
being the case, The lending limit of the Claimant (GAM)was of no relevance to the loan
granted26
26. Put another way, Deslauriers only requested the loan for the specific purpose of
refinancing their indebtedness to Republic Bank and not for the additional purpose of financing
the project. Also, GAM was only lending, and actually lent, the $18.6 million required for this
specific purpose. Deslauriers was going to fund the balance of the project. Therefore, any
representation about GAMs lending capacity was immaterial and could not reasonably have
induced Deslauriers to enter into the loan transactions.27 Further, since there was no allegation
that GAMs bridging loan was not sufficient to pay off the Republic Bank indebtedness, any
alleged misrepresentation about GAMs lending capacity caused no loss to Deslauriers.

The case of non- disclosure is not sustainable

27. The case of non-disclosure is not sustainable on this appeal. I say so for the following 3
reasons.
i. The lending limitation of GAM was immaterial to the loan transaction.There was
no duty to disclose any such lending limitation based on the relationship between
the parties.
ii. The relationship between GAM and Deslauriers did not create a duty of
disclosure.
iii. The findings of the trial judge were justified on the totality of the evidence before
him.

24
See Judgment of Rahim J at [39]
25
See Judgment of Rahim J at [38]
26
See Judgment of Rahim J at [67]
27 th
See Chitty on Contracts: General Principles 30 ed at paras 6-032, 6-036, 6-037

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 (i) The Lending limitation was immaterial to the loan transaction

28. After considering the evidence in the case, especially so the testimony of the witnesses,
the trial judge found that there was no agreement or consideration of financing beyond the $18.6
million that GAM provided to Deslauriers to repay the debt due to Republic Bank Ltd. Further,
that Deslauriers had undertaken to source any further funding for the project elsewhere. Given
these findings, any limitation on GAMs capacity to provide further finding for the project was
an irrelevant or immaterial to the loan transaction.. Further, the trial judges findings that
Deslauriers placed no reliance on a lending limitation in their dealings with GAM and hence
were not induced to enter the loan transaction based upon GAMs lending capacity, are well
justified.
I see no reason to overturn these findings.

30. If the lending limitation of GAM was not relevant or material to Deslauriers in their
dealings with GAM there was no duty on GAM to disclose the same to them. Further, since
Deslauriers placed no reliance on it, they suffered no loss from GAMs alleged failure to disclose
it to them.

31. In oral submissions, Counsel advanced an argument that was an extension of this non-
diclosure issue. Citing Chitty on Contracts,28 Counsel argued that a partial non-disclosure may
amount to a misrepresentation. Assuming that the trial judge was correct to find that Mr.
Ramdeen made the disclosures about GAMs lending business as stated in paragraph 24 above,
Mr. Ramdeens failure to advise Deslauriers about GAMs lending limitation was a partial non-
disclosure amounting to a misrepresentation since it implied that GAM would lend more to
Deslauriers if needed, when this was not the case.

32. On the present facts, this argument is without merit.

33. As I stated at paragraphs 29 and 30 above, I accept the correctness of the trial judges
findings that (a) there was no agreement or consideration of financing beyond the $18.6 million
for Deslauriers to repay the debt due to Republic Bank and (b) Deslauriers had undertaken to
source any further funding for the project elsewhere. Therefore, any limitation on GAMs
28 th
Chitty on Contracts: General Principles 30 ed at paras 6-017

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lending capacity was an irrelevant or immaterial consideration to the loan transaction. Further,
Deslauriers placed no reliance on any lending limitation of GAM in entering the loan transaction
and hence suffered no loss from this alleged partial non-disclosure.

(ii) The relationship between GAM and Deslauriers did not create a duty of
disclosure.

34. The trial judge found that GAM did not act as a lender who actively pursued Deslauriers
for the business of financing Hevron Heights. As Mr. Ramdeen testified, it was Deslauriers who
came to GAM for the specific purpose of financing of their indebtedness to Republic Bank Ltd.
Further, Mrs. Deslauriers stated in cross-examination that she had more than 30 years
experience in the development business in Texas and in Trinidad.29 In this case, the relationship
between GAM and Deslauriers was one of ordinary lender and borrower. In such a case, there
was no special duty of disclosure. Each party was entitled to serve its own interests and to expect
that the other party was doing the same.30

35. Once GAM fulfilled its agreement to lend $18.6 million to Deslauriers, GAM was under
no further duty to reveal any limitation on its lending capacity to Deslauriers. GAM was entitled
to secure its own interests and to assume that Deslauriers were doing the same.

36. Deslauriers now contend on this appeal that this was a situation of, or akin to, advisory
bank and client. In such a case, an advisory bank was under a duty to give the client full and
frank disclosure of all factors that could potentially affect the transaction.31 They contend that
GAM should have informed Deslauriers of its lending limitation so that they could properly
appreciate the full consequences of the loan arrangement. The trial judge rejected this case.
Deslauriers case is premised on the assumption that GAM was acting as, or akin to, an
advisor bank. This assumption though arguable, is not in keeping with the evidence and the trial
judges findings that it was Deslauriers who sought financing for the specific purpose of
refinancing their debt due to Republic Bank Ltd. GAM did not actively pursue them to finance

29
See Notes of Evidence at page 61
30
See eg. Baldwin v Daubrey [2006] CarswellOnt. 5783 at [15]
31
See eg. ING Bank NV v Ros Roca SA [2011] EWCA Civ 353

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the Hevron Heights project. Further, it was Deslauriers who indicated that they would finance the
balance of the project themselves and that they were experienced in the development business.
These facts and findings negate any suggestion of GAM undertaking any special role such as an
advisor bank, that would move the relationship between the parties beyond that of
lender/borrower into a fiduciary relationship requiring utmost good faith. The findings of the trial
judge were well justified on the facts.

37. Also, given the trial judges findings, there can be no sustainable argument that GAM
was being unfair or dishonest in their dealings with Deslauriers. GAM as a lender was securing
its own interests in respect of the limited transaction of providing a loan for Deslauriers to
refinance their indebtedness to Republic Bank Ltd. They were also rightly entitled to assume that
Deslauriers (as borrowers) were doing the same, in an arms-length transaction.
Therefore, the statements of the trial judge at paragraphs 67 -69 of his reasons (where he
was dealing with the issue of non-disclosure) that Mr. Ramdeen did not engage in misleading
conduct, are quite justified.

(iii) The findings of the trial judge can be justified on the totality of the evidence
before him.

38. A summary of the case of non-disclosure as pleaded is that GAM should have disclosed
its lending limitation to Deslauriers in sufficient time before December 2008 and after
December 2008.32 GAM failed to do so and this led Deslauriers to believe that GAM could
possibly have granted them further financing for the project when this was not so. The reference
to December 2008 in the pleadings, suggested that this may have been the time that the
disclosure should have been made. However, because of the open ended nature of the pleading, it
is possible that the allegation referred to disclosure from the beginning. In either case, the trial
judges findings negates this new argument. As I stated before, the trial judge found that GAM
never represented or agreed to provide financing beyond the $18.6 million loan in October 2007
and that Deslauriers undertook to finance the rest of the project. Therefore, any alleged case
based on a representation to or a misleading of Deslauriers to believe that they could get further
financing, is not sustainable.
32
See Counterclaim at [34] and [36]

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 However, Deslauriers argue that the E-mail correspondence does disclose such a case.
Assuming that this case is open to Deslauriers, the judge did consider the E-mail correspondence,
but he also correctly considered the witness statements, the cross-examination and his overall
impressions of the credibility of the witnesses, and he then rejected this case that is now being
pursued. In so doing the judge was acting well within his remit and I can find no valid reason to
reverse his findings on the totality of the evidence.

39. Even though the pleaded case refers to events, around December 2008, Counsel for
Deslauriers referred to correspondence going back to June 2007. I will therefore also consider
these documents in dealing with these submissions.

40. In June 2007, in the process of negotiations with GAM for a loan there was an exchange
of E-mails. In two of these E-mails Mrs. Deslauriers stated inter alia, If I need further
assistance later on the securitywill be worth a lot more and whatever you hold I would
like to have access to 75% if needed. Obviously I would only access it if needed to keep interest
down but would like to have the ability to if I had to. Is that acceptable?33 I also have to
construct the project and will need back up financing just in case.34 This, says Counsel, shows
that Deslauriers had from early on indicated that they might have required more financing from
GAM. Further, what was required was funding up to 75% of the value of Hevron Heights, which
was assumed to be worth $60 million. Therefore GAMs lending limitation of $20 million,
would have been a relevant factor to Deslauriers need for funding. In my judgment, when read
in the proper context this is not the meaning of the email.
At that time, there were negotiations for a loan of $15.5million. GAM required collateral
security of 75% of any proposed loaned. However, Mrs. Deslauriers was stating that they had
provided $21.8million in collateral security. This meant a possible loan of up to $16.35 million.
Hence her ability to get a loan greater than $15.5 million or up to $16.35 million. In fact, earlier
in the same E-mail of the 24th June, 2007, Mrs. Deslauriers did state this request for $16.35
million being 75% of the security provided to date.
Mr. Ramdeen affirmed that this was his understanding of the June E-mail
correspondence, namely, that the negotiations were for a proposed loan of about $15 million and

33 th
See E-mail dated 24 June 2007
34 th
See E-mail dated 26 June 2007

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the security that GAM would require. He also indicated that these negotiations went back and
forth till September 2007 when the parties agreed that the loan sum to pay off the indebtedness
of Deslauriers to Republic Bank was $18.6 million. Mr. Ramdeen also reiterated many times that
GAM never agreed to finance the project and that Deslauriers undertook to fund the rest of the
project. Further, in another Email dated 14th September 2007, Mrs Deslauriers used the same
wording with respect to the loan negotiations. When the collateral security held by GAM
increased to $24.8 million she stated you will be holding $24.8 million in collateral does that
mean we have access to up to $18.6 million (75%) if needed?
References in the Emails for access to 75% funding were meant to refer to 75% of
collateral provided by Deslauriers to date and not to 75% of the estimated value of the Hevron
Heights project from time to time.
Also, Deslauriers had previously indicated to GAM that they would be funding the
balance of the project from other sources. There was no issue of GAM providing financing
beyond 75% of the collateral security already provided by Deslauriers at that time.Mr.
Ramdeens evidence on this issue remained unshaken by cross-examination. The trial judge
believed Mr. Ramdeens version of events. He also disbelieved Mrs. Deslauriers version with
scathing remarks about her credibility. The trial judge assessed the E-mail correspondence with
the rest of the evidence and rejected Deslauriers version. Specifically, he found that in several
of the email correspondence, the language employed by the Second Defendant (Mrs.
Deslauriers) lacked clarity and certainty.35 The trial judge made full use of the advantage of
seeing the witnesses and comparing their evidence to the documentation. There is no reason to
say that his findings were plainly wrong.

41. Again, Counsel for Deslauriers referred to E-mail correspondence in September 2007.
Specifically Mrs. Deslauriers sent an E-mail to Mr. Ramdeen dated 14th Septebmer 2007
indicating her favour with a loan up to $18.6 million if needed. Mr. Ramdeen responded by E-
mail dated the same day stating that $18.6 million was no problem from a loan to value
perspective. My only constraint would be if I disburse an additional amount I would have to
run that additional amount for at least 1 year to ensure that I am within my guidelines.
Counsel argues that this indicated that GAM foresaw or ought to have foreseen that Deslauriers

35
See Judgment of Rahim J at [64]

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might require further advances for the project and that GAM was representing to Deslauriers that
its only lending limitation was that its loans had to be repaid after 1 year. However, Mr.
Ramdeen attributed this correspondence to the negotiations for a proposed increase in the loan
from $15 million to the final agreed figure of $18.6 million.36Hence any increase beyond the
originally agreed figures would also have to be advanced for a period of at least 1 year. At this
stage of the negotiations, there was no consideration of further financing for the project beyond
the newly proposed figure of $18.6 million, nor was there any need to differentiate between
GAM and a large bank. GAM was only going to advance up to $18.6 million for the purpose of
enabling Deslauriers to repay their indebtedness to Republic Bank and Deslauriers undertook to
fund the balance of the project by other means. Mr. Ramdeens evidence on this issue remained
unshaken by cross-examination. As I stated before, the trial judge chose to accept Mr.
Ramdeens evidence and to reject Mrs. Deslauriers evidence on this issue. He was certainly
within his remit in so doing and I cannot say that he was plainly wrong.

42. After these E-mails and the disbursement of the loan, Deslauriers kept up their schedule
of payments and even made enquiries about early payment of the loan. This continued until 2
important E-mails. On 17th November 2008, Mrs. Deslauriers sent an E-mail to Mr. Ramdeen
indicating that she was at a stage where she would need additional financing and was planning to
go to RBTT Bank for the same. She also enquired whether GAM would want to take over the
financing or to be paid off. On 26th November 2008, Mr. Ramdeen made it clear that GAM was
requesting that the loan be paid off.
At this stage, there could be no question of GAM representing or misleading Deslauriers
into thinking that they would or could grant her any further financing.

43. In spite of this, on 22nd December, 2008 Mrs. Deslauriers sent a letter as an attachment to
an E-mail requesting a further loan of $6 million. This was followed on 8th January 2009 by a
repeated E-mail request for $6millon and an immediate advance of $2million. On 9th January
2009 Mr. Ramdeen responded indicating that the request for $6million would not be entertained
because GAMs balance sheet was not large enough to accommodate this.
For the second time, GAM denied any request for further financing.

36
See Witness Statement of Leon Ramdeen at [13]and [14]

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44. Then in April 2009 for the first time (as Mrs. Deslauriers admits in cross-examination),37
Mrs. Deslauriers made an issue about the lending limitation of GAM.

45. Having been refused further financing by GAM in November 2008 and January 2009, it
is difficult to accept Deslauriers case as pleaded that around December 2008, they were led or
misled to believe that GAM would possibly grant them further financing. Even stranger, is that
after all this and her complaint about GAMs limited lending capacity in April 2009, Mrs.
Deslauriers could still allege that for 3 months after April 2009, GAM led her to believe that
further financing would be forthcoming.38
Little wonder that the trial judge disbelieved her evidence. Given this apparent conflict on
the evidence, the trial judge was entitled to find that Many of the assertions made by the
Defendants (Deslauriers) were inconsistent, contradictory, or otherwise not supported by the
documentary evidence.39 He was also justified to conclude that the impression of a
representation being made to Mrs. Deslauriers by GAM appeared to be of her own making to
say the least having regard to what appeared to be her unconventional method of expressing
herself in the relevant correspondence40; and he also dismissed that aspect of her case post
April 2009 as an afterthought.41

46. The E-mail trail was not dispositive of GAMs case. When read in the light of the other
credible evidence, the trial judge was justified in rejecting the case of the Deslauriers based on an
alleged possible request for further financing and the alleged non-disclosure of the lending
limitation of GAM. Conversely, he was free to, and did accept GAMs version of events and in
so doing, to dismiss the counterclaim and to give judgment to GAM on its claim. The trial judge
was not plainly wrong in his decision and I see no valid reason to overturn his findings on this
issue.

37
See Notes of Evidence at page 79
38
See Witness Statement of Leonora Deslauriers at [36]
39
See Judgment of Rahim J at [50]
40
See Judgment of Rahim J at [64]
41
See Judgment of Rahim J at [68]

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TWO OTHER ARGUMENTS ON APPEAL

47. In oral submissions, Counsel for Deslauriers made passing reference to 2 other points he
was pursuing on appeal. Briefly they were:
a) Unfairness in the cross examination;
b) A further misrepresentation to consider.

48. Both arguments are not sustainable on appeal and I will deal with them in a summary
way.

a) There was no unfairness in the cross examination

49. Counsel for Deslauriers submitted that the Court of Appeal should exercise some
scepticism over the trial judges findings because he did not give Mrs. Deslauriers the assistance
she should have received as a litigant in person. In fact, Counsel suggested that the trial judge
hindered Deslauriers case by his interventions during the cross examination.

50. This is an unfair criticism of the trial judges conduct of the cross examination. An
examination of the record shows that the trial judge bent over backwards to remind Mrs.
Deslauriers of her case and so keep her examination focused and relevant.
Additionally, one must bear in mind that it was the trial judge who inquired of
Deslauriers whether they wanted an adjournment because they did not have Counsel. He then
advised Deslauriers of the consequences of their own deliberate decision to proceed without
Counsel.
Further, Mrs. Deslauriers spent a full day cross-examining Mr. Ramdeen and at the start
of the second day of hearing, she affirmed her confidence that she was getting a fair trial.
Any suggestion of unfairness is unfounded.

51. Further, no issue is now being raised that the trial judge allowed inadmissible evidence or
refused to allow admissible evidence. Therefore, any alleged unfairness had no negative effect
on the trial.

b) There was no other misrepresentation to consider

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52. In oral submissions, Counsel for Deslauriers made fleeting reference to a point which was
not pleaded or suggested as a ground of appeal;
namely, that Mr. Ramdeens assertion that he was familiar with the construction industry
and its financing was a misrepresentation since he had never financed a multi-family
construction project like Hevron Heights. This evidence only came out in cross examination and
Counsel suggested that this new case could and should now be explored on appeal.
This argument is unsustainable for the following 3 reasons.

53. Firstly, such a case of misrepresentation was never pleaded. GAM never had a fair
opportunity to address this issue by evidence and/or argument before the trial judge.

54. Secondly, any such alleged misrepresentation was irrelevant to and/or not relied on by
Deslauriers. This is because, as was stated before, GAM was only lending $18.6 million to
refinance Deslauriers indebtedness to Republic Bank. Further, Deslauriers undertook to finance
the rest of the project themselves.
Any statement of Mr. Ramdeens familiarity or lack of familiarity with the construction
industry was immaterial to or not relevant in relation to the transaction with Deslauriers.

55. Thirdly, it does not follow that a lack of experience with the financing of multi-family
construction projects necessarily equates to unfamiliarity with financing in the construction
industry. Since this is Deslauriers (new) case, she would have had to lead some evidence to
prove the point. Admittedly, this was not done, and it would be unfair to pursue this case now.

CONCLUSION

56. In all the circumstances this appeal is dismissed. We will hear the parties on the question
of costs.

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...............................
G. Smith
Justice of Appeal

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