Common use of The Defendant’s Case Clause in Contracts

The Defendant’s Case. 90 The court next turns its attention to the Defendant’s case which was presented through ▇▇▇▇’▇ testimony. The court will first look at ▇▇▇▇’▇ AEIC before turning to his cross-examination testimony. 91 Unsurprisingly, ▇▇▇▇’▇ testimony gave a different take on the Settlement Agreement when compared with the Plaintiff’s version. 92 In his AEIC,51 ▇▇▇▇ claimed that although the parties had agreed on the key points of the settlement in principle by 11pm on 26 June 2018, the specific terms of the tenancy agreement between the parties and the possible renewal of the existing tenancies were not discussed. More so such issues as subletting, 50 Chew’s AEIC, Exhibit CHK–1. 51 ▇▇▇▇’▇ AEIC at para 37. indemnitors and security deposit.52 Third, the Settlement Agreement did not cover a scenario where the Plaintiff was unable to obtain approval for change of use of the Defendant’s property to a hotel. In such a case, ▇▇▇▇ deposed that the parties would have to discuss and agree on alternate terms on the five year renewal, discounted rent and contribution to renovation costs – all of which were only in the context of hotel usage of the Defendant Property (this third assertion was disputed by the Plaintiff). 93 Under cross-examination, however, ▇▇▇▇ conceded that the Settlement Agreement was signed with the underlying understanding that there was only a possibility of obtaining a hotel licence, but no guarantee of the same.53 Contrary to the denial in the Defence, ▇▇▇▇ admitted that the draft amended SOC for the 2016 Suit was indeed sent to his former solicitors on 20 June 2018. 94 ▇▇▇▇’▇ AEIC disclosed an event which neither ▇▇▇▇▇▇▇ nor ▇▇▇▇▇▇▇ referred to in their respective AEICS. He deposed54 that Chew in a WhatsApp message to him on 11 July 201855 told him that there was a potential Japanese buyer who was interested in purchasing both the Plaintiff’s and the Defendant’s Properties. Chew requested to market the Defendant’s property on an “as is” basis for $10▇. ▇▇▇▇ proposed an asking price of $13m as he believed $10m was below the market price. However, no sale materialised. I should add that during mediation the subject of selling the Defendant’s Property was discussed 52 ▇▇▇▇’▇ AEIC at para 43. 53 2/4/2020 NE 51, 52. 54 ▇▇▇▇’▇ AEIC at paras 50–52. 55 AB1167. but not pursued because the Defendant’s asking price of $17m was well above the market price (according to ▇▇▇▇▇▇▇).56 95 In relation to the draft tenancy agreement, ▇▇▇▇ deposed he felt (which sentiment he claimed ▇▇▇▇▇▇▇ shared) that lawyers could be dispensed with to save costs. Hence, he formally discharged his (former) lawyers in November 2018 and did not involve them in the draft tenancy agreements he sent to the Plaintiff. In this regard, it is noted that the Plaintiff’s draft TA (see [27] above) was drafted by its solicitors who act for them in these proceedings. The Plaintiff therefore had already incurred legal costs before the Defendant made its request to dispense with lawyers.

The Defendant’s Case. 90 [30] On the other hand, it was the defendant’s case that the term “net of income tax” was understood to mean that taxes would be deducted from the claimant’s salary and that was what was done with the claimant’s approval. [31] By letter dated 4 December 2013, the defendant wrote the claimant stating inter alia that - (i) When someone is legally contracted in a company in Trinidad and Tobago, taxes must be deducted from their salary. This is what had to be done with the claimant’s salary, so there was no short payment due. (ii) The court next turns its attention defendant had the right to terminate the employment contract before the expiry date for just cause, thus, no money was due for the remainder of the claimant’s contract period; (iii) All accrued vacation would be paid; (iv) If there was any additional benefit accrued by the end of the termination date of the contract, it would also be paid; and (v) The claimant would receive his last payment on 6 December 2013 his final work date. [32] According to the Defendantdefendant, during the claimant’s case which employment by the defendant, for a period in excess of some 12 years, the claimant never made any complaint or raised any issue with respect to his ability to read or understand his contract of employment. In fact, the defendant’s first contention was presented through that despite the defendant’s plea of poor understanding of the English language, he (the defendant) made no mention in his principal affidavit that the affidavit itself had to be read over to him to ensure that he understood its content. ▇▇▇. ▇▇▇▇’▇ testimony. The court will first look at ▇▇▇▇’▇ AEIC ▇, the Director of Finance at the defendant company, deposed in her response affidavit objecting to the claimant’s application, that there was no indication in the claimant’s principal affidavit in support of his application that the principal affidavit was read to the claimant or that he understood the contents of his affidavit despite his claim of limited understanding of written English. On that basis the defendant was of the opinion that the principal affidavit was not properly before turning the court and ought to be struck out in its entirety. [33] Notably, however, the claimant in his cross-examination testimony. 91 Unsurprisinglysupplemental affidavit sought to correct the error of the principal affidavit by deposing that at the time of signing the principal affidavit it was first and truly and audibly read over to him by his instructing attorney, ▇▇▇▇’▇ testimony gave a different take on the Settlement Agreement when compared with the Plaintiff’s version. 92 In his AEIC,51 ▇▇▇▇ claimed that although the parties had agreed on the key points of the settlement in principle by 11pm on 26 June 2018, the specific terms of the tenancy agreement between the parties and the possible renewal of the existing tenancies were not discussed. More so such issues as subletting, 50 Chew’s AEIC, Exhibit CHK–1. 51 ▇▇▇▇’▇ AEIC at para 37. indemnitors and security deposit.52 Third, the Settlement Agreement did not cover a scenario where the Plaintiff was unable to obtain approval for change of use of the Defendant’s property to a hotel. In such a case, ▇▇▇▇ deposed that the parties would have to discuss and agree on alternate terms on the five year renewal, discounted rent and contribution to renovation costs – all of which were only in the context of hotel usage of the Defendant Property (this third assertion was disputed by the Plaintiff). 93 Under cross-examination, however, ▇▇▇▇ conceded that the Settlement Agreement was signed with the underlying understanding that there was only a possibility of obtaining a hotel licence, but no guarantee of the same.53 Contrary to the denial in the Defence, ▇▇▇▇ admitted that the draft amended SOC for the 2016 Suit was indeed sent to his former solicitors on 20 June 2018. 94 ▇▇▇▇’▇ AEIC disclosed an event which neither ▇▇▇▇▇▇▇ nor ▇▇▇▇▇▇▇ referred to in their respective AEICS. He deposed54 that Chew in a WhatsApp message to him on 11 July 201855 told him that there was a potential Japanese buyer who was interested in purchasing both the Plaintiff’s and the Defendant’s Properties. Chew requested to market the Defendant’s property on an “as is” basis for $10▇. ▇▇▇▇ proposed an asking price of $13m as he believed $10m was below the market price. However, no sale materialised. I should add that during mediation the subject of selling the Defendant’s Property was discussed 52 ▇▇▇▇’▇ AEIC at para 43. 53 2/4/2020 NE 51, 52. 54 ▇▇▇▇’▇ AEIC at paras 50–52. 55 AB1167. but not pursued because the Defendant’s asking price of $17m was well above the market price (according to ▇▇▇▇▇▇▇).56 95 In relation to ▇▇▇▇, in the draft tenancy agreementpresence of his friend, ▇▇. ▇▇▇▇▇ deposed he felt (which sentiment he claimed ▇▇▇▇▇▇. The claimant further certified in his supplemental affidavit that the contents of the application for summary judgment and principal affidavit were explained to him by both his instructing attorney and ▇▇. ▇▇▇▇▇▇ sharedand that he understood same, after which he instructed his instructing attorney to proceed to file the application for summary judgment. Yet, the defendant was adamant that the principal affidavit could not be remedied by the claimant’s supplemental affidavit and maintained that it should be struck out by this court. [34] The defendant maintained that the claimant did understand the salary term of his contract and insisted that the claimant was indeed aware that taxes would be deducted from his salary, and further that those taxes were in fact so deducted and paid to the Board of Inland Revenue for well over 12 years with no complaint by the claimant. The defendant challenged the claimant to condescend to particulars and provide the basis upon which he (the defendant) came to the understanding and belief that lawyers could the term “P.A.Y.E” referred to “a savings plan for employees and that he would be dispensed entitled to claim the contributions made to the savings plan together with interest at the end of his employment”. To this end, the defendant stated that even if the claimant’s interpretation of the salary term of the contract is correct (which it strongly contended it is not), the fact that the claimant accepted his salary for 12 years without complaint can be seen as the claimant’s acquiescence to save coststhe salary term of the contract as interpreted by the defendant. Hence[35] In respect of the claimant’s allegation that there are other employees with contracts of employment with the defendant, he formally discharged who have not had income tax deducted from their salary and received their salary net of income tax per month, the defendant simply contended that other employees have different terms and conditions of employment which are negotiated personally to them. [36] Altogether, the defendant maintained that the claimant’s principal affidavit in support of his (former) lawyers in November 2018 and did application ought to be struck out as it was not involve them properly before the court. However, should the court consider that the principal affidavit should stand then it is submitted that the matter ought to proceed to trial as there were facts to be proffered to assist in the draft tenancy agreements he sent to interpretation of the Plaintiff. In this regard, it is noted that salary term in the Plaintiffclaimant’s draft TA (see [27] above) was drafted by its solicitors who act for them in these proceedings. The Plaintiff therefore had already incurred legal costs before the Defendant made its request to dispense with lawyerscontract.