Henry JA, Kerr JA, Zacca JA
```html THE CAYMARGE COURT OF APPEAL ATL NOTOWN， GRAND CAYMAN CIVIL APP EO11 OF 1991. T.HON RAI ONOURAI BEFORE THE ONOU. THE PRESIDENT MR. JUSTICE EDWARD ZACCA， P.C.， O.J. THE DELIBLE MR. JUSTICE KENNETH HENRY， J.A. THE& COI BLE MR. JUSTICE JAMES KERR， J.A. ： BETWEND SEA S AYMAN AR DEVELOPMENT LTD. AND： SEA W JOI MPANY LTD. THE COVENANT LTD. DES reLES P trial Mr. N LL， Q.C. and Ms. Cherry BRIDGES instructed by Ritch & Conol an appellant. MR. A NES for Respondent instructed by Maples & Calder. PRIL 14， 15， MAY 8， 9， DECEMBER 27， 1992. ZACCA This peal against a judgment in the Grand Court where the learn Judge made the following order： ORDER： (1) The Plaintiff has proved its claim； (2) The Plaintiff be granted an order for a declaration that the Cayman Covenant Ltd holds all its legal and beneficial is ```
```markdown interest in all that parcel of land comprising Registration Section West Bay Beach North, Block 10A Parcel 58 upon constructive trust for the benefit of the Plaintiff, Vista del Mar Development Ltd. absolutely; (3) The Cayman Covenant Ltd. do assign the contract of 2nd November, 1989 to Vista del Mar Development Ltd. upon the capital sum which has so far been paid plus the interest so far paid; (4) The C.I.$100.00 stamp duty on the assignment be deducted from the total sum which Vista del Mar Development Ltd. is to pay to the Cayman Covenant Ltd. (5) Seales and Company. Not to be paid its commission on the transaction; (6) The Plaintiff to have costs against Seales and Company and Cayman Covenant Ltd. The Defendants are the Appellants and the Plaintiff the Respondent in the case of Guill ```
```html One of recent developments is the Vista del Mar Complex on the North Sound North Vista del Mar he has purchased some 200 acres of land north for the Vista del Mar development. This block of land known as "Vista del Mar" is on the North Sound and it is planned to build prises and resort facility with a marina on this land. However, to this type of development it is necessary to have access to the sea. The portion of Vista Norte which touches the sea salt cliff a bluff through which it would be economically viable to cut an access channel. Access to the seas was therefore vital. The development of the Vista Norte land. Little Salt Creek which is South of Vista Norte could provide the necessary access. However, there were two parcels of land standing between the Norte and Little Salt Creek. The first parcel West Bay Block 10A, Parcel 43 which was then vested in the Government. However, there were proceedings in the Grand Court concerning this parcel of land. And as, how Executive Council in March 1987 had agreed to subdivide the land and to sell 1.5 acres to Vista del Mar, up to September 1989 the subdivision had not been effected. Freytag was concerned as to whether he would get access to Little Salt Creek. Parcel 43. Therefore, a second parcel of land registered as West Bay Beach Block 10A, parcel 58. The appeal concerns this parcel. Parcel 58 comprised 3.5 acres and was owned by Harold Watts who lives in Orlando, Florida, USA. Since 1985, Vista del Mar had been trying to buy parcel 58 through R.C. Bodden Ltd. Since 1987 little progress had been made because the government was concentrating on the purchase of parcel 43. ```
```html Desmany Seale, is the sole shareholder of the first Appellant compa Seal's and Company Ltd. He is also the sole shareholder of the Appellant company, The Cayman Covenant Ltd. Compa Sealeng and Ltd. is a real estate firm, dealing in the lesale of real estate and the management of prope ere are a r There and Seum ber of meetings between Freytag and Seales, the first the 15th September， udge. It wi Septe ecessary to summarise the facts as presented by Freytag evidenc e Seales. There were serious conflicts in the evidence on son sorsh h important issues which had to be decided by the trial promot over inv cn In hi Freytag stated that Seales visited his office on the laid ember 1989. Seales was planning a trip to the Far East ingl return the sale of land in Cayman. Seales was seeking the sh Septe slip of Freytag and asked for a contribution of h $10，0 meetir D estors in the Far East. poten l Freyt ing lane was impressed by Seales' presentation and asked h him t the following week. Seales returned to Freytag on ed thember， 1989， accompanied by his associate， Billy Culbeta del in attendance was Freytag's project manager， Charl y ar. ny At the nd ng Freytag explained his intentions regarding the ng Vistall rt. and and the importance of gaining canal access. He sugg Seales could earn the $10，000 sponsorship by ag tiid for Freytag. Parcel 58 owned by Watts was a purc rior po. J was suggested that in order to keep the price down hag the oag to was v the land should not be informed that the purchaser ti is Mar. as es it st st rt is wn ```
```html On the morning of 20th September 1989 Seales and Culbert were taken morning of the properties which were being developed by Freytag meeting Another meeting took place on 21st September 1989. Dingler was present was in Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt Freyt
```html ea. client 6 client of S In a te o Seales， Jennings referred to Watts as Seales， clie ns then Freyt， 1989 d left Cayman for Houston， Texas. Whilst there he recei ing jlephone call from Seales informing him that Watts was now a to "pu$175，000 for the land. Freytag alleges that he told Seale s at things on hold" until his return to Cayman on 29th octo ag g Wa's p On 30atts， er， 1989 there was another meeting between Freytag and S. in Seales' office. Seales was desirous of getting Freyt told free to using Seales' Company for the sale of Freytag's Sealperties. Freytag testified that he asked Seales about Vi. frland. Seales told him that he was interested in purch petits' land to build a house. nd. 's es how anyone could build a house on that land. Freytere wa Seales that he was acting for him and that Seales was now c' la with him and putting himself in a conflict of inter p： abeytag stated that Seales said "Never mind， I just though I the ld ask anyway". 98 e of dence was that no one could build a house on parcel 58. r， is no water， electricity， and no road within 3000 feet of th58 for de purchasing the land for himself and that his forge instructions to Seales was to put negotiations with Watts "on hold" it ill considered Seales to be his agent for the purcht ve parcel 58. The evidence disclosed that Freytag made notesea sk meeting of 30th October， 1989. ag is es las The e ag agebefore the trial Judge disclosed that on the 1st Novem om W， Seales telephoned Watts offering to purchase parce u ag$175，000.00 less seven per cent commission. This as Th vi uc 1 be ```
```html 7 offer in Cayman accepted by Watts. The land was to be purchased in the name as an Covenant Ltd. out put er， 1989 Freytag received a letter from Seales asking him ties fo. no writing an authorization for him to offer Freytag's prope ar sale. Freytag testified that he was so upset with Seale， the meeting of the 30th October that he did not respo se his letter. However， Seales continued to promote and adver bad of properties and he saw him often. April him On 2 Freytag visited Seales' office. In course of the conve and pr the asked about watts' land. Seales told him that a compa urchased the land. After much questioning Seales infor h that it was his Company which had purchased Watts' h land. eh： until testified that he was annoyed and left Seales' office name. oceeded to see his Attorney. Altho land was purchased by Seales on 2nd November， 1989 it was n den c2nd April 1990 that Freytag was aware that Seales had pe cont had pe cont the land. It is to be observed that Seales' wife signe was half of the Company and in doing so signed in her was maidessi Sealeed by Seales' wife in her maiden name. A caution on the land was registered on 2nd April， 1990 so1 evidence The etag nt lalso disclosed that it was not until December 1989 that spontract was signed for the purchase of the Government lands ey ey of Desmo gave evidence on behalf of the Appellants. His evid at variance with the evidence of Freytag on many ed impors s les. o ny nd rt In hime ti ce， Seales stated that in September 1989 he spoke with ur about his proposed trip to the Far East and requested $3，00 ot ot nc vi s ta th Fr nd 0 ```
The document appears to be a legal or business record detailing a transaction involving land. Below is a faithful transcription of the visible text, formatted using Markdown, HTML, and LaTeX as requested: ```markdown The firm of Freytag met in Freytag's office when he was asked to evaluate the Watts' land for sale. He agreed to this request and sent a letter to Watts in which he referred to Freytag as his attorney. In his letter, he included in the price, a seven percent commission. Watts agreed to sell the land for $125,000 but Freytag said the price was too high. Subsequently, Watts agreed to sell the land asking $175,000. Freytag agreed to purchase the land and Seales sent Freytag transfer forms and power of attorney forms. As the matter turned out, Watts changed his mind about the price and was not interested in selling the land. Seales testified that he was not interested in purchasing the land, it was too expensive. Seales informed Freytag that he would be interested in purchasing the land if Freytag was no longer interested. Freytag told him that buying the property would be a mistake. Seale Januar testified that he told Freytag that he was putting him on notice that he had mentioned to his lawyer he was interested in the property. He could not remember Freytag making any objection to his buying parcel 58. Seales denied that in any way referred to any conflict of interest and Freytag had now referred him to put negotiations "on hold". Seales stated that there was no connection between his trip to the Far East and the West Texas transaction. Between March and March 1990, Freytag asked him if he had heard if he had heard anything about the West Texas transaction. ``` This transcription captures the essence of the document, including the names, dates, and the legal and financial details of the transaction.
```markdown # Transcript of the Document In early April 1990, Freytag told Seales that he had acquired Government land adjacent to Vista Norte. The conveyance turned to Watts' land, and Seales told Freytag that he had left the property for himself through a Company and Freytag with a huff. J. Charl. was gigs, Attorney-at-Law, for Freytag, stated in evidence that as asked instructions about the purchase of the Watts' land able. In a letter to Seales concerning the transaction referred to Watts as Seales' client. He was subsequently instructed to cease work on the transaction because Watts was then seeking for a purchase price higher than a price which was agreed. He was of the opinion that the transaction had died. It appears that as far as the meeting on 30th October, 1989 was concerned, only two persons who could testify as to what happened were Freytag and Seales. The active party the Respondent was that at all material times Seales and Company, acting as its agent in the purchase of parcel 58. That the Respondent, through Seales, was in breach of its fiduciary relationship as such agent. The Respondent claimed a declaration that the benefit of the contract between Cayman Covenant Ltd. and Watts is held by Cayman Covenant Ltd. upon a constructive trust for Vista del Mar. In the alternative, a declaration that Cayman Covenant Ltd. holds all its legal and beneficial interest in parcel 58 upon constructive trust for Vista del Mar. The case of the Appellants was that no relationship of principal and agent existed between the parties and certainly not at the time of purchase of the land by Cayman Covenant Ltd. Seales was asked to enquire if the land was for sale. In any event, Seales informed Freytag that he intended to purchase the land and Freytag agreed. ```
```markdown ## Objection by Freytag on behalf of Vista del Mar There is no alternative defence to the effect that if there was a contrivance of Relievery it could be performed beyond the period of one year. The learned Judge was placed on Section 4 of the Statute of Frauds. The Learned Judge, after hearing evidence and submissions, made with reference to the alternative defence, "Respect to S. 4 of the Statute of Frauds, the learned trial Judge found no merit in the defence and in his reasons for judgment, para. 13 stated: This action is brought upon the agency agreement between Vista del Mar and Seales and Company. It is not brought on the proposed agreement for Vista del Mar to purchase parcel 58. The agency agreement was put into effect only after the agency agreement was put into effect at Sas Seales commenced making enquiries of Watts. Such agreement was to be performed, and was indeed performed, well within one year from its making." We agree with the finding of the learned trial Judge and held 1 of the Statute of Frauds cannot avail the defence. On behalf of the Appellants, Mr. Hill argued several grounds of appeal were:
The learned trial Judge erred in law in holding that the case turned solely on the credibility of the witnesses and in any event, erred in law in assessing the credibility of the witnesses in the following respects: ```
```markdown # 11 (1) The learned trial Judge misdirected himself on the evidence and failed to take account of the inconsistencies in the Plaintiff's case which appear in the evidence of Gil Freytag and Charles Dingler, the documentary evidence produced and the Plaintiff's pleadings; whereas the evidence of the Defendants was consistent with the documentary evidence produced and the Defendants' pleadings. (ii) The learned trial Judge misdirected himself on the evidence and failed to draw the proper inferences from the evidence of Gil Freytag's conduct in relation to the acquisition of parcel 58 between the years 1985 and 1987. (iii) The learned trial Judge misdirected himself on the evidence relating to the date when Gil Freytag knew that the sub-division of West Bay Beach North Block 10A, Parcel 43, into two parcels had taken place in furtherance of the agreement between the Government and Vista del Mar. (iv) The learned trial Judge misdirected himself on the evidence and failed to draw the reasonable inferences therefrom which misdirections led him to conclude that Gil Freytag was not discredited on cross-examination and that Desmond Seales' story to the Court was unlikely and untrue; in particular the learned trial Judge failed to draw reasonable inferences from the evidence in respect of the following matters: (a) the date on which any agreement between the plaintiff and the First and Third Defendants took place; ```
12 (b) the consideration for any such agreement; (c) whether or not the proposed promotional trip to the far East by the First Defendant was to cost $3,000.00 or $10,000.00; (d) whether the consideration for any agreement included the proposed promotional trip; (e) the effect of the letter of 15th October 1989 from Watts rejecting Gil Freytag's offer transmitted by the First Defendant and Third Defendants and the unchallenged evidence that Gil Freytag told the third Defendant that he had no intention of paying Watts $175,000.00 for parcel 58; (f) Gil Freytag's version of the conversation between himself and Seales on 30th October 1989 in light of the notes allegedly taken by him and as to the venue of the meeting on the 30th October 1989; (g) whether or not a home could be built on parcel 58 in view of the evidence that some of the land comprised high ground and could be built on upon obtaining approval from the Planning Authorities; (h) whether or not the Third Defendant intended to enrich himself when the when the Second Defendant purchased the land from Watts in light of the unchallenged evidence that Gil Freytag knew by this
13 time that the parcel through which access was to be gained by Vista del Mar had been subdivided off by the Government and the unchallenged evidence that Seales made no attempt at any time to resell parcel 58 to Gil Freytag or to anyone; (i) whether or not the First and Third Defendants were or to become the agents of Watts and if so, when and under what circumstances; and further, whether or not the First Defendant's proposal that the Third Defendant execute the transfer forms under a power of Attorney from Watts were ancillary to its duties to purchase the land on behalf of the Plaintiff; (j) whether or not Gil Freytag's attorney, Mr. Charles Jennings' reference to Watts as Seales and Company's client was a mistake.
The learned Trial Judge misdirected himself on the evidence relating to the terms of the alleged agency; in particular that there was an agreement between the Plaintiff and the First Defendant that the First Defendant purchase parcel 58 from Watts on behalf of the Plaintiff.
The learned trial Judge, having found that the alleged contract of agency had been performed ered in Law in failing to determine when the performance actually took place and the effect of performance on the alleged contract of agency.
The learned trial Judge further misdirected
14 The learned trial Judge erred in Law and misdirected himself and failed to draw the reasonable inferences therefrom, that even if a contract of agency did exist between the Plaintiff and the First and Third Defendants, the learned trial Judge failed to find that the said contract of agency was terminated by performance and by Gil Freytag's refusal to pay $175,000.00 to Watts for Parcel 58 and further the learned trial Judge erred in Law in holding that the First Defendant and Third Defendant had a fiduciary obligation towards the Plaintiff after the alleged agency had been performed and/or terminated or when the Second Defendant purchased the land from Mr. Watts.
The learned trial Judge erred in Law and misdirected himself and failed to draw the reasonable inferences therefrom as to the applicability of section 4 of the Statute of Frauds upon any alleged contract of agency which was created or came into existence on 30th October 1989 and continued thereafter having regard to the evidence of Gil Freytag that he did not intend to purchase Parcel 58 at the price of $175,000.00 and that any action in the future was to come from him, that is to say, no offer could be made on the Plaintiff's behalf unless Gil Freytag gave the First and Third Defendants instructions so to do.
The learned trial Judge erred in Law in granting the Plaintiff a declaration of constructive trust in respect of the agreement between the Second Defendant and Watts in view
```markdown # Summary of Mr. Hill's Sessions The sessions of Mr. Hill may be summarised thus: 1. The learned trial Judge was in error in finding that Mr. Freytag was a credible witness having regard to many inconsistencies in the evidence and specifically having regard to the documentary evidence. 2. There was no agency. 3. If there was an agency, this was terminated on the 30th October 1989. 4. There was no fiduciary relationship between the Plaintiff and the First and Third Defendants. Two matters had to be decided by the trial Judge: a) Did Freytag tell Seales to put negotiations "on hold" on 30th October 1989? b) Did a fiduciary relationship exist prior to and subsequent to the 30th October 1989? In considering the evidence relating to the meeting of the 30th October the learned trial Judge made the following observations on p.5 of his judgement: ```
```html 16 " Freytag who is a habitual note taker, was as de assisted in his recollection of this part of 1000 the evidence, as with his other evidence, by a contemporaneous note he made of the meeting." 1 stro Mr. Hect the Mr. Hect the wgly urged the Court to find that the credibility of negotibr Freytay'1705 destroyed by the fact that in his note of the 30th Octob Octob erester there is not recorded any mention of putting negot negotiations "on hold". He argued that the evidence of Seales to ibr the e negot that he was never told to put negotiations "on hold" of ev and to esrag told him that the price was too high and he was not iudge sl not judge sl in purchasing the parcel of land at the price, shoul shoul pen accepted by the learned trial Judge. Mr. J Mr. Judge'smitted that the findings of facts of the learned trialhe In W would not be disturbed on appeal. There was a conf conflict of evidence, the resolution of which turned largely on an vidence, assesser to credibility. The Court should only interfere with a ass trial to findings of facts if such findings are plainly unsoun unsoun of f an an Watt or Thomas v. Thomas [1947] A.C. 484, Lord Lord in considering the duty of an Appellate Court in in regard decision of a Judge sitting without a jury on a considering question of fact, stated at p. 487: "I do not find it necessary to review the many decisions of this House, for it seems to me that the principle embodied therein is a simple one, and may be stated thus: I. Where a question of fact has been tried by a nt ag nt ag ff ff jud jud er er judge without a jury, and there is no question of ha il ha il misdirection of himself by the Judge, an Appellate ic ic nd on court which is disposed to come to a different sm sm J conclusion on the printed evidence, should not do Th J Th J so unless it is satisfied that any advantage d d io io ```
```html 17 enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge's conclusion; II. The Appellate Court may take the view that without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence; III. The Appellate Court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at nt meet large for the Appellate Court. It is obvious that lear the value and importance of having seem and heard ce to l the witnesses will vary according to the class of neg case, and, it may be, the individual case in nd on question". It is that the meeting of the 30th October, 1989 was an important recing in so far as it related to the evidence of putting negotiations "on hold". The trial Judge is making refe r t Freytag as a habitual note-taker, observed that Freytag had assisted in his recollection of the events which transn of a the 30th October, 1989 by the note which he had ssing day. ff re The to put je, however, in his findings, makes no reference to the f ha the note did not disclose that Freytag had told Seale negotiations "on hold". In as the credibility of Freytag, in particular as to whether 1 told Seales to put negotiations "on hold", the omissen note of such an important material particulars should ta ad the attention of a trial Judge. The case for the Plain pi ced heavily on the evidence of Freytag that he told Sealel ri negotiations "on hold". io ac se ds ors ti ```
```html 18 It is the basis of this aspect of the evidence that the Respondent alleges that the fiduciary relationship continued after the 31st December, 1989. In our view the failure of the trial Judge to consider the absence of the evidence of Freytag, was a serious error of the importance of the evidence. This is not to say that the trial Judge would have come to the same conclusion as to the credibility of Freytag, if he had taken into account the absence of the note "to put negotiations on hold". The absence of such a note should have led the trial Judge to apply the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the trial Court to the principle laid down by Lord Thank you Watt v. Thomas and in particular the third principle that the failure of the trial Judge in these circumstances would not have interfered with the findings of the </
The text on the page can be transcribed as follows: --- **19** The law at the time considered the price for the time being. He considered the price at $125,000.00 for the land. An offer of $100,000 was at first accepted but as events turned out, Watts' changed and was now demanding $175,000.00 for the land. Freitag testified that since October 30th, 1989, he never spoke with witnesses about Watts' land until April 2nd, 1990. The day evidence which is referred to by the learned trial Judge is based on the evidence of Seales that he was not told to put things on hold. On April 1st, Freitag expressed a desire to offer more than $100,000 for Watts' land. In the circumstances, we are of the view that this Court can and should agree with the findings of the trial Judge on the question of whether Seales was told to put negotiations "on hold." According to the evidence, the reasonable inference to be drawn from all the evidence is that Freitag did not tell Seales to put negotiations on hold. In the circumstances, if there was a fiduciary relationship up to the evidence, it is clear that Freitag did not put negotiations on hold. --- This transcription maintains the original text and structure as closely as possible.
```html 30th October 1989， this fiduciary relationship ended on the 30th October 1989. Therefore there was no breach of fiduciary relationship existing on November 2， 1990 when Seales， through his company， Watts' land. We prts lanc consider what the position would be if in fact Freytag had Seales to put negotiations "on hold". There is a preponderance of evidence to show that Freytag introduced the W to Seales and instructed Seales to negotiate the purchas e of land. Seales regarded Vista del Mar as his client and wanted to represent Vista del Mar in the negotiations to purchase land. The learned Judge was correct in finding that an agency had been created between Freytag and Seales up to 30th October 1989. The question for decision is whether the agency continued after the 30th October， 1989 on the assumption that Freytag instructed Seales to put negotiations "on hold". Was there an agency continuing after 30th October 1989? In finding that the agency was not terminated the learned trial Judge reasons at page 12 stated： "I do not believe that Freytag， or Vista del Mar， terminated the agency； neither do I believe Freytag indicated he was no longer interested in parcel 58； rather I accept that he instructed Seales， for any reason， to put negotiations "on hold"， thereby continuing the agency agreement. I do not believe that Freytag did not express disapproval at any time Seales' declaration that he was interested in the parcel of land for himself； rather I believe he firmly told Seales that he ```
21 did not approve of Seales putting himself into competition for the same parcel of land. It is trite law that an agent must employ the materials and information obtained by reason of his agency solely for the purposes of the agency and must not use them himself in unfair competition with his principal. Similarly he must not put his duty as agent in conflict with his interest and must not enter into any contract likely to produce that result without his principal’s assent. Seales and Company could not act for Watts or undertake anything which brought about a conflict of interest. Most certainly Seales and Company could not deal itself with parcel 58, without Vista del Mar’s permission; neither could Seales, who was acting for Seales and Company, so deal with parcel 58. From the evidence that is exactly what Seales did. The reason why he did so does not affect the outcome of the suit, but I am satisfied in principle, it was not for the purpose of providing himself with land upon which to build to a home. It was because of what he had been told by his principal. This was a speculative purchase and Seales intended thereby to enrich himself. In determining whether a fiduciary relationship existed after the 30th of October 1989, reference may be made to the speech of Lord Upjohn in Boardman v. Boardman [1967] 2 A.C. 46.
```html In the R. case of Industrial Development Consultants Ltd. v. Cooley [1972] spec. 443, Roskill, J at p. 449 referred to Lord upjohn W.Lh and stated: "A more recent statement of the highest authority will be found in the speech of Lord Upjohn in Phipps v. Boardman [1967] 2 A.C. 46，123 onwards： "Rules of equity have to be applied to such a great diversity of circumstances that they can be stated only in the most general terms and applied with particular attention to the exact circumstances of each case. The relevant rule for the decision of this case is the fundamental rule of equity that a person in a fiduciary capacity must not make a profit out of his trust which is part of the wider rule that a trustee must not place himself in a position where his duty and his interest may conflict. I believe the rule is best stated in Bray v. Ford [1896] A.C. 44，51 by Lord Herschell，who plainly recognised its limitations： "It is an inflexible rule of a court of equity that a person in a fiduciary position，such as the respondent's，is not，unless otherwise expressly provided，entitled to make a profit； he is not allowed to put himself in a position where his interest and duty conflict. It does not appear to me that this rule is，as has been said，founded upon principles of morality. I regard it rather as based on the consideration that，human nature being what it is，there is danger，in such circumstances，of the person holding a fiduciary position being swayed by interest rather than by duty，and thus ```
23 It has, therefore, been deemed expedient to lay down this positive rule. But I am satisfied that it might be departed from in many cases, without any breach of morality, without any wrong being inflicted, and without any consciousness of wrong-doing. Indeed, it is obvious that it might sometimes be to the advantage of the beneficiaries that their trustee should act for them professionally rather than a stranger, even though the trustee were paid for his services. It is perhaps stated most highly against trustees or directors in the celebrated speech of Lord Cranworth L.C. in Aberdeen Railway v. Blaikie [1854] 1 Macq. 461, 471, where he said: "And it is true of universal application, that no one, having such duties to discharge, shall be allowed to enter into engagements in which he has, or can have, a personal interest conflicting, or which possibly may conflict, with the interests of those whom he is bound to protect". The phrase "possibly may conflict" requires consideration. "In my view it means that the reasonable man looking at the relevant facts and circumstances of the particular case would think that there was a real sensible possibility of conflict; not that you could imagine some situation arising which might, in some conceivable possibility in events not contemplated as real sensible possibilities by any reasonable person, result in a conflict".
```html 24 And at J. 451, Roskill, J. stated: "Later Lord Upjohn stated four propositions as follows, at p. 127： 1. The facts and circumstances must be carefully examined to see whether in fact a purported agent and even a confidential agent is in a fiduciary relationship to his principal. It does not necessarily follow that he is in such a position. 2. Once it is established that there is such a relationship, that relationship must be examined to see what duties are thereby imposed upon the agent, to see what is the scope and ambit of the duties charged upon him. 3. Having defined the scope of those duties one must see whether he has committed some breach thereof and by placing himself within the scope and ambit of those duties in a position where his duty and interest may possibly conflict. It is only at this stage that any question of accountability arises. 4. Finally, having established accountability it only goes so far as to render the agent accountable for profits made within the scope and ambit of his duty". What Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti di ol ia Freyc tl ai ti
```html 25 Freytag had indicated that the price was too high. This price was far in bear of what Freytag considered a reasonable market prices except in mind that Freytag was expecting to purchase the Governd t Freyt emittance to purchase Watts' land at such a high price. who wa After la 30， 1989， it was certainly open for Seales to sell Wattso do so. any purchaser other than Freytag if Watts requested him time by V Equally， it was open to Watts to sell his land to anyone interested in purchasing it. neg Puttio se ratiations "on hold" did not preserve the right of purch， purc hista del Mar. Sealestur sed the land at what could be regarded as fair market valueen price above market value. There is no evidence that by the id any as he would be able to enrich himself. He did not atten remml the land to Freytag after his Company purchased it. that lent As ev duned out， Freytag was able to conclude the purchase of the 2nd Apr'ts land. There is no evidence that the Plaintiff suff we riloss by reason of the last opportunity to acquire the prope lent acwver， this was not an issue before the trial Judge. If a duty existed after the 30th October， 1989 the Respe viewuld have been entitled to a judgment. clusi Assur ate Freytag did tell Seales to put negotiations "on hold and that in so saying he terminated the agency. His subse ag- tions showing a total lack of interest in the land until n 1990 tended to support such an interpretation. In ouas， hen Seales purchased the land on the 1st November， 1989 o l no fiduciary duty to Freytag， the agency having been termare ipt， o rer ： o In cojov lis we find that Freytag did not tell Seales to put put ```
```html 26 negotiations "on hold" at the meeting on 30th October, 1989. That s h Octocy which existed prior to that date was terminated on the 3 e agber, 1989. nces In the tionative, even if Freytag had told Seales to put negot, 1989 "on hold", the agency which existed up to the 30th Octob, ta was terminated as putting "on hold" in the circuea and th of this case was not sufficient to continue the agency al Jude therefore no fiduciary relationship existed after the 30ths wi 1989. For t ons the appeal will be allowed and the judgment of the t nte set aside. There will be judgment for the defe nth costs below and the costs of the appeal to the appel be agreed or taxed. ```
```html -27- em and th agree appea ea I have the Draft of the judgment of Zacca, P. I am in agreement with his reasoning and conclusion that the appeal be allowed.