Alison Christie Binger v Michael Ranger

• Jurisdiction: Jamaica
• Judge: P.A. Williams, J.
• Judgment Date: 05 February 2014
• Neutral Citation: [2014] JMSC Civil 9
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2010 HCV0201
• Date: 05 February 2014

[2014] JMSC Civil 9

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2010 HCV0201

Between

Alison Christie Binger

Claimant

and

Michael Ranger

Defendant

Mr. B. Frankson and Miss. J. Hammit instructed by Frankson and Richmond for the Claimant.

Miss. C. Johnston and Miss. S. Williams instructed by Townsend , Whyte and Porter for the Defendant.

Division of Property — Unmarried couple — Parties meeting whilst Defendant still married to another — House constructed on land owned by Claimant — Defendant using NHT benefits to assist in construction — Defendant assisting in the construction — Whether Defendant acquired interest in house by virtue of constructive trust.

P.A. Williams, J.

5 l. The parties in this matter were in a relationship that lasted at least five (5) years. During the period they were intimately involved, a house was built on lands owned by Alison Christie Binger, the claimant. There is no dispute that Michael Ranger, the defendant, assisted her by providing his National Housing Trust Points valued at one million five hundred thousand dollars and gave consulting/technical advice and guidance as an electrical engineer, in seeing the house through to its completion in 2006. The claimant then had her dream house but the relationship had come to an end by 2009.

2 The defendant had been living in the house at that time and his refusal to leave was based on his assertion of having an interest in the house. The claimant turned to the courts and filed a fixed date claim form on January 20, 2010. She therein is seeking the following orders inter alia:

• 1. A declaration that the claimant is the fee simple owner and is entitled to sole possession of all that parcel of land situated at 2 Aguilar Road, Kingston 9 in the parish of Saint Andrew registered at Volume 1249 Folio 749 of the Register Book in the Office of Titles.

• 2. An injunction restraining the defendant whether by himself, his servants and/or agent or otherwise from entering, loitering, destroying and/or dealing with the said aforementioned property.

3 An interim injunction was obtained on the 22 ^nd of January 2010 and this was extended until November 2010. The defendant was restrained from any dealings with the property. He filed a notice of application for Court Orders on May 6, 2010 seeking the following Orders, inter alia:

• 1. A declaration that the Defendant holds the property on trust for the Claimant/Respondent and the Defendant/Applicant in equal shares or alternatively in shares which are proportionate to their contributions to the construction or alternatively in such shares as the court shall determine.

• 2. In the further alternative, a declaration that the Defendant/Applicant is an equitable tenant in common of the said premises situate at 3 Aguilar Road, Kingston 9.

• 3. An account or inquiry as to the beneficial ownership of the property.

• 4. An order for the sale of the property pursuant to Rule 55 of the Civil Procedure Rules with the proceeds being distributed pursuant to the trust.

• 5. An order that the Claimant pays the defendant mesne profits and/or rent for the time he was kept out of his own home.

The relationship

4 Now that the intimacy is over, the parties are unable to agree as to when it began. She said it began in 2003, he said it was in 2002. It is undisputed that they lived in the same apartment complex but as she put it they never cohabited as she was not interested in a common-law relationship. He described her as having been his common-law wife.

5 There could have been no common law union as our law has come to recognize it because the defendant was a married man when they met and for much of the time they were together. Although there is no dispute as to the fact that she was aware of this, there is dispute as to when it was that he told her of his status and advised her he had commenced divorce proceedings. She said it was in 2003 he said it was may be in 2006 or 2007. The decree nisi was obtained in 2008 and the absolute in 2009. He had been separated from his wife from 1994 and had no interest in remarrying.

The construction of the house

6 The claimant said that construction commenced in late 2004 or early 2005. Under cross-examination she conceded that she could not recall precisely when in fact it started; as the documents exhibited, which spoke to the letters of commitment for mortgage financing for the construction, are dated from November 18, 2005 to February 17, 2006. There is no dispute that not only did the defendant sign over his National Housing Trust monies to her but he acted as guarantor for the loans from Jamaica National Building Society she subsequently obtained. Indeed it is the defendant who exhibited the documents referred to above which had him named as one of the guarantors along with a Mr. Geoffrey Christie, a brother of the claimant.

7 The claimant outlined the various sources through which the construction of the premises was financed but offered no documentary proof to these assertions. However, she insisted that she was solely responsible for the repayment of the loan although the defendant, she said assisted by making three (3) of four (4) mortgage payments to the Jamaica National Building Society totaling approximately $166,000.00. He said it was six to nine months mortgage payments that he made.

8 The dispute as to how the house came to be constructed commenced from the very planning stage. He said it was with his help that she was able to get approval for the plan from the Kingston and St. Andrew Corporation “KSAC”. It was his team of professionals who modified the drawings and adjusted the surveys to conform with the requirements of the KSAC. The cost to her was significantly reduced based on his intervention. She did not totally agree with this depiction of his role. Whereas she agreed that there had been no approval initially and that the plans submitted needed modifications which were made, she said while the draftsman was recommended by the defendant, she paid appropriate sums for the work done. She would seem to be suggesting that the defendant exaggerated the role he played in this process.

9 As to the actual construction, the defendant said he took on the role of project manager and was on the site regularly to oversee the work being done. She agreed that he did visit regularly but said she had a contractor on the site who was responsible and competent. She conceded that they had regular site meetings and that he attended most of them.

10 He said he was able to get discounts by using his own sub-contractors. He was active in actually delivering goods to the site himself or in having a truck employed to his business do the deliveries. She denied this and maintained that the goods were delivered by the companies from which they were purchased and she paid for those deliveries either personally or through the contractor.

11 He pointed to the difficulties encountered in constructing a drive-way to the house given the terrain of the property. He said it was he who suggested how easiest it could be done and ended up having to commission a front end loader several times to grade down the slope of the drive way. The cost was $3500.00 per hour and each trip took about eight (8) hours to use the front end loader. He declared that the money to pay for this and other landscaping cost came out of his pocket. She disagreed that he commissioned any front end loader or paid for the grading. She said it was her contractor who got someone to do that work and she paid.

12 He said a stone wall had to be constructed and it was he who engineered it and paid for the workers that he got. He estimated that he put up 60% of the cost of construction but she disagreed with that estimation. She was not asked and did not offer her own estimation of what, if any, money he put toward the erection of the wall.

13 He said it was his sub-contractor who did the wiring of the house and this meant the cost was significantly reduced and he paid 40% of the eventual cost. Whereas she conceded that the electrician was procured through the defendant, she could not confirm the cost of the electrical work but was unaware that the defendant had paid either 40% or 60% of the cost.

14 One other aspect in the construction work which was raised as a matter of dispute was the tiling of the bathroom. It was suggested to the claimant that it was the defendant who solely financed this work. She countered that the defendant had recommended someone to do the work but when completed she thought it was shoddily done. It had to be dug up and redone by someone else. She ultimately ended up paying twice for the material and the labour involved in getting the work done to her satisfaction.

15 The completed house was described by the claimant as having three (3) bedrooms on the upper floor with a helper's quarter with another bedroom on the lower; three (3) functional bathrooms and two (2) non-functional ones; a living room; kitchen and a patio. It was in answer to a question posed by the court that there was any effort to give a valuation of the house. The claimant estimated the present value to be approximately thirty-four ($34M) million dollars. There was no estimation given from either side as to what was the actual expenditure in construction of this dream house. A quantity survey for the project exhibited by the defendant which he said he prepared, at no cost to the claimant, gave the figure of $11,150,369.00.

After the construction

16 The house was completed by late 2006. There is dispute as to when occupation of it commenced. The defendant maintained that he moved in as soon as it was completed. The claimant said it was sometime in 2008 that she permitted him to stay there. She said he had complained of financial stress that he was experiencing and that he had to be living at his parent's...