Caroline Marie Parkes v Ralph Michael Parkes

• Jurisdiction: Jamaica
• Judge: Cresencia Brown Beckford, J
• Judgment Date: 26 April 2016
• Neutral Citation: [2016] JMSC Civ 216
• Docket Number: CLAIM NO. 2014 HCV 02803
• Court: Supreme Court (Jamaica)
• Date: 26 April 2016

[2016] JMSC Civ 216

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

CLAIM NO. 2014 HCV 02803

Between

Caroline Marie Parkes

Claimant/1st Ancillary Defendant

and

Ralph Michael Parkes

Defendant/Ancillary Claimant

and

Jimcar Limited

2nd Ancillary Defendant

and

Marmic Manor Limited

3rd Ancillary Defendant

Mr. Gordon Steer and Ms. Kaye-Ann Parke instructed by Chambers, Bunny and Steer for the Claimant/ Ancillary Defendant

Mrs. Michele Champagnie and Vincent Henry for the Defendant/ Ancillary Claimant

MATRIMONIAL PROPERTY — THE PROPERTY (RIGHTS OF SPOUSES) ACT — DIVISION OF MATRIMONIAL PROPERTY — FAMILY HOME — VARIATION OF THE EQUAL SHARE RULE — PROPERTY OTHER THAN FAMILY HOME — CONTRIBUTION — COMPANY PROPERTY — RESULTING TRUST.

IN CHAMBERS

Cresencia Brown Beckford, J

THE PARTIES

1 The Claimant/ Ancillary Defendant and the Defendant/ Ancillary Claimant hereinafter referred to as Mrs. Parkes and Mr. Parkes respectively are currently married although separated. Divorce proceedings have been instituted by Mr. Parkes although it has not been made final. There are two children of the marriage who are under the age of 18 years. Mr. and Mrs. Parkes are joint owners of property located at 12 Plymouth Avenue, Kingston 6 in the Parish of St. Andrew (hereinafter called 12 Plymouth) where the parties resided at the time of separation.

2 The 2nd Ancillary Defendant, JIMCAR Limited (hereinafter called Jimcar) was incorporated in 1993 with a share capital of $1000 divided into 1000 shares of $1 each; with Mr. and Mrs. Parkes owning one (1) shares each. In 1994, the title of Villa No.13, 76 Barbican Road, Kingston 6 in the parish of Saint Andrew registered at Volume 1255 Folio 658 of the Register Book of Titles (hereinafter called Villa No.13), was issued in the name of Jimcar. Additionally, in December, 1994 Mr. and Mrs. Parkes were issued with 499 additional shares each. Jimcar does no business other than owning said property.

3 The 3rd Ancillary Defendant, Marmic Manor Limited (hereinafter called Marmic) was incorporated in 1995 with a share capital of $1000 divided into 1000 shares of $1 each with Mr. and Mrs. Parkes owning 1 share each. In 1997, Townhouse No. 12 located at 13a Norbrook Road, Kingston 8 in the parish of Saint Andrew registered at Volume 1286 Folio 551 of the Register Book of Titles (hereinafter called Townhouse No.12) was transferred to Marmic. Additionally, in December, 1996 Mr. and Mrs. Parkes were each issued with 499 additional shares in the Company. Marmic does no other business than owning said property.

4 Both Companies were added as 2nd and 3rd Ancillary Defendant respectively in this matter by virtue of the Defendant's Application and order made on first hearing.

THE CLAIM

5 The claim and ancillary claim are brought pursuant to Section 11 of the Property (Rights of Spouses) Act, 2004 (hereinafter referred to as PROSA). By way of Fixed Date Claim Form, Mrs. Parkes claims the the following relief inter alia against Mr. Parkes:

• (a) A Declaration that the property located at 12 Plymouth Avenue, Kingston 6, in the parish of Saint Andrew registered at Volume 1394 Folio 799 in the Register Book of Titles, is owned be them in equal shares; and

• (b) A Declaration that the she is entitled to one half share of the companies known as Jimcar Limited and Marmic Manor Limited;

6 Mr. Parkes claims the following relief inter alia against Mrs. Parkes:

• (a) A Declaration that it would be unreasonable or unjust for the Claimant to be entitled to one half of the Family Home which is the property known as 12 Plymouth Avenue;

• (b) A Declaration that the Claimant is not entitled to any beneficial interest in the Family Home;

• (c) Alternatively, a declaration that the Claimant is entitled to a beneficial interest of 10% in the Family Home or in such other percentage as the Court deems fit;

• (d) An Order that an inventory to be taken of the contents removed from the Family Home and subsequent division of these items; failing which the Court should make an order; and

• (e) An Order that the Claimant transfers to the Defendant within 14 days of the order the title to the 1998 Toyota Tacoma Pick Up which bears Licence Number FL 1323 failing which the Motor Vehicle Registry is ordered to cancel the current title and to issue a new title to the Defendant.

7 Mr. Parkes also claims against Mrs. Parkes, Jimcar and Marmic the following relief:

• (a) A Declaration that the Defendant is the sole beneficial owner of the Companies Jimcar Limited and Marmic Manor Limited;

• (b) Alternatively, a declaration that the Defendant is entitled to a beneficial interest of greater than 50% in both Jimcar Limited and Marmic Manor Limited;

• (c) If the Claimant is found to have a beneficial interest in both Jimcar Limited and Marmic Manor Limited, then the following:-

  • i. an order altering the Claimant's interest in the Companies as to negate or reduce it;

  • ii. an order rectifying the Shares Registers.

AGREED FACTUAL BACKGROUND

8 The parties met in late 1988 and married in 1992 when Mrs. Parkes was 27 years old and Mr. Parkes 46 years old. The marriage subsisted for 21 years until 2012 when they separated. Both lived together for 17 years at 21 Queensway, Kingston 10 in the parish of Saint Andrew, in a house owned by a company controlled by Mr. Parkes and his children.

9 In 1992, Mr. Parkes entered into agreements for the purchase of land situated at 74–76 Barbican Road and the construction of a house on the said land now known as Villa No. 13. The property was subsequently registered in the Register Book of Titles in the name of Jimcar on the instruction of Mr. Parkes. The purchase monies were furnished by Mr. Parkes from his own resources and from a mortgage which was paid off by way of salary deductions. Mrs. Parkes had a hand in the design and furnishing of the house for the prospective tenant.

10 In 1994, Mr. Parkes entered into negotiations for the purchase of Townhouse No. 12 in a development being undertaken by Mutual Security Group of which Mr. Parkes was a part. Marmic was formed as the company to take legal ownership of this property. Mr. Parkes contributed the total purchase price for this acquisition. Mrs. Parkes was involved with the interior design, furnishing and rental of the unit.

11 In December 2003, the Mr. Parkes commenced purchase of 12 Plymouth Avenue on which the Family Home was later constructed. In January 2006 this property was transferred in the names of Mr. and Mrs. Parkes as joint tenants. They lived together with their two children at the Family Home until their separation.

12 It is not disputed that before the separation, Mr. and Mrs. Parkes both supported and maintained of the children. It is also not disputed that the Defendant advanced all the capital required to purchase 12 Plymouth, Villa No. 13 and Townhouse No. 12.

DISPUTED FACTUAL BACKGROUND

A. Employment history of Mrs. Parkes

13 There is a dispute as to whether Mrs. Parkes was employed at the time of the marriage and where she was employed in 1992 and 1993. What is undisputed is that she was employed for some period in 1992 and 1993 up to 1994 when she stopped working. She did not return to work until the year 2004. For approximately 10 years of the marriage then, Mrs. Parkes did not work.

B. Financial contribution by Mrs. Parkes

14 This is relevant to the question of the Family Home since it is agreed that she made no financial contribution to the properties owned by Jimcar and Marmic. Mrs. Parkes contended that her salary was deposited to a joint account used to defray household expresses. When pressed however, it was clear that such an account, if it existed, was not used in that way. She has made no mention as to how her salary earned from the year 2004 was utilized, save that she has indicated that she was responsible for at least a half of the children's school fees.

15 This is an opportune time to mention the credibility of Mr. and Mrs. Parkes. While Mr. Parkes was given to minimizing the contributions made by Mrs. Parkes, she was prone to exaggerating it. Examples being:

• (a) her indication at first that she paid all the school fees without indicating the refund of one half;

• (b) the functions put on at her home which she initially said were for work purposes but later admitted those functions were held elsewhere and that Mr. Parkes' work associates were merely invitees to gatherings hosted by them;

• (c) her indication that she was central to locating the premises at Barbican on which Villa No.13 was constructed which she later admitted was in fact a part of a development by the company with which Mr. Parkes was associated; and

• (d) her indication that she was involved in the construction of Townhouse No.12 when at best she had a small supervisory role.

16 To that extent Mr. Parkes' evidence is to be preferred. He was also more straight forward in giving answers while Mrs. Parkes was given to long-windedness without answering the questions on disputed issues e.g. when pressed about the joint account where her salary was deposited.

17 Against that background, Mrs. Parkes' evidence that she provided approximately $200,000.00 towards the land at 12 Plymouth Avenue is suspect, in particular as she indicated that these funds were put in a joint account. Nonetheless, by virtue of the normal operations of married life, it is more likely than not that some of the income earned during her working years would have been used for the benefit of the family.

ISSUES

18 The issues are:

• (a) Whether there are any section 7 factors that would allow the court to alter the equal share rule in respect of the Family Home in favour of Mr. Parkes;

• (b) How should the contents of the Family Home be divided;

• (c) Whether Mr. Parkes has any beneficial interest in the Toyota Tacoma Truck registered in the name of Mrs. Parkes;

• (d) What is the...