Chin (David Alexander) v Chin (Earl Anthony Chin)

• Jurisdiction: Jamaica
• Judge: MORRISON, J (Ag.)
• Judgment Date: 18 December 2006
• Judgment citation (vLex): [2006] 12 JJC 1801
• Date: 18 December 2006
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

BETWEEN

DAVID ALEXANDER CHIN

CLAIMANT

AND

EARL ANTHONY CHIN

DEFENDANT

REAL PROPERTY - Claim for upkeep of property abroad - Proper jurisdiction or forum to hear matter

MORRISON, J (Ag.)

1 The parties in this case are at loggerheads over property left by the deceased, Adolph Chin, who died in July 1997, leaving a Will. The litigants herein are, nephew and uncle, respectively. The former lives at 105 Groomsbridge Court, Chapel Hill, North Carolina, United States of America, while the latter lives at 12 Bedford Park Avenue, Kingston 10, St. Andrew.

2 Pursuant to the said will, the Claimant was made executor and trustee thereof on the 23 ^rd day of June 1999. Probate of the above will was obtained by the Claimant. The Testator after directing that his just debts, funeral and testamentary be paid, left the rest, residue and remainder of his estate whatsoever and wheresoever situate as to realty in fee simple and as to personalty absolutely to David Chin, the Claimant.

3 The devise and bequest to David Chin were qualified suffice it to say that the survival of the Claimant has rendered the qualification nugatory. There are three properties involved. One is at 12 Bedford Park Avenue, Kingston 10, St. Andrew another at 63 Old Hope Road, Kingston 5, St. Andrew and the third is at 14442 S.W. 117 ^th Terrace, Miami Florida, U.S.A.(Miami property)

4 Permit me to quote from the Will of Mr. Adolph Elgin Chin. At paragraph 2 onwards of the said will one finds -

5 "I appoint my son David Alexander Chin of 9303 S.W. 39 ^th Street, Miami, 33165, Florida, in the United States of America, Bio-Chemist to be the Executor and Trustee of this my Will, but in the event he predeceases me or is unwilling or unable to act, I appoint in his stead my brother Earl Anthony Chin of 16~Bedford Park Avenue, Kingston 10 in the parish of St. Andrew, Businessman." At paragraph 5 of the said Will the Testator directs "my Executor to pay my just debts, funeral and testamentary expenses."

6 Upon the "Order on Fixed Date Claim Form" coming up for hearing on the 6 ^th day of June 2006 before The Honourable Mrs. Justice Sinclair-Haynes it was declared and ordered that the parties were the equal joint owners of the properties at 63 Old Hope Road and 12 Bedford Park Avenue.

7 Also, that the Claimant is entitled to one half of all the rental income from 12 Bedford Park Avenue and for the Defendant to render an account of one half of all the rental income he has received from the said property for a specific period.

8 A number of affidavits were filed by the parties including one from a Mary Chin, aunt of the Claimant and sister of the Defendant, who resides at the Miami property.

9 In respect of this latter property the Defendant asserts that he paid monies due from the Claimant for its maintenance and upkeep and that as such he is entitled to set off the amount so paid against such sums as may be found to be due to the Claimant arising from the order made by the Honourable Mrs. Justice Sinclair-Haynes. When the matter came before Anderson, J on 13 ^th December 2005 he ordered, inter alia, that the undated financial statements prepared by a Mr. Charles O'Conner, be updated to June 2005 and that this be done by 31 ^st January 2006 at the instance of the Claimant.

10 Further, that the Defendant is to provide an affidavit setting out any additional sums purportedly owed to him or advanced by him for the benefit of the Claimant and that such affidavit be served on the Claimant by January 14, 2006. It was further ordered that the attorneys for the parties shall review the updated accounts by 28 February 2006.

11 The Claimant claimed against the Defendant the sum of $1,445,532.86 being the amount adjudged to be owed by the Defendant pursuant to the account ordered by Anderson, J. It is this claim that was resisted by the Defendant by way of set-off. Thus the claim for set-off raises a jurisdictional issue seeing that the property is located in Miami, Florida, United States of America.

12 The Claimant contends that the Jamaican courts is not the proper forum to hear the matter whereas the Defendant advanced the contrary view. It is the Claimant's contention that since the claim for set-off raises issues which are outside the jurisdiction of the Jamaican Courts the Defendant's claim ought not to be a part of the hearing before this Court but is to be determined in the United States having regard to where the property is located.

13 Further, asserts the Claimant, as the Defendant's claim is one which seeks to oblige the Claimant to restore the benefit of the enrichment obtained purportedly at the Defendant's expense, that it is not sustainable in law.

14 In this regard the Claimant posits that the obligation to restore the benefit of an enrichment obtained at another person's expense is governed by the proper law of the obligation. He referred this Court to "The Conflict of Laws Volume 2, (13 ^th edition) co-authored by Dicey & Morris.

15 The Claimant reasons by saying he makes no admission as to the existence of the alleged implied contract as asserted...