Dalfel Weir v Beverly Tree

• Jurisdiction: Jamaica
• Judge: Morrison P,Phillips JA,Brooks JA
• Judgment Date: 04 March 2016
• Neutral Citation: JM 2016 CA 27
• Docket Number: SUPREME COURT CIVIL APPEAL NO 37/2011 APPLICATION NO 84/2015
• Court: Court of Appeal (Jamaica)
• Date: 04 March 2016

Between

Dalfel Weir

Applicant

and

Beverly Tree

Respondent

[2016] JMCA App 6

Before:

The Hon Mr Justice Morrison P (AG)

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

SUPREME COURT CIVIL APPEAL NO 37/2011

APPLICATION NO 84/2015

JAMAICA

IN THE COURT OF APPEAL

Dr Leighton Jackson for the applicant

Gordon Steer and Mrs Judith Cooper-Batchelor instructed by Chambers Bunny and Steer for the respondent

Morrison P (AG)

1 This is an application to vary an order made by this court on 17 March 2014 (“the original order”), at the conclusion of an appeal in which the present parties were appellant and respondent, respectively. On 18 December 2015, this court (by a majority) made an order amending the original order. I have had the privilege of reading, in draft, the reasons for making the amended order prepared by Phillips JA, who was herself the author of the leading judgment in the appeal, and I agree entirely with them. However, in doing so, I find myself in the unhappy position of disagreeing with Brooks JA, who was also a member of the court which made the original order, and who would not have granted the order to amend it. In all the circumstances, particularly since I am the only newcomer to this matter, I think it might be best for me to indicate briefly my reasons for preferring the conclusion arrived at by Phillips JA.

2 The applicant and the respondent were husband and wife and this is a case concerning the division of their matrimonial property. In proceedings in the court below, the applicant sought an order that he be given ‘a right of first refusal to buy the [respondent's] interest, if any, in the family home …’. The family home was described as follows:

‘ALL THAT parcel of land part of NORWICH in the parish of PORTLAND being the being the Lot numbered NINE on the approved Subdivision Plan part of [sic] prepared by FG Nembhard, Commissioned Land Surveyor and being part of the lands registered at Volume 899 Folio 23 of the Register Book of Titles’

3 By his order dated 24 March 2010, the learned trial judge awarded the applicant a one-half share of the value of the dwelling house on the land described above. Although there was no evidence that the dwelling house had been separately valued, the learned trial judge ascribed to it a value of $2,600,000.00 and accordingly entered judgment for the applicant in the amount of $1,300,000.00.

4 In his appeal to this court, the applicant sought, among other things, orders that he be declared to be beneficially entitled to a one-half share of the family home and that he be given the first option to purchase it. His appeal was allowed and, by the terms of the original order, he was declared to be entitled to a one-half share of the family home (described as stated at paragraph [2] above). The original order then went on to state the following:

• ‘(c) An updated valuation shall be done by DC Tavares & Finson Realty Ltd and utilised by the parties to arrive at the value of the one-half share of the family home, namely the dwelling house together with the land comprising lot 9 to which the appellant is entitled.

• (d) Lot 9 shall be sold by private treaty or public auction and the proceeds divided equally or the appellant shall have the first option to purchase same and such option must be exercised within three months of the order for sale, failing which it shall lapse…’

5 The inclusion of sub-paragraph (c) was necessitated by the fact that, by the time the appeal came to be heard, the valuation report originally been prepared by DC Tavares & Finson Realty Ltd (DCTF) on 9 November 2009 for use in the proceedings in the court below was over four years old. Accordingly, in her judgment in the appeal (with which Panton P and Brooks JA agreed), Phillips JA considered (at para. [69]) that the valuation should be ‘… updated to reflect the current market value of lot 9 including the dwelling house situated thereon’.

6 The problem which arose in the carrying out of the original order developed in the following way. At the hearing of the appeal, the applicant (then the appellant) and the respondent were represented by Dr Leighton Jackson and Mrs Judith Cooper-Batchelor, respectively. Both counsel are agreed that, upon leaving court after the delivery of the court's judgment embodying the original order on 17 March 2014, they spoke about the matter. Although there is a disagreement between them as to precisely what was said in that conversation, it seems reasonable to suppose that, as Dr Jackson deponed (at paragraph 10 of his affidavit sworn to and filed on 5 May 2015), they spoke about the future of the matter. At all events, by letter dated 24 March 2014, Mrs Cooper-Batchelor wrote to DCTF, referring to the November 2009 valuation and requesting an updated valuation.

7 In a message sent by electronic mail (email) on 4 April 2014, Mrs Cooper-Batchelor advised Dr Jackson that she had contacted DCTF and that ‘[t]he valuator will be calling you shortly to arrange an inspection of the property …’. In an email response dated the same day, Dr Jackson advised Mrs Cooper-Batchelor that he had spoken to the applicant and alerted him that the valuator would be coming and further that he had given the valuator both the applicant's and his son's cellular telephone numbers. Then, in a later email message dated 8 May 2014, Mrs Cooper-Batchelor further advised Dr Jackson that the valuation had been done, that she had received an invoice from DCTF for $20,022.97, and that ‘[s]ince our client paid for the last valuation we believe that it is reasonable for your client to pay for this one’. On 28 May 2014, Dr Jackson advised Mrs Cooper-Batchelor that the applicant had now put him in funds and that he would ‘bring it tomorrow’. And, on the following day, 29 May 2014, Dr Jackson personally delivered a manager's cheque for $20,022.97 (made out to DCTF) to Mrs Cooper-Batchelor. As would subsequently emerge, DCTF did not receive this cheque until 13 June 2014.

8 By email message dated 16 June 2014, Mrs Cooper-Batchelor advised Dr Jackson that she had now received the DCTF report and that it was available for collection at her office. The following day, 17 June 2014 (exactly three months after the date of the original order), Dr Jackson collected the report from Mrs Cooper-Batchelor's office and sent it on to the applicant's son. On 19 June 2014, having now received instructions, Dr Jackson wrote to Mrs Cooper-Batchelor, confirming the applicant's willingness to go ahead with the purchase, and enquiring ‘how much time he [the applicant] has to get the money together’. On 30 June 2014, Mrs Cooper-Batchelor replied as follows:

‘My reading of the order is that your client had 3 months to indicate an intention to purchase. He would have had up to June 16 ^th , 2014. The option has lapsed. The property is now for sale on the open market and my client has indicated that she would like to purchase his share of the property. Please prepare an agreement for sale.’

9 Dr Jackson responded immediately by an email message dated that same day, 30 June 2014, in which he protested, ‘Come on, how could he have exercised the option without knowing the price via the valuation?’ Dr Jackson then went on to state that ‘[w]e will have to go back to the court for instructions or variation’.

10 It is against this background that the applicant filed this application on 5 May 2015. The principal order sought by him was as follows:

‘That the ambiguity which has produced an inconsistency with this Court's intention in the order of this Court made on 17 March 2014 be clarified to explain that the option to purchase the respondent's one-half share of the family home upon the order of sale made in the same order is exercisable within three months of the date of the receipt of the updated valuation report failing which it shall lapse; …’

11 In support of this application, the applicant relied on the following grounds:

• ‘1. The order of this Honourable Court dated 17 March 2014 is ambiguous.

• 2. This Honourable Court has the inherent jurisdiction to clarify, vary or re-open Orders made by it.

• 3. That the order of this Honourable Court as written defeats the purpose and/or objective of the Order made by this Honourable Court on March 17, 2014;

• 4. The effect of the Orders of this Honourable Court without clarification, amplification or variation will create injustice, critically undermine the integrity of the earlier litigation process, prejudice and subject the parties, jointly and/or severally, to expense and continuing litigation.

• 5. That the Appellant has exercised the first option and is ready, willing and able to purchase the Respondent's half interest and effect the Transfer of her interest as is the spirit and intendment of the order of this Honourable Court.’

12 I should say at once that I approach this application on the basis that, in my view, no particular blame attaches to the applicant for the time which it took for the updated valuation to be obtained. There was, it is true, an almost three week delay on his part in putting Dr Jackson in funds to pay for DCTF's fee for the valuation. But there were also other delays, including the inexplicable two weeks which elapsed between the delivery of the manager's cheque to pay the fee to Mrs Cooper-Batchelor's offices and its receipt by DCTF. On the face of it anyway, it certainly appears that, right up until 30 June 2014, when Dr Jackson was informed by Mrs Cooper-Batchelor that, in her view, the option had lapsed, the parties were moving cooperatively towards the satisfactory conclusion of the matter.

13 Both Dr Jackson for the applicant and Mr Gordon Steer for the respondent made detailed and very helpful submissions on this application. The submissions and the various authorities deployed in support of...