Dean Hinds v Janet Wilmot

JurisdictionJamaica
Judge EDWARDS J (Ag.)
Judgment Date15 July 2011
Judgment citation (vLex)[2011] 7 JJC 1503
Docket NumberCLAIM NO. 2009 HCV 00519
CourtSupreme Court (Jamaica)
Date15 July 2011

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2009 HCV 00519

BETWEEN
DEAN HINDS
CLAIMANT
AND
JANET WILMOT
DEFENDANT

Mr. Sean Kinghorn instructed by Kinghorn and Kinghorn for the Claimant.

Ms. Savernia Chambers for the Defendant.

Division of property-claim for equitable interest in property- former co-habitants-title in the name of one party-separate mortgage loans taken by both parties to improve property-effect of statutory declaration denying equitable interest-payment of mortgage installments-common intention of the parties.

EDWARDS J (Ag.)

Facts

1

The claimant Mr. Dean Hinds, by way of a Fixed Date Claim form with supporting affidavit filed on February 10, 2009, sought a declaration that he is entitled to a 75% share in property situated at Lot 25 Bonsai Drive, Sydenham Gardens in the parish of St. Catherine. On the day of trial an application was made and an order granted to amend the claim to substitute a 50% share for the 75% share initially sought.

2

The title to the property is registered in the name of the defendant Janet Wilmot solely. The land was purchased by her in July 2001. The parties met in 2005 and began an intimate relationship. The claimant was and still is a serving member of the Jamaica Constabulary Force. The defendant described herself as a business woman.

3

At the time the parties met the defendant had already begun constructing a dwelling house consisting of two bedrooms, two bathrooms, a kitchen, dining room, living room, carport, verandah and washroom on the property. The structure was only partially complete being only blocked up to window height. Her evidence was that she had spent a total of $1,300,000.00 in constructing the building to that level. The evidence from the valuation report she presented showed that the incomplete structure was valued in January 2006 at $2,300,000.00.

4

Soon after the parties began their relationship the claimant offered to give to the defendant his benefit under the National Housing Trust (NHT) scheme. In December 2005 both parties obtained separate loans from the NHT. The loan to the claimant and that to the defendant was expended on completing the construction of the house. The defendant borrowed a total of $1,450,000.00 taken in two trances. The first was taken in January 2006 in the sum of $800,000.00 and another in April 2006 in the sum of $650,000.

5

A loan of $1,000,000.00 at an interest rate of 7% was granted by the NHT in the claimant's name and secured by the subject property; mortgage payments were calculated at $8,147.22 per month. The circumstance as to why the claimant agreed to give his benefit under the NHT scheme to the defendant was disputed.

6

The claimant, in applying for the build on own land loan from the NHT for the improvement of the said property, swore to a statutory declaration in which he stated, as far as is relevant to these proceedings, that:-

  • a) ‘I am a co-applicant with Janet Wilmot for a build on own land/home improvement loan from the National Housing Trust;

  • b) That I have no legal or equitable interest in the property being used to secure my loan, nor do I wish to obtain a legal or equitable interest therein.

  • c) That I am aware and agree that by so applying I have utilized my sole National Housing Trust housing benefit and that I am therefore not entitled to any future housing benefit from the National Housing Trust.’

7

Work on the property commenced in April 2006 and was completed in September of the same year. In September 2006 the parties began living together in the said house. After the house was completed a fence was also constructed around the property. Unfortunately, the relationship broke down amidst allegations of physical abuse and infidelity on the part of the claimant. The parties separated in November 2007.

8

There is no evidence of the value of the property to date. It is admitted that the claimant paid some of the mortgage installments on the $1,000,000.00 taken out in his name. The defendant paid off the NHT loans for the claimant and herself in February 2008.

Issues

9

I am of the view that the matter can best be resolved by a determination of the following issues:

The Applicable Legal Principles

  • (1) Whether there was evidence of an express agreement showing a common intention that the claimant would acquire an equitable interest in the property pursuant to which the claimant acted to his detriment.

  • (2) Whether in the absence of such an agreement there was evidence from which a court could infer such a common intention in reliance on which the claimant acted to his detriment.

    • a. Whether the claimant's loan from the National Housing Trust which was used to complete the construction of the premises is evidence from which the court can infer a common intention for him to acquire an equitable interest in the property; if not

    • b. Whether the payment of some of the mortgage installments is conduct evidencing a common intention by the parties to alter the beneficial interest in the property.

    • c. Whether the claimant made any other substantial contribution to the improvement of the property which would entitle him to a beneficial share in the property; if not

  • (3) Whether the claimant expended any sums on the property for which he is entitled to restitution.

10

Where a person in whom the legal title to land is not vested claims an interest in that said land, he must prove that the one in whom the legal title is vested, holds it as trustee on trust for his beneficial interest. This is the English Law of trust and the principles are applicable to this jurisdiction. Such a trust may be a constructive or a resulting trust.

11

In the case of a resulting trust, where two persons contribute to the purchase of a property and the purchase is made in the name of one only, there is a presumed common intention that the party in whose name title is vested holds the property on resulting trust for both of them in the proportion of their respective contribution to the purchase price. See the judgment of Viscount Dilhorne in Gissing v Gissing (1871) AC 886.

12

In the case of a constructive trust, this arises where at any time two or more persons have a common intention, expressed or implied by words or conduct, that one or more is to have a specific share in the property or an uncertain share to be ascertained in due course according to their contributions; so inducing that person(s) to act to their detriment in the reasonable belief that they are thereby acquiring the agreed interest: See Grant v Edwards (1986) 2 ALL ER 427. To establish this intention there must be evidence pointing to its existence.

13

The detriment or prejudice to one party makes it unconscionable for the other to deny him an interest in the property under an expressed or inferred declaration of trust. He will then get what is agreed: See Re Densham (1975) 3 ALL ER 726, where one party contributed only one ninth of the purchase price but there was an oral agreement that she was to have an equal share of the property. The court held that this agreement was valid. He may also rely on a constructive trust where he paid for capital improvements or carried out building works himself. However, equity will not assist a volunteer.

14

These principles, which were declared as far back as the majority judgment in Pettitt v Pettitt (1970) A.C. 777, have been consistently applied in this jurisdiction. See Trouth v Trouth (1981) JLR 409; Azan v Azan (1988) 25 JLR 502 and Chin v Chin SCCA No. 261/2001, unreported.

15

The law in this area was recently revisited by the H.L. in Stack v Dowden (2007) UK HL 17, where the House comprehensively examined the principles applicable to the equitable trust in domestic relationship and the way the law has developed since Pettitt v Pettitt, Gissing v Gissing, Lloyds Bank plc v Rosset (1991) AC 107 and Oxley v Hiscock (2004) EWCA Civ 546. These principles were adapted and applied by my brother The Honourable Mr. Justice Roy Anderson in his judgment in Plummer v Plummer, HCV 00864 of 2006, delivered June 15, 2009 (unreported).

16

In Stack v Dowden the Law Lords recognized and affirmed that the starting point of the equity was that sole legal ownership equaled sole beneficial ownership. The principle is that where there is sole legal ownership it is incumbent on the party claiming an equitable interest to show that he had any interest at all and if so what that interest amounted to.

17

Lord Hope at paragraph 8 said ‘where title to a dwelling house is taken in one name only, the presumption is that there is sole ownership in the named proprietor’. The party claiming otherwise must, therefore, show that there is:

  • a. A beneficial interest; and

  • b. The nature of that interest.

18

To ascertain whether there is a beneficial interest it is necessary to ascertain whether there was an expressed agreement as to the beneficial interest, the contributions each party made to the purchase price if any, or, whether a common intention could be inferred from any words or conduct of the parties and from any substantial contributions to repairs, renovations and or improvements to the property, made by the claimant. This is to be done against the background of the relationship of the parties at the time and their whole course of dealing in relation to the property.

19

Baroness Hale put it this way:

‘The search is to ascertain the parties shared intentions, actual, inferred or imputed, with respect to the property in the light of their whole course of conduct in relation to it’

20

Her Ladyship was quick to point out that the search was only for what the parties must have intended and that in pursuit of that, the court must be mindful not to abandon the search in favor of a result it considered fairer.

21

Referring to the speech of Chadwick LJ in Oxley v Hiscock (2004)...

To continue reading

Request your trial
1 cases
  • Alison Christie Binger v Michael Ranger
    • Jamaica
    • Supreme Court (Jamaica)
    • 5 February 2014
    ...are to be viewed as going further than merely assisting her because of their relationship. 36 The local Supreme Court decisions of Hinds v. Wilmot Claim No. 2009 HCV 00519 and Campbell v. McCallum & Renea Whitmore Claim No. 2003 HCV 01825 were referred to and relied on. The former, it was s......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT