Dorrett Maud Richardson v Ernest Beresford Richardson

• Jurisdiction: Jamaica
• Judge: Mangatal J:
• Judgment Date: 09 February 2012
• Neutral Citation: [2012] JMSC Civ 12
• Docket Number: SUIT NO. FD 02188 OF 2005
• Court: Supreme Court (Jamaica)
• Date: 09 February 2012

[2012] JMSC Civ 12

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

SUIT NO. FD 02188 OF 2005

Between

Dorrett Maud Richardson

Applicant/Respondent

and

Ernest Beresford Richardson

Applicant/Respondent

Ms. Kemilee Mclymont instructed by Petermc and Associates for Mr. Richardson.

Ms. Marlene Uter , instructed by Alton Morgan & Co for Mrs. Richardson .

MATRIMONIAL PROPERTY-CONSENT ORDER—WHETHER CONSENT ORDER CONSTITUTES A CONTRACT BETWEEN THE PARTIES, IF SO IN WHAT TERMS-PARTITION ACT-WHERE CONSENT ORDER PROVIDES REMEDY UPON DEFAULT OF ONE PARTY'S OBLIGATION, WHETHER COURT ENABLED TO REOPEN THE QUESTION OF SHARE OF ENTITLEMENT IN PROPERTY

IN CHAMBERS

Mangatal J:

1 The applications before me concern Mrs. Dorrett Richardson and Mr. Ernest Richardson who married each other on the 9 ^th of November 1988. The property which is involved in the dispute is Lot 67 Cedar Gardens, Mandeville P.O in the Parish of Manchester, being the land comprised in Certificate of Title registered at Volume 1010 Folio 700 of the Register Book of Titles. The property was transferred to the parties as joint tenants on the 9 ^th of September 1988, prior to the marriage. The parties commenced construction of a house on the land in 1989.

2 Prior to the marriage, the parties had resided in England and in 1988 both moved to Jamaica. Mrs. Richardson is a Jamaican and Mr. Richardson is from Saint Vincent.

3 The parties separated in 1995 and have been occupying different sections of the house since 1999.

4 Mr. Richardson filed a Petition for Divorce on November 16, 2005 and on October 2, 2006, a Decree Nisi was granted. On November 28, 2006, Mrs. Richardson filed an application for maintenance against Mr. Richardson.

5 On the 15 ^th of June 2007, Mr. Richardson represented himself and Mrs. Richardson was represented by Mrs. Arlene Mcleod instructed by the firm of Alton E. Morgan & Co. A Consent order was entered as follows:

….by and with the CONSENT OF THE PARTIES IT IS HEREBY ORDERED :

1

That in contemplation of a maintenance order, Ernest Richardson hereby offers subject to provisions of paragraph 3 hereafter to transfer all his interest in the matrimonial home, situate at and being all that parcel of land part of Cedar Grove in the Parish of Manchester being the Lot numbered SIXTY-SEVEN on the plan of Cedar Grove aforesaid deposited in the Office of Titles on the 9 th day of November 1961 of the shape and dimensions and butting as appears by the Plan thereof hereunto annexed and being part of the land comprised in the Certificate of Title registered at Volume 1010 Folio 700, to the Applicant/Respondent Dorett Richardson in satisfaction of all his present and future maintenance obligations and division of property rights entitlements. 2. That the form of Instrument of Transfer shall be in accordance with the provisions of the Registration of Titles Act, in the form affixed hereto, and shall be deemed to be pursuant to section 9 of the Property (Rights of Spouses) Act. 3. Upon the perfecting of the instrument of Transfer and prior to its registration the Respondent/Petitioner shall be paid by the Applicant/Respondent the net residue of all jointly owned matrimonial property assets agreed to be Five Million Dollars ($5,000,000.00). 4. The perfected instrument of Transfer shall not be delivered to the Applicant/ Respondent until payment is made or sufficiently made or sufficiently and satisfactorily guaranteed by the Respondent. 5. The Respondent/Petitioner shall be entitled to remain in the matrimonial home undisturbed for no more than three(3) years or until paid the agreed net residue of the matrimonial property assets in full. 6. That within twelve(12) months from the date of this Consent Order a commitment letter shall be provided to the Petitioner for the payment of the agreed net residue failing which the Respondent/Petitioner may apply under the Partition Act for a sale of the property to any third party. 7. The parties shall examine and determine the condition of the two(2), 1 bedroom flats located on the said property in the following manner: a. To be inspected and examined by an independent third party Captain Barrington Smith or as agreed by the parties who will determine the repairs required and quantify the cost on or before the 1 st of July 2007. b. Both flats are to be repaired, refurbished and rented by the 1 st of August 2007. 8. The expenses of furnishing or repairing both flats are to be borne by the parties equally, and the cost reimbursed to each from the rental income. 9. That the rental income from the flats are to be used; one to offset the expenses of the matrimonial home and the other to be used exclusively by the Applicant/Respondent for her maintenance. 10. In the event of the fulfilment of all the requirements by the Applicant/Respondent and/or by the Respondent/Petitioner, but there is failure, neglect, reluctance and/or refusal by either party to execute the Instrument of Transfer of the Matrimonial home, the Registrar of the Supreme Court shall be authorized to sign the said Instrument of Transfer and or all such documents necessary to effect the transfer of the said property. 11. That there be liberty to apply. 12. That there be no order as to costs.

6 Mrs. Richardson in her Affidavit evidence has stated that she was unable to raise a lump sum cash amount of $5,000,000.00 and proposed to Mr. Richardson that she would transfer to him her interest in property owned by them both jointly in Saint Vincent in order that the value of her interest therein could be applied towards the satisfaction of the $5,000,000.00 payment. Mr. Richardson did not find this proposal acceptable and has rejected it.

7 On May 6 2009, Mr. Richardson filed a Notice of Application for Court Orders, which has since been amended, and supported by Affidavits. In the Amended Notice filed on April 26 2011, Mr. Richardson seeks, amongst other relief the following:

That the property located at 67 Cedar Grove, Mandeville,….be sold pursuant to the Partition Act.(See Item 6 of the Consent Order).; 2. A declaration, pursuant to section 6 of the Property (Rights of Spouses) Act, 2004 that each party is entitled to one-half interest in 67 Cedar Grove…(the matrimonial home) and a severance of the joint tenancy proprietorship of the said property; 3. In the alternative, that the Respondent transfer her interest in 67 Cedar Grove….to the Applicant at a price to be agreed by the parties in court; …

1 5. In addition to, or in the alternative, or in the interim that item 5 of the Consent Order is varied herein to allow the Applicant to permanently occupy and bear all the expenses associated therewith of the entire portion of the bottom half of the house located at 67 Cedar Grove…… to the exclusion of the Respondent, with the exception of the garage which is to be shared equally between both parties……

8 Mrs. Richardson filed a cross-application on July 8 2009 contending that Mr. Richardson is not entitled to any such interest as claimed under the Property(Rights of Spouses) Act. Mrs. Richardson's application is pursuant to the Partition Act, and she claims that she is entitled to no less than a 75% interest, or alternatively, that she is entitled to at least a 90% interest in the property. She subsequently filed an application for variation of the Consent Order, but abandoned that application at the hearing before me. As I understand the position, Mrs.Richardson is now seeking to enforce the terms of the Consent Order, or alternatively, she seeks the relief which she claimed in the alternative to a variation of the Consent Order, as set out in her Amended Notice of Application for Court Orders, filed April 21 2011. The application seeks, amongst other matters, as follows:

IN THE ALTERNATIVE, THE APPLICANT DORRETT MAUD RICHARDSON seeks the following Orders:

1. That the determination of the proportion of the ownership of the parties in the property situate at 67 Cedar Grove….be made pursuant to the Partition Act.

2. That pursuant to the Partition Act and the common law principles of equitable accounting, the interest of the Applicant herein in the property at 67 Cedar Grove….is not less than …75% in the said property.

3. That the joint tenancy be severed and the parties shall hold their interest in the said property as tenants-in-common in such proportion as this Honourable Court deems just;

4. That upon the determination of the proportion of the respective interests in the said property, that the Consent Order entered on the 15 ^th day of June 2007 be varied to allow either party herein 90 days within which to acquire the...