Dorretta May Guthrie v Vincent Lloyd Guthrie
| Jurisdiction | Jamaica |
| Judge | McDonald-Bishop JA,Edwards JA,Simmons JA |
| Judgment Date | 18 February 2022 |
| Neutral Citation | [2022] JMCA App 5 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO COA2020CV00118 |
| Court | Court of Appeal (Jamaica) |
| Year | 2022 |
JM 2022 CA 123
[2022] JMCA App 5
THE HON Mrs Justice McDonald-Bishop JA
THE HON Miss Justice Edwards JA
THE HON Miss Justice Simmons JA
SUPREME COURT CIVIL APPEAL NO COA2020CV00118
APPLICATION NO COA2020APP00118
IN THE COURT OF APPEAL
Ms Lisamae Gordon and Ms Tatiana Answer instructed by Malcolm Gordon for the applicant
Ms Tavia Dunn, Ms Deborah Dowding and Mrs Allayndra Thompson instructed by Nunes, Scholefield, Deleon and Co for the respondent
I have read, in draft, the reasons for judgment of Simmons JA. I endorse the reasons she gave for the decision of the court and there is nothing I could usefully add.
I, too, have read in draft the reasons for judgment of Simmons JA. I agree with them and have nothing to add.
This was an application for leave to appeal and a stay of execution of the decision of Barnaby J made on 3 July 2020, refusing an application filed on 26 February 2018, to strike out the fixed date claim form filed by the respondent. The application before this court was supported by the affidavit of Lisamae Gordon sworn to on 9 July 2020.
On 15 March 2021, after considering the submissions in this matter, this court made the following orders:
“1. The application for leave to appeal the order made by Barnaby, J on 3 July 2020 and filed in this court on 9 July 2020 is refused.
2. Costs of the application to the respondent to be agreed or taxed.”
It was indicated to the parties that the reasons for our decision would be provided, and this judgment is a fulfilment of that promise.
The parties, who were formerly married to each other, had previously sought and obtained orders in respect of the division of certain properties (‘the 2009 claim’). That matter was concluded in 2011. Among the properties that were dealt with was one situated at Lot 24, Pitkelleney Sub-Division, West Cliff Estates, in the parish of Westmoreland, registered at Volume 134 Folio 933 of the Register Book of Titles (‘the Pitkelleney property’).
On 19 July 2011, R Anderson J made orders on the 2009 claim (‘Anderson J's orders’). He declared that the parties were each entitled to a 50% share in the Pitkelleney property. The said property was to be valued, and the applicant was given the first option to purchase. In the event that she failed to do so within 120 days, the respondent had the right to purchase it. The order also required the applicant to pay an additional sum of $1,000,000.00 to the respondent, “in reimbursement of the sums borrowed for the construction of the home”, if she chose to exercise her option to purchase. In the event that neither party was able to purchase the property, it was to be sold by public auction or private treaty and the proceeds divided in accordance with their respective interests.
On 7 July 2014, a new certificate of title was issued for the Pitkelleney property in the names of the applicant (the defendant in the court below) and the two children of the marriage. It is common ground that by doing so, the applicant breached Anderson J's orders. She also breached the said orders by failing to pay the $1,000,000.00 to the respondent as reimbursement of the sums borrowed for the construction of the house. It was that state of affairs that led to the filing of the fixed date claim form, which was the subject of the proceedings before Barnaby J (‘the 2017 claim’). In that claim, the respondent (the claimant in the court below), sought the following orders:
“1. A Declaration that the property known as Lot 24, part of Pitkelleney, West Cliff, Negril in the parish of Westmoreland, and more particularly registered at Volume 1481 Folio 375, is the same property which is the subject of the Order of the Supreme Court of the 22 nd July 2011 in Claim No. 2009HCV 3430.
2. A Declaration that the Defendant did not comply with the directions for the exercising of the first option to purchase Lot 24, part of Pitkelleney, West Cliff, Negril in the parish of Westmoreland.
3. A Declaration that the Defendant has not paid to the Claimant the sums due and owing in respect to her acquiring his interest in Lot 24, part of Pitkelleney, West Cliff, Negril in the parish of Westmoreland.
4. A Declaration that the Defendant has not paid the prescribed sum of One Million Dollars ($1,000,000.00) for reimbursement of the sums borrowed for the constructions [sic].
5. A Declaration that the Claimant is entitled to be paid the sum of Eight Million Eight Hundred and Twenty-Five Thousand Dollars ($8,825,000.00) by the Claimant for his interest in Pitkelleney and the construction costs.
6. An Order that [the] Defendant shall forthwith pay, or cause to be paid, to the Claimant the aforementioned sum together with interest from the 7 th July 2014.
7. Court Fees of $2,000.00 and Attorney's Fixed Costs on issue of $10,000.00.
8. Such Further and other Reliefs as this Honourable Court deems just.”
The applicant applied to strike out the 2017 claim on the ground that it was an abuse of the process of the court as it amounted to a re-litigation of issues that were addressed in the 2009 claim and the enforcement of those orders was statute-barred.
On 3 July 2020, Barnaby J, having heard the application, made the following orders:
“1. The Application to strike out the Respondent's Claim filed February 26, 2018 is refused.
2. The Costs of the Application to the Respondent to be taxed if not agreed.
3. The first hearing of the Fixed Date Claim Form is set for November 24, 2020 at 2:30 pm for 1/2 hour.
4. Leave to appeal is refused.
5. Attorney-at-Law for the Applicant is to prepare, file and serve these orders.”
On 9 July 2020, the applicant filed a notice and grounds of appeal seeking the following orders:
“i. That the Applicant be granted permission to Appeal the Order made by the Honourable Ms Justice C. Barnaby (Ag.) on the 3 rd day of July, 2020.
ii. That the Judgement given on the 3 rd of July 2020 by the Honourable Ms. Justice C. Barnaby (Ag.) be set aside/reserved.
iii. That the Fixed Date Claim Form filed in Claim No. 2017 HCV 01914 on June 14, 2017 be struck out.
iv. That the Judgment given on the 3 rd of July 2020 by the Honourable Ms. Justice C. Barnaby (Ag.) be stayed pending the outcome of the Court of Appeal Proceedings.
v. Any further and other relief that this Honourable Court deems fit.
vi. Costs.”
In the court below, Barnaby J identified four issues:
“i. Does the Respondent's claim constitute an abuse of the process of the court?
ii. Can enforcement proceedings for breach of the orders on the 2009 claim be initiated by Fixed Date Claim Form?
iii. Is the absence of the history of facts in the 2009 claim likely to obstruct the just disposal of the current claim?
iv. Has the limitation period for enforcing the orders of R. Anderson, J on the 2009 claim expired?”
It was submitted by counsel for the applicant that the filing of the 2017 claim was an abuse of the court's process. Counsel for the respondent, on the other hand, argued that the 2017 claim was necessary as Anderson J's orders were declaratory and, therefore, incapable of being enforced by execution. Consequently, new proceedings had to be initiated to enforce the part of the judgment that the respondent alleged had been breached by the applicant.
Barnaby J, in determining the nature of the said orders, relied on paragraph 1268 of Halsbury's Laws of England, Volume 12A (2015). She stated at paragraph [13] of her judgment:
“[13] I have also found the following extract from Halsbury's on judgments and orders in civil proceedings useful. It states, Many judgments and orders given or made in civil proceedings do not require to be enforced because the judgment or order itself is all that the party obtaining it requires. Thus, a judgment which determines status does not call for specific enforcement because it is declaratory of the status of the particular person or thing adjudicated upon, and renders it such as it is declared…Such a judgment does not order recovery or payment of money, delivery or transfer of property, or any specific act or abstinence which may be subject to any of the various methods of enforcement… A declaratory judgment is complete in itself, since the relief is the declaration.” (Emphasis added)
Barnaby J stated that the ‘inescapable’ conclusion was that orders one to four of Anderson J's orders were declaratory, as they merely established the parties' interests in the properties set out in the 2007 claim. The orders are set out in paragraph [14] of her judgment as follows:
“1. The Claimant and the Defendant are each entitled to a fifty per cent (50%) interest in the property at Hopewell and registered at Volume 1313 Folio 776 of the Register Book of Titles.
2. The Claimant and the Defendant are each entitled to a fifty per cent (50%) interest in the properties at Sheffield and registered at Volume 1214 Folios 792 and 793 of the Register Book of Titles.
3. The Claimant and the Defendant are each entitled to a fifty per cent (50%) interest in the property at Pitkelleny and registered at Volume 134 Folio 933 of the Register Book of Titles.
4. The Claimant and the Defendant are each entitled to a fifty per cent (50%) interest in the property located at Lot 93, Nonpariel Land Settlement, Negril in the Parish of Westmoreland.”
At paragraph [16], she explained that the remaining orders were supporting orders:
“[16] The order numbered (5) then goes in aid of those which precede it, and prescribes the method for determining the value of the properties. Orders (6) to (9) direct the parties on how to proceed to realise their declared percentage interests. While those orders offer guidance to...
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