Downer (Richard Lindsay) v Erica Ann Downer
| Jurisdiction | Jamaica |
| Judge | Campbell, J. |
| Judgment Date | 24 May 2007 |
| Judgment citation (vLex) | [2007] 5 JJC 2401 |
| Court | Supreme Court (Jamaica) |
| Date | 24 May 2007 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
REAL PROPERTY - Beneficial interest
MATRIMONIAL PROPERTY - Division of property
(1) The court has oftentimes bemoaned the paucity of documentary evidence to support or rebut applications for division of matrimonial property and maintenance, the two issues with which the Court is here confronted. No such complaint can properly be made in this case, the court had the benefit of the evidence of chartered accountants, the parties joint income tax returns for several relevant years, a plethora of exhibits, consisting of mortgage statements, bank statements, drawings, account statement, property transfers, rental receipts, security deposits and lease agreements. The parties were cross-examined exhaustively at the hearings which took place over a period of 25 days.
(2) The parties were married on 7 th April 1979. The marriage lasted for 22 years. There is one child of the marriage who is now an adult. For both of them this was a second marriage. Each had two children from the previous marriage. The husband is a Chartered Accountant, and a partner with PricewaterhouseCoopers (Pricewaterhouse). The wife is an interior designer and a businesswoman.
(3) In 2002 the wife presented a petition for the dissolution of the marriage and applied under the Matrimonial Causes Act sections 20 (2) and 25 for maintenance. Previously, the wife had applied under the Maintenance Act and had been met by the husband's preliminary point alleging her adultery or that the husband reasonably believed that she had committed adultery.
(4) The husband now seeks certain declarations and orders by way of Originating Summons dated the 4 th July 2002, under the Matrimonial Causes Act. All the properties stated in the summons are registered in the name of the wife. The husband is therefore claiming a beneficial interest in these properties.
The properties were:
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(a) 22 Manor Court Mews, Kingston 8
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(b) 1 Caramel Avenue, Kingston 8
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(c) Sea Haven, Discovery Bay
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(d) Enchanted Garden, Ocho Rios
(e) Long Lane Limited, a company that owns 6 Long Lane, Kingston incorporated 1981.
(f) 405 Sombero Beach Road, Marathon, Florida.
The couple lived at four addresses during their twenty two years together.
The Applicant's Case
(5) The applicant, Richard Downer states that the couple was concerned with planning for their financial security. They thought that their combined assets and ability could help them achieve these goals. Mr. Downer felt that given the "economic climate" in which interest rates were below inflation, they would acquire houses, which would appreciate in value, in excess of the interest rate, and could be rented to cover the mortgage cost and sold from time to time to buy more houses. He said it was he who suggested the property owning activity to leverage the value of 1 Caramel Avenue. He states that at the time of the acquisition of the properties the parties shared a common intention "for the rewards of ownership to inure to the benefit of both of us. He explained that the reason an experienced man like himself allowed the properties to be registered in the sole name of his wife was that he believed that they would remain married to each other for the rest of their lives. He claimed that the funds he provided came from his capital account at his firm. As a result, the account became woefully deficient and was a constant source of embarrassment to him. He claims that this detriment, he would not have undergone were it not to fulfill the common intention that he and his wife shared that he should enjoy a beneficial share of the properties.
The Respondent's Case
(6) Mrs. Downer in her affidavit in response to Richard Downer's (first of five affidavits) states that at the time of her marriage to the applicant, she already was in possession of 1 Caramel Avenue, two acres of land in Stony Hill, $25,000 cash, a part of her mother's estate. She cited that in the 1970s that property values experienced an unprecedented fall. She claimed to have taken advantage of a rebound in the real estate market and rental properties that took place just prior to and following the general elections of 1980. This resurgence, which continued peaking in 1990 and finally ending with the passage of hurricane Gilbert. This brought about an increase in insurance costs, devaluations and increasing maintenance costs. She did not purchase another house. She denies the applicant's claim that there was a discussion about a joint economic effort. She claims that the parlous state of his capital account with his firm existed prior to their marriage, and he resisted her efforts by way of savings advice to remedy the situation.
The properties
Caramel Avenue
(7) It is agreed, that Caramel Avenue was a divorce settlement from Mrs. Downer's first husband. Mrs. Downer states that the applicant ascertained an appropriate rental figure and paid half of that figure when the family occupied that property. In addition, the applicant paid for the utilities, the staff, the pool maintenance, and for minor repairs. The husband has provided documentary support that he paid for an electronic gate. The wife's testimony is, it was a security measure brought on by his job. He bought a satellite dish, as it was "portable." The single item, according to the wife, that the husband can lay claim to was a set of wicker furniture that had been purchased in Montego Bay. The wife claimed that virtually all of the property acquisitions depended on the involvement of Caramel Avenue as security, and at one point it carried four loans.
(8) The applicant's case in respect of Caramel Avenue is that in 1996 a loan was taken secured on Sea Haven to substantially expand Caramel Avenue. The applicant claims that the first Long Lane rental had been used in the acquisition of Sea Haven, or alternatively, the Eagle Merchant Bank (Eagle) loan for Sea Haven was repaid from the jointly owned Long Lane rent as well. It was submitted on behalf of the applicant that since Sea Haven was used as security for the loan to expand Caramel Avenue, the applicant can be credited with a direct contribution to the expansion of Caramel Avenue.
Manor Park Drive
(9) The respondent claims this was the first house she purchased, her commitment to do so was on the same day she gave birth to her youngest son. She had purchased it, with proceeds from the equity in Caramel, for $125,000 on the 9 th September 1980 and sold it for $400,000 on the 18 th December 1982. Nonetheless she did not discharge the mortgage loan, using the capital in the interim.
(10) Mrs. Downer states that in August 1981, 8 Tennis Way was purchased, with rental from 1 Caramel Avenue, and the remainder with a mortgage from BNS trust. This was sold in 1990 and the entire net proceeds of $1,000,000 were utilized to purchase the applicant's shareholding in Long Lane Limited.
(11) 22 Manor Court Mews was purchased in 1982 with part proceeds from sale of 17 Manor Park Drive, and the balance borrowed from JNBS. The property was sold in December 2000 to reduce consolidated loan from Trafalgar Commercial Bank, claims Mrs. Downer.
(12) Mrs. Downer claims that, Sea Haven was purchased on 3 rd October 1985, and the title is still held by First Global Bank as security for the consolidated loan. The wife claimed that the applicant paid the staff at Sea Haven, at her insistence, since he used the facilities. For that same reason, she claims he bought a set of curtains for the property. The husband in cross-examination was not sure where the money came from to purchase Sea Haven. The contracts were in the wife's name only, and he was unable to say which company she had secured the mortgage from. There was no evidence of any direct contribution on the part of the husband.
(13) Marathon, situated in Florida, USA, was purchased in 1998. The wife claims to have been put on the title in recognition of her efforts to locate the property and supervise the furnishings thereof and at no point claimed that it was a gift. The applicant agrees that she made no financial contribution to the acquisition or the maintenance of the property.
(14) In 1986 found 21 Norbrook Mews, after leasing Long Lane to the British High Commission. Secured full purchase price from the Bank of Nova Scotia (BNS), plus six months mortgage. Norbrook Mews was sold in December 1992.
Long Lane Ltd.
(15) In respect of Long Lane, the wife claimed her initial input was approximately $300,000 in cash from the proceeds of sale of 17 Manor Park Drive. The applicant's input, despite the sale of Oakridge, was the proceeds of a loan. Long Lane cost $750,000.00, the mortgage being $500,000.00. The husband states that the loan that he took from Eagle in the sum of $1.1m was taken on November 22, 1988 one-half of which went to pay off the BNS mortgage. The house was purchased in the name of Long Lane Limited, a company wholly owned by the couple. He claims that Long Lane had been purchased to house the couples combined families, the space was not adequate however, and they could not afford the required expansion. In 1986 it was leased to the British High Commission.
(16) The husband contends that it was their common intention that he alone pay off the mortgage on Long Lane, this was $79,200 per annum, in addition, he would pay the maintenance charges. This position he said would only be tenable if he would not have to pay the rental at 22 Norbrook Mews as well. He states that he...
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