Elertant Ubanks v Dorette Ubanks

JurisdictionJamaica
CourtSupreme Court
JudgeWolfe-Reece, J
Judgment Date18 June 2020
Docket NumberCLAIM NO. 2018HCV00633
Date18 June 2020

[2020] JMSC Civ 117

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISON

CLAIM NO. 2018HCV00633

Between
Elertant Ubanks
Claimant
and
Dorette Ubanks
1 st Defendant

and

Owen Burnette
2 nd Defendant

Mr. Denzle Latty and Ms. L. Edwards for the Claimant

Mr. Linton Walters and Ms. Deniece Beaumont Walters for the Defendant

LAND LAW — Partition Act — Application for sale of property-Joint Tenants-Presumption of Trust

IN CHAMBERS
Wolfe-Reece, J
INTRODUCTION & BACKGROUND
1

This claim is for the partition and sale of ALL THAT parcel of land part of ELTHAM in the parish of SAINT ANN being the Lot numbered NINETEEN comprised in the Certificate of Title registered at Volume 1217 Folio 788 also known as 19 Selbourne Gardens, Smith Terrace, Ocho Rios in the parish of St. Ann.

2

The parties in the claim are the joint registered proprietors of the abovementioned property. The Claimant, Mr. Elertant Ubanks on the 20 th February 2018 filed a Fixed Date Claim Form against his ex-wife, Mrs. Dorrette Ubanks (1 st Defendant) and her adult son who was born to her from a previous relationship, Mr. Owen Burnette (2 nd Defendant). The Claimant seeks the following orders:

  • i. An order that the subject property be sold with first preference to the Defendants and that the net proceeds be equally shared as joint tenants.

  • ii. An Order that should the Defendants choose not to exercise their option to purchase the interest of the Claimant, that the said premises be sold by private treaty and the proceeds shared in accordance with their respective interest. The Claimant's Attorney-at-law to have carriage of sale in any event.

  • iii. An order that the property be valued by a reputable valuator to be agreed by the parties failing which one should be appointed by the Registrar of the Supreme Court should either party fail and/or refuse to execute the necessary documents.

  • iv. An order allowing the claimant's attorney to pay all the relevant taxes, costs, fees, and disbursement and to then pay each party their respective shares from the net proceeds.

  • v. An Order that the Agreement for Sale and/or the Instrument of Transfer and/or any other document be signed by the Registrar of the Supreme Court should either party fail and/or refuse to execute the necessary documents.

CLAIMANTS' CASE
3

The crux of the claimant's case is that he and his ex-wife, Miss Dorrette Ubanks, were solely responsible for the purchase of the property and that Mr. Owen Burnette's name was merely added to the title out of convenience. Mr. Ubanks noted that Mr. Burnette made absolutely no contribution to the purchase of the property. He contends that the subject property was acquired on the 26 th day of August, 2009 when sums were taken from a joint account held by himself and the 1 st Defendant at Sun Coast Bank in Florida.

4

Mr. Ubanks' evidence is that, not only did he contribute to the purchase of the property, he also contributed to the construction of the house on the property. He gave evidence that the 1 st Defendant was laid off from Avatar Holdings in or about the year of 2010 and that as a result of her being unemployed, she was not in a position to fully contribute to the construction of the house on the subject property.

5

The Claimant's further evidence is that he deducted a total of Twenty — Nine Thousand Four Hundred and Sixty-Two United States Dollars and Seventy-Five cents ($29,462.75 USD) from his 401K for the purpose of constructing the house on the subject property.

6

Mr. Ubanks rebuffs the argument that the 2 nd Defendant contributed to the purchase of the property or to the construction of the house thereon. The Claimant argued that at the time of the purchase and construction, Mr. Burnette was not financially able to contribute towards the financing of same because his company was in a financial bind. It was further argued that even though the 2 nd Defendant's name appears on the title, he was not intended to have a beneficial interest in the property and his name was only added because of the maternal relationship between the 1 st and 2 nd Defendant.

7

The Claimant noted that he no longer sees the need to hold the property as joint tenants with the Defendants. He is therefore asking that the property be sold and that he be apportioned half of the current market value of the property.

8

Mr. Latty, Counsel for the Claimant, argued that “while there is a clear presumption that joint legal ownership naturally and invariably runs parallel to beneficial ownership” the presumption may be rebutted by evidence which shows that the beneficial ownership is different from the legal ownership. He relied on paragraph 56 of the judgment of Stack v Dowden [2007] UKHL 17 to support his point.

9

Counsel also submitted that in order to determine how the beneficial ownership should be apportioned, the court should look to the intentions of the parties at the time when the property was acquired. Counsel relied on paragraph 32 of the case of Fowler v Barron [2008] EWCA Civ 377, which was applied by D. Fraser J in the case of Vernal Ernest Patterson v Millicent Ann Nelson Patterson [2019] JMSC Civ 10. In that case, the following was expressed:

“For the purpose of determining the parties' shared intentions about the beneficial ownership of the property, the court must consider the whole of the parties' relationship so far it illumines their shared intentions about the ownership of the property and the court must draw any appropriate inferences.”

DEFENDANT'S CASE
10

Mrs. Dorrette Ubanks filed an affidavit in response on the 9 th July, 2018 which formed a part of her evidence wherein she denied that the Claimant and the Defendants held the property in equal shares. Instead, she argued that Mr. Ubanks is entitled only to 15% of the purchase price of the property less 15% of the closing cost associated with the purchase.

11

Mrs. Ubanks noted that what the parties acquired when they purchased the property in 2009 was the land only. She noted that the property was purchased for the sum of Five Million Two Hundred and Eighty Thousand Dollars ($5,280,000.00) plus closing costs of Three Hundred and Seventy-Six Thousand Six Hundred and Thirty-One dollars ($376,631.00).

12

Mrs. Ubanks' evidence is that subsequent to the purchase of the property both her and the 2 nd Defendant financed the building of a structure on the premises and that their combined contribution to date totals Thirty Million Three Hundred and Seventy-One Thousand Two Hundred and Sixty-Eight Dollars and Forty-four cents ($30,371,268.44). She argued that the only contribution which the Claimant made to the property was the sum of Five Hundred Thousand Dollars ($500,000.00) which he contributed to the purchase price.

13

Mrs. Ubanks did not dispute that the Claimant withdrew monies from his 401K, however, she denied that such sums were contributed towards the construction of the building on the property. Instead, she argued that the Claimant was engaged in the construction of a building at Pimento Walk, Saint Ann, Jamaica at the same time that the property in dispute was purchased. She stated in her Affidavit that the sum that the Claimant claims to have deducted from his 401K was used for the construction of the building on the Pimento Walk property and not towards the purchase and the building on the property in dispute.

14

Counsel Mr. Walters also relied on the case of Stack v Dowden [2007] UKHL 17 in submitting that the presumption that ‘ equity follows the law’ can be rebutted by showing that the beneficial interest differs from the legal ownership with the onus being on the party who asserts that the beneficial interest is divided other than equally, to prove same.

15

Counsel also advanced the principle of “common intention” to urge on the Court that based on the conduct of the parties, it is abundantly clear that an equal beneficial interest was never intended as the Claimant only contributed Five Hundred Thousand Dollars ($500,000.00) which is equivalent to 15% of the purchase price. Counsel went further to argue that the case at bar can be distinguished from cases where the parties were former spouses who purchased property for use as a family home or residential property. Nor is the case synonymous to cases where the parties pooled their resources for the common good. It was submitted that the building was never the family home, nor did the parties ever hold a joint account, whether during, before or subsequent to the marriage.

16

Mr. Walters also argued that based on the principle of resulting trust, the beneficial interest of the respective legal proprietors can be apportioned based the parties' individual contribution towards the purchase of the property. Counsel relied on the recently decided case of Horace Boswell v Jennifer Johnson [2019] JMSC CIV 17 on this point.

17

In light of the foregoing, the Defendants are seeking the following orders:

  • i. That the Claimant is entitled to $500,000.00 with interest, as his sole contribution to the purchase of the land, with the purchase price being Five Million Two Hundred and Eighty Thousand Dollars ($5,280,000.00);

  • ii. That the Claimant's name be removed by the Registrar of Titles pursuant to the Registration of Titles Act from the Duplicate Certificate of Title registered at Volume 1217 Folio 788 and a new Duplicate Certificate of Title be issued in the names of the 1 st and 2 nd Defendants;

  • iii. That in the event that the Court rules that the Claimant is entitled to the interest claimed, that an equitable accounting be undertaken to ascertain the Claimant's liability towards the property registered at Volume 1217 Folio 788 and that one third of the expenses be due and payable by the Claimant, to the Defendants;

  • iv. That further in the event the Court rules that the Claimant is entitled to the interest claimed in the property...

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