Errol Gordon v Lorna June Gordon (nee Forsythe)
| Jurisdiction | Jamaica |
| Judge | Calys Wiltshire J. |
| Judgment Date | 18 May 2018 |
| Neutral Citation | [2018] JMSC Civ 120 |
| Docket Number | CLAIM NO. 2015 HCV 03020 |
| Court | Supreme Court (Jamaica) |
| Date | 18 May 2018 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
Wiltshire, J. (Ag.)
CLAIM NO. 2015 HCV 03020
IN CHAMBERS
Mrs. Yualande Christopher-Walker instructed by Yualande Christopher & Associate for the Claimant.
Mr. Orane Nelson instructed by Forsythe & Forsyth for Defendant.
Division of matrimonial property — Family home — Other property —Proceeds of sale of family home used to purchase other property— Other property registered solely to one spouse — Beneficial interest of spouse — Rent
Calys Wiltshire J. (AG.)
On the 12 th June, 2015, Errol Gordon filed a Fixed Date Claim Form seeking the following orders, among others:
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(1) A Declaration that the Claimant is beneficially entitled to fifty percent 50% interest in the property located at 6A College Crescent, Kingston 19, in the parish of Saint Andrew. (hereafter referred to as the subject property).
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(2) An order that the Defendant account for the rent received from the subject property from the date of purchase of the property to the date of this order and declare details of the tenancy including the names of tenants, the period of the tenancy and the rent.
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(3) An Order that the Claimant is beneficially entitled to fifty percent (50%) of the rent proceeds and the Defendant pays that sum to the Claimant within fourteen (14) days of the date of this Order.
Affidavits filed on 12 th June, 2015 and 13 th June 2017 were permitted to stand as Mr. Gordon's evidence-in-chief. Mrs. Gordon's affidavits filed on 11 th April, 2016 and 12 th July, 2017 were permitted to stand as her evidence-in-chief.
Mr. Gordon's evidence is that he and Mrs. Gordon decided to sell their home at Buckingham Avenue, in England and relocate to Jamaica. Prior to the sale they both searched for properties in Jamaica to purchase. Mr. Gordon searched online using real estate websites and Mrs. Gordon visited Jamaica to inspect properties.
He stated that during one of those visits the subject property was identified and he agreed to its purchase using monies which included the proceeds of the sale of the Buckingham Avenue property. Mr. Gordon said that the proceeds were being held in Mrs. Gordon's account at HSCB Bank and then at Victoria Mutual Society.
In the period before the purchase of the subject property they resided in rented premises in England. He said they agreed that Mrs. Gordon would first migrate to Jamaica and settle and then he would follow.
Mr. Gordon visited Jamaica in January/February and October 2012 and discovered that his name was not endorsed on the title as a registered owner. He said the Defendant assured him that convenience was the reason for her name alone being placed on the title, and his name could be added at a later time. Consequently, they continued to plan for their lives together in Jamaica and renovated the property.
He said therefore that he was shocked when divorce proceedings were initiated. He claims to be financially disadvantaged as all the proceeds of the sale of the family home in England went into the purchase of what would have been the parties' family home in Jamaica.
Regarding his ownership of land in Thatchwalk, Bull Savanah, in the parish of St. Elizabeth, Mr. Gordon said that it was left to him by his grandmother. He denied that Mrs. Gordon is entitled to half of said property.
Mr. Gordon agreed under cross examination that Mrs. Gordon had previously raised in 2006 that she wanted to separate. He conceded that there were problems with the marriage. However, he insisted that there was an agreement to sell their Buckingham Avenue home and relocate to Jamaica, and that was the only reason why he agreed to the sale of the house.
Mrs. Gordon denied that Mr. Gordon is entitled to fifty percent (50%) of the subject property. She confirmed that they together had bought and sold three homes, the last being the Buckingham Avenue, family home, in England. They both shared the mortgage responsibilities over the duration of their ownership of these properties.
Mrs. Gordon stated that from the net proceeds of the sale of the last family home in England she made payments for storage of their furniture and rent for their interim accommodation. She admitted transferring £100,000.00 of the net proceeds to Jamaica.
Mrs. Gordon denied the existence of any agreement to sell and relocate to Jamaica. She also denied that they both searched for properties to purchase in Jamaica and that Mr. Gordon approved her purchase of the subject property.
She had decided to migrate to Jamaica as their marriage was practically non-existent, she was under stress and in an abusive relationship and she needed time apart from Mr. Gordon. She also stated that additional funds were borrowed from the bank and friends to enable her to purchase the subject property. Further that she also put all her inheritance from her late mother into the property.
Mrs. Gordon bought the subject property in October, 2011. Both parties were in Jamaica in January/February, 2012 when the keys were handed over. Her evidence is that she decided to migrate to Jamaica in June 2012, and in July 2012, she told Mr. Gordon that she wanted a separation.
She further stated that Mr. Gordon knew from January 2012 that his name was not on the title. She said she neither gave an explanation for the omission nor discussed adding his name.
Mrs. Gordon stated that she alone stood the cost of refurbishing the kitchen at the subject property, and also bore sole financial responsibility for all other costs related to same.
Eventually under cross- examination Mrs. Gordon stated that Mr. Gordon was entitled to fifty percent (50%) of the proceeds of the sale of the Buckingham Avenue property.
Mrs. Yualandre Christopher- Walker has relied on the following cases in making her submissions,
By virtue of Sec. 2(1) of Property (Rights of Spouses) Act, (PROSA) Counsel contended that the subject property is the family home as Mr. Gordon contributed all of his half shares of the proceeds of sale of the last family home to its purchase. It was submitted that the subject property was the new intended family home, so Mr. Gordon was entitled to 50% based on Sec. 6 of PROSA.
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(i) Graham v. Graham [2010] JMCA Civ 12
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(ii) Brown v. Brown [2010] JMCA Civ 12
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(iii) Stewart v. Stewart [2013] JMSC Civ 121
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(iv) Gissing v. Gissing [1971] AC 886
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(v) McCormock v. Mc Cormock [2017] JMSC Civ 62
In the alternative Counsel submitted that even if the subject property was not the family home, Mr. Gordon would still be entitled to a percentage of same based on Sec. 14 (1) (b) of PROSA. Mrs. Christopher-Walker referenced Mr. Gordon's evidence of his direct financial contribution to the acquisition of the property, and his financial and non-financial contribution to the family and household for the period of the 29 years of marriage.
Regarding rental proceeds it was submitted that Mr. Gordon had been excluded from the possession of the subject property. Consequently, he had not had the benefit of shared rent proceeds from the lease of the subject property.
Counsel asked the court to also take into consideration Mr. Gordon's advanced age and health and his need to protect his assets which were eroded by the use of his half of the proceeds of sale to acquire the subject property. Mrs. Christopher-Walker submitted that the justice of the case required these factors to be taken into account.
Mr. Nelson relied on the following cases in his submissions:
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(I) Binger v. Ranger [2017] JMSC Civ 9
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(II) Brown v. Brown [2010] JMCA Civ. 12
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(III) Plummer v. Plummer [Delivered on 15 th June, 2009 per Anderson J. Claim No. HCV00846 of 2006.
It was submitted that the Claimant had failed to satisfy the requirements of Sec. 2(1) of PROSA as the subject property was never “used habitually or from time to time by the spouses as the only or principal family residence”
Mr. Nelson contended that the Claimant's admission that Mrs. Gordon placed the sale proceeds into her personal account “so that she could use it how she wanted” was evidence that the purchase of the subject property was solely the Defendant's.
It was further submitted that if the court was of the view that the subject property was the family home, then Sec. 7 of PROSA should be applied and the 50% equal share rule be varied. Counsel has asked the court therefore to look at the factors set out in section 7(1) of PROSA, as well as the financial and non-financial contributions made by the Defendant in respect to residences of the parties throughout the period of their marriage.
Mr. Nelson also submitted that the court should consider that Mr. Gordon had received a lump sum pension payment and award an interest of 20% to him. In the alternative, Mr. Nelson submitted that if the court found that the subject property was not the family home then the court should divide same on the basis of Sec. 14 (1) (b) & (2) of PROSA.
Counsel contended however that Mr. Gordon's contribution to the subject property was only in respect of its acquisition, not in respect of its conservation or improvement. Consequently, any interest awarded to Mr. Gordon ought not to take into account the property in its improved state.
On that view, Mr. Nelson argued that Mr. Gordon's interest should not be a percentage of the present value of the subject property as Mrs. Gordon improved same after the purchase, at her own expense.
Counsel submitted that at the time of the purchase in January 2012, Mr. Gordon's half proceeds of sale, £50,000.00 equated to 42% of the purchase price of the...
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