Findlay (Selwyn) v Ingrid Findlay

• Jurisdiction: Jamaica
• Judge: SYKES J
• Judgment Date: 09 May 2008
• Judgment citation (vLex): [2008] 5 JJC 0901
• Date: 09 May 2008
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. HCV 723 OF 2004

BETWEEN

SELWYN FINDLAY

CLAIMANT

AND

INGRID FINDLAY

DEFENDANT

IN CHAMBERS

Laurel Gregg for the claimant

Marjorie Shaw Currie for the defendant

REAL PROPERTY - Division of property - Presumption of advancement - Beneficial interest

DIVISION OF PROPERTY - PRESUMPTION OF ADVANCEMENT - RESULTING TRUST - CONSTRUCTIVE TRUST - COMMON INTENTION - ACTS AMOUNTING TO ACTING ON COMMON INTENTION - SECTIONS 7 AND 8 OF THE STATUTE OF FRAUDS - MARRIED WOMEN'S PROPERTY ACT - PROPERTY (RIGHTS OF SPOUSES) ACT - POWER OF JUDGE TO REVISIT DECISION BEFORE PERFECTION OF ORDER.

SYKES J

1 This is an application brought by Mr. Selwyn Findlay under the Married Women's Property Act (MWPA) asking that the court declares the extent of his beneficial interest in three properties. The properties in order of acquisition are, (i) land registered at volume 1059 folio 228 of the Register Book of Titles in the names of Mr. Selwyn Findlay (the claimant), Mrs. Ingrid Findlay (the defendant), and Mr. Findlay two sisters, Mrs. Ingrid Lake and Mrs. Soraya Angela Hardie ('the Ironshore property'); (ii) land, also located in Ironshore, registered at volume 1059 folio 237 of the Register Book of Titles in the names of Mr. Selwyn Findlay and Mrs. Soraya Hardie ('the Charles Street property') and (iii) an apartment registered at volume 1234 folio 232 of the Register Book of Titles in the names of Mr. Selwyn Findlay and Mrs. Soraya Hardie ('the Sea Castle property'). The properties were acquired in 1996, 1999 and 2001 respectively. I have decided that Mr. Findlay has 100% beneficial interest in all three properties. These are my reasons. However, before giving the reasons I shall deal with a procedural matter that arose after I delivered by oral judgment on April 11, 2008.

2 The current proceedings which were launched by way of a fixed date claim form filed March 26, 2004 was supported by an affidavit filed on the same date. This claim form concerned only the Ironshore property. An amended fixed date claim form was filed on September 24, 2004. This amended claim now included the Charles Street property. Mr. Findlay filed a second affidavit in support of his case on September 24, 2004. Mrs. Findlay responded with her affidavit sworn on March 31, 2005. Mr. Findlay further amended his claim by filing another amended claim form filed on November 23, 2004. He now included the Sea Castle property. The last affidavit filed on September 13, 2005 in this matter was the third affidavit of Mr. Findlay.

An application to admit a new claim and an application to hear other evidence

3 Apparently, there are several claims in the Supreme Court dealing with various matters between Mr. and Mrs. Findlay. One of those matters is claim no. 722/2004. Shortly after I delivered oral judgment and made the order in respect of the properties at the end of this judgment (which was not perfected), I came across claim no. 722/2004. I looked in the file and saw a notice of application for court orders in which Mrs. Findlay was claiming, among other things, a half share of each of the properties that are the subject matter of this claim. This application was filed on February 21, 2005. The application was supported by an affidavit sworn by Mrs. Findlay on the same date. I mistakenly thought that they were documents filed in claim no. 723/2004. However, Miss K. Morgan, one of the clerks in the civil registry, pointed out my error, after counsel on both sides were contacted and the notice of application for court orders and supporting affidavit were brought to their attention.

4 Mrs. Shaw Currie saw notification of these documents as an opportunity to utilize the principle which allows a judge to revisit his judgment at any time before the order is perfected (see Stewart v Engel [2003] 3 All E.R. 518; Venetia Robinson v Fernsby [2004] W.L.T.R. 257 ). The result was that Mrs. Shaw Currie filed an application asking that the court (and here I am summarising) permits Mrs. Findlay to raise an additional claim in claim no. 723/2004 under the Property (Rights of Spouses) Act (PROSA) or in the alternative, to permit the consolidation of claims no. 722/2004 and 723/2004. This application came before me on April 18, 2008, one week after oral judgment was delivered. On April 18, 2008 I pointed out to Mrs. Shaw Currie that section 24 of PROSA barred her application and so it was pointless hearing submissions on what I considered to be an extraordinarily difficult application which did not have the slightest possible degree of success.

5 Section 24 of PROSA reads:

The commencement of this Act shall not affect -

• a) any legal proceeding in respect of property which has been instituted under any enactment before such commencement; or

• b) any remedy in respect of any such legal proceeding to enforce or establish a right, privilege, obligation or liability acquired, accrued or incurred before such commencement,

and any such legal proceeding or remedy may be continued or enforced as if this Act had not been brought into operation.

6 Mrs. Shaw Currie sought to say that PROSA permitted a court to apply this new statute to matters begun under the MWPA. She relied on the words "any such legal proceeding or remedy may be continued or enforced as if this Act had not been brought into operation". According to her, the word "may", being permissive, allowed the parties to choose whether to continue under the old law or under the new. In my view, this is a difficult position to maintain given the clear words of the legislation. In addition, section 25 (2) of the Interpretation Act emphasizes that accrued rights are not lost merely because a new statute is in place. There would need to be either an express provision to that effect, or by necessary implication, no other interpretation is possible. PROSA has no such express words and needless to say, it does not lead to any such necessary implication. My decision, therefore, is that the application to bring a claim under PROSA is dismissed. Mrs. Findlay is to pay the costs of the application to bring a claim under PROSA.

7 Mrs. Shaw Currie then applied for leave to appeal against the decision to refuse to allow a claim under PROSA. This application for leave to appeal was dismissed because it was not demonstrated that Mrs. Findlay had a real chance of success. The Court of Appeal has held that judges should not grant leave to appeal as a matter of course. Judges are to apply the test in rule 1.8 (9) of the Court of Appeal Rules. The rule provides:

The general rule is that permission to appeal in civil cases will only be given if the court or the below considers that an appeal will have a real chance of success .

8 This provision was referred to by the Court of Appeal in Paulette Bailey v Incorporated Lay Body of the Church in Jamaica and the Cayman Islands in the Province of the West Indies SCCA No 103/2004 (delivered May 25, 2005). In that case Campbell J. correctly declined to permit an amendment under rule 20.4 of the Civil Procedure Rules as they were before the 2006 amendment. That rule stated that no amended should be granted to a statement of case after the case management conference unless there was a change in circumstances which became known after the case management conference. Rule 20.4, as the Court of Appeal held, was very clear and admitted of no interpretation other than what the words clearly meant. Thus Campbell J. was correct in his interpretation and application of the rule. Nevertheless Campbell J. granted leave to appeal his decision. The Court of Appeal held that Campbell J. ought not to have granted leave because rule 20.4 was correctly interpreted and applied by him and there was no real chance of success. The order of Campbell J. granting leave to appeal was set aside. The principle therefore, broadly stated, is that where the words of document (including a statute or procedural rule) admits of only one reasonable interpretation and that interpretation is identified and applied then it necessarily follows that there is no real chance of success on appeal and so leave to appeal ought not to be granted. This principle applies here. There is no real chance that the Court of Appeal is going to say that section 24 of PROSA does not mean what it clearly says. Mrs. Findlay is to pay the costs of this application as well. This ruling did not exhaust the notice of application for court orders. The other applications were stood over until April 25.

9 Not to be deterred, Mrs. Shaw Currie, on April 25, 2006, amended her application by deleting the application to consolidate claim no. 722/2004 with claim no. 723/2004 and substituted instead an application to rely on the notice of application for court orders and supporting affidavit both of which were filed on February 21, 2005 in claim no 722/2004. That is to say, I was to take into account this evidence in the current claim before perfecting the order.

10 In supporting her application to take account of the "new found" affidavit and notice of application for court orders, Mrs. Shaw Currie sought to say that I could proceed by analogy with fresh evidence cases and take the "new evidence" into consideration. According to her, she did not know of this evidence before it was brought to her attention by the court. However, as Miss Gregg indicated, this evidence is not new in the way "new" is understood in the fresh evidence cases. It was evidence, if not known to the attorney, certainly known to Mrs. Findlay and so it could not be said that the evidence was unavailable at the time of the hearing. Miss Gregg also submitted that when claim no. 723/2004 was set down for hearing, Mrs. Findlay had every opportunity to add to her affidavit evidence filed in claim no. 723/2004 and she declined to do so. I would add to this...