Fitzgerald Hoilette v Valda Hoilette

• Jurisdiction: Jamaica
• Judge: SIMMONS J (Ag.)
• Judgment Date: 04 August 2011
• Judgment citation (vLex): [2011] 8 JJC 0401
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2006HCV01526
• Date: 04 August 2011

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO. 2006HCV01526

BETWEEN

FITZGERALD HOILETTE

CLAIMANT

AND

VALDA HOILETTE

DEFENDANT

AND

DAVION HOILETTE

1 ^ST INTERESTED PARTY

AND

SIMEON DAVIS

2 ^ND INTERESTED PARTY

Miss Catherine Minto instructed by Nunes Scholefiel DeLeon & Company for the claimant

Mr. Gordon Steer, Miss D. Dowding, and Mrs. J. Cooper-Batchelor instructed by Chambers, Bunny & Steer for the defendant

Mr. Gayle Nelson and Miss A. Chapman instructed by Gayle Nelson & Co. for the interested parties

CIVIL PROCEDURE - Consent Order - Application to vary Consent Order - Whether Court has jurisdiction to vary Consent Order

SIMMONS J (Ag.)

1 This is an application by the defendant for the variation of a Consent Order made on the 7 ^th November 2008.

The Claim

2 By way of a Further Amended Fixed Date Claim Form dated June 20, 2007 the Claimant, Fitzgerald Hoilette, claimed inter alia against the defendant for a declaration that he is the legal and equitable owner of a fifty percent (50%) interest in the parties' matrimonial home at 76 Caribbean Park Estate, Tower Isle in the parish of Saint Mary, being all that parcel of land registered at Volume 944 Folio 28 of the Register Book of Titles. He also claimed for an accounting of all rent collected by the defendant and that fifty percent of that sum be paid to him.

3 On the 7 ^th November 2008 the parties consented to an order in the following terms:-

The terms of the agreement between the parties as set out in the consent order, were essentially the same reliefs sought by the claimant. Further orders were made which are not relevant to this application.

The application

• 1. A declaration is hereby made that the Claimant is the legal and equitable owner of a fifty percent (50%) interest in the parties' matrimonial home at 76 Caribbean Park Estate, Tower Isle in the parish of Saint Mary, being all that parcel of land registered at Volume 944 Folio 28 of the Register Book of Titles.

• 2. That the property is to be valued by a reputable valuator to be agreed upon by the parties, and failing agreement to be appointed by the Court.

• 3. The Claimant be permitted to purchase the Defendant's share or interest in the said property.

• 4. That if the Claimant fails to purchase the Defendant's interest, the property is to be sold by public auction or private treaty.

• 5. An order is hereby made that the Registrar of the Supreme Court be empowered to execute all documents, necessary to effect a transfer, in the event that the Defendant fails or neglects to do so.

• 6. An order is hereby made that the Registrar of Titles be empowered to issue a new Certificate of Title in the name of the Claimant, Fitzgerald Hoilette, upon proof of payment of the relevant sale price and taxes.

• 7. That all costs incidental to the sale of the Defendant's interest in the said property or the sale of the property including but not limited to the payment of transfer tax, stamp duty, registration and attorney's fees to be borne by the Claimant and the Defendant equally.

• 8. The Defendant is to account to the Claimant for all rents collected with respect to the rental of the said property from January, 2002 to the date of the order, with supporting documentation.

• 9. That the Defendant be ordered to pay to the Claimant 50% of the rent collected during the said period within twenty one days of the date of this order, together with interest on the said amount at a commercial interest rate from January 1, 2002 to the date of judgment.

4 The defendant has applied to the court for a variation of paragraphs 8 and 9 of the consent order to read:-

‘8. The defendant is to account to the claimant for all the rents collected along with the expenses incurred with respect to the renting of the said property from January 2002 to the date of the order, in order to arrive at the net rental owed to the claimant.

9. That the Defendant be ordered to pay to the Claimant 50% of the rent collected from January 1, 2002 to the date of this judgment.’

5 The amendment to paragraph 8 seeks to vary the terms of the consent order to provide that the defendant account for the net rental as against ‘all rents ’ collected by her.

6 With respect to the proposed variation of paragraph 9, the time frame for payment of the sums due and the requirement for the payment of interest have been removed.

Issues

7 The issue to be determined is whether the Court has the jurisdiction to vary the consent order.

The affidavit evidence

8 The defendant's evidence is that it was her understanding that the sum which was to be paid to the claimant after the accounting exercise would represent one half of the net rental, that is, the amount due after the deduction of operating expenses. She also states that the requirement for interest to be paid on that sum is oppressive as she has no other source of income and needs the rent to survive.

9 On January 20, 2011 a notice was filed by the claimant's attorneys in which it was indicated that they intend to rely on his affidavit sworn to on the 3 ^rd day of May 2010. In that affidavit the claimant states that the defendant has accounted for the rent collected by her up to May 2009. He also states that she has only paid $135,000.00 out of a total of $2,867,950.00 which is due to him (exclusive of interest) as at November 2009. The claimant also states that the defendant has not paid one half of the rent due to him from December 2009.

Defendant's Submissions

10 Mr. Steer submitted that the court has the jurisdiction to amend the order in the terms sought, as the proposed amendments would not affect the share that each party has in the property. He argued that the amendments are necessary to clarify the basis on which the accounting is to be undertaken and does not affect the substance of the order. It was also emphasized that the property in question was being run as a commercial enterprise and as a result any money spent on improvements ought to be considered in the accounting exercise...