Gloria Stewart v Herbert Williams

 
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[2018] JMSC Civ. 20

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

Laing, J

CLAIM NO. 2012 HCV 04765

Between
Gloria Stewart
Claimant
and
Herbert Williams
Defendant

Ms Simone N Gentles, instructed byRobinson, Gentles & Co, Attorneys-at-Law for the Claimant

Mrs Gloria Langrin, Attorney-at-Law for the Defendant

Property Division — Principles to be applied

Civil Procedure — Acknowledgment of service — Effect of admission contained therein — Effect of failure to apply for withdrawal of admission

IN CHAMBERS
1

The Claimant seeks a declaration that she is entitled to eighty percent and the Defendant twenty percent, of property known as Grey's Inn Estate and Fairy Land Pen in the Parish of St Mary being lot numbered sixteen on the plan of Gray's Inn Estate, registered at Volume 939 Folio 72 of the Register Book of Titles (“the Property”) as well as other consequential relief.

2

The Defendant asserts that he is entitled to fifty percent of the Property in keeping with the expressed legal interests as contained in the registered title in respect of the Property.

Background
3

The Claimant and the Defendant met in London, England and cohabited there between 1977 and 2002 or between 1978 and 2000 depending on which party's evidence one accepts.

4

The parties purchased the Property as tenants in common and the transfer was registered on the Certificate of Title dated 22 nd September 1983, in the names of Herbert Williams and Gloria Dunn. It is not disputed that the Claimant's maiden name was “Gloria Dann” and the reference to “Dunn” on the Certificate of Title was an error on which nothing turns.

The Claimant's case
5

The Claimant asserted that the Property was purchased for J$41,000.00 and that she contributed half of that sum from the money she had received following the end of her employment at the Guy's hospital. She asserted that there was a house on the Property when it was purchased and the Defendant built a building at the back. The Claimant made it absolutely clear in cross examination that she was not saying that she spent any money on the building that the Defendant added.

6

It was not contested that the house that was on the Property was in a state of disrepair and the Claimant reluctantly admitted that the Defendant sent J$28,000.00 to her with instructions to pay it to a contractor named Roy Anderson. That sum was duly paid pursuant to a written contract for “reconstruction” which was signed by the Claimant.

7

The Claimant initially asserted during cross examination that Mr Anderson did not use any of that money for the building “ not even one single nail” were her words. She said that Mr Anderson used the money for another building he was working on instead. Her evidence was that Mr Anderson did “ some work” although not from the $28,000.00 and that the Defendant had paid Mr Anderson to do “ somework” before he left for England. She explained that at the time Mr Anderson started to work on the house the Defendant was there “ so that part of the work is between he and Mr Williams. In answer to a question posed by the Court the Claimant conceded that the Defendant contributed to the repairs but “ not much”.

8

The Claimant's evidence is that when the construction came to a standstill, the house was a mere shell and was not habitable. She made arrangements with Mr Haffezula, a hardware merchant to obtain items on credit from him and make payments over time. She said that she also purchased items from other suppliers over the years. She employed another contractor named Ruel Wiseman to finish the house and also employed other workmen when he was unavailable.

9

Mr Wiseman also gave evidence on behalf of the Claimant and was cross examined. He confirmed that he was employed by the Claimant and did work on the Property but that this was not pursuant to a written contract. He said that he did various tasks as requested including, removing and replacing the front door as well as other doors, installing 11 windows, and replacing the entire ceiling.

10

The Claimant's position in support of her claim, is that she did extensive improvements to the Property over the years including, remodelling the old bathroom and replacing the bathtub, adding a helper's quarters, and a verandah the latter of which was extended and renovated using decorative blocks, replacing the back galvanised zinc fence with a concrete wall and adding decorative blocks to the front boundary wall.

11

The Claimant also asserted that the Defendant told her that the house belonged to her based on the amount of work and money that he knew she had spent on it and that it was alarming to her that he would now say that all the monies spent on the repairs were done by him.

The Defendant's case
12

The Defendant asserted that the Property was purchased using only his funds and that explains why the receipts issued by the Attorney Mr Belnavis who handled the purchase were all in his name. He included the Claimant's name on the title as tenant in common as she was his girlfriend. He said he opted to have the parties hold the Property as tenants in common because it was his intention that his children would eventually have his interest. He said she did not participate in the process for the acquisition of the Property until it was time for her to execute the documents. He admitted that the Claimant did expend some of her money on the Property and that she did supervise the work, but said that she could not have afforded to finance the repairs and as a consequence he sent her money for that purpose. The Defendant exhibited a number of Western Union money transfer receipts which show him sending various sums of money to her.

The applicable law
13

It should be noted from the outset that this is not a claim pursuant to the Property (Rights of Spouses) Act (PROSA). As a consequence the claim falls to be determined in accordance with well established common law and equitable principles relating to the division of property. The objective of this Court in these proceedings is therefore to declare the respective interests of the parties to the Property and not to adjust or redistribute property rights in order to accord with what might be considered to be principles of fairness.

14

Support for the continued existence of the right to bring a claim outside PROSA may be found in the consolidated appeal of Angela Bryant Saddler v Samuel Oliver Saddler and Fitzgerald Hoilette v Valda Hoilette and Davion Hoilette [2013] JMCA Civ 11. The appellant in the Hoilette appeal filed a fixed date claim form with affidavit in support thereof pursuant to sections 16 and 17 of the Married Women Property Act (“MWPA”) for division of the matrimonial home and another piece of property. A Judge on 10 th July 2007 granted permission to amend the fixed date claim form to include a claim under PROSA since sections 16 and 17 of the MWPA had been repealed on 1 st April 2006 when PROSA came into effect. The learned Judge also ordered that the amended fixed date claim form filed on 20 th June 2007 stand as a valid claim form. Subsequently on a preliminary objection, another Judge held, following the case of Allen v Mesquita, [2011] JMCA Civ 36, that there had been no prior application for leave or extension of time to file the fixed date claim form and accordingly there was no valid claim under PROSA before the Court.

15

One of the issues considered on appeal was whether a claim form is valid if filed under a repealed statute and in addressing the issue the Court confirmed the ability of the Court to determine the respective common law, equitable, and legal rights and remedies independently of PROSA. At Paragraphs 51 and 52 of Saddler and Hoilete (supra), the Court of Appeal stated the following:

51
    By section 48 of the JSCA [Judicature (Supreme Court) Act], a judge of that court was given the power to recognize all equitable estates, titles and rights and all equitable duties and liabilities, and remedies and to grant such relief as could have been granted in the Court of Chancery before the passing of the JSCA. The Court was also given the power to give effect to all legal claims, demands, estates, rights, duties, obligations and liabilities existing at common law or by any custom or created by statute. In fact, section 48(g) of the JSCA reads thus: “The Supreme Court in the exercise of the Jurisdiction vested in it by this Act in every cause or matter pending before it shall grant either absolutely or on such reasonable terms and conditions as to it seems just, all such remedies as any of the parties thereto appear to be entitled to in respect of any legal or equitable claim properly brought forward by them respectively in such cause or matter; so that as far as possible, all matters so in controversy between the said parties respectively may be completely and finally...

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