Gordon v Gordon

• Jurisdiction: Jamaica
• Judge: Stephane Jackson-Haisley J.
• Judgment Date: 15 September 2017
• Neutral Citation: [2017] JMSC Civ 125
• Docket Number: CLAIM NO. 2014HCV04646
• Court: Supreme Court (Jamaica)
• Date: 15 September 2017

[2017] JMSC Civ. 125

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

Jackson-Haisley, J. (Ag.)

CLAIM NO. 2014HCV04646

Between

Phyllis Gordon

Claimant

and

Pamela Gordon

Defendant

APPEARANCES

Ms. Allison Lawrence instructed by Nigel Jones and Co for the Claimant

Ms. Kimberley Downer instructed by Grayson & Co for the Defendant

Contract Law — Breach of Contract — Intention to Create Legal Relations-Consideration — Transfer of Property — Fraudulent Misrepresentation — Fraud — Sections 70 & 71 of the Registration of Titles Act — Rescission of Contract.

Coram : Stephane Jackson-Haisley J., (Ag.)

BACKGROUND

1 The Claimant, Phyllis Gordon, having once lived in the United Kingdom, returned to the land and parish of her birth, Trelawny, Jamaica over thirty years ago. She left behind her three children including the Defendant herein, Pamela Gordon. She is an elderly woman and is registered as disabled at the Jamaica Council for Persons with Disabilities. In light of her disability, she is unable to care for herself. Having regard to her condition, she made arrangements for her care and assistance, not with a stranger, but with her own daughter, the Defendant. According to the Claimant, she entered into a legally binding contract with the Defendant, who agreed to take care of her and in return she agreed to add the Defendant's name to the Certificate of Title for a property belonging to the Claimant which is located at Lot 60 Green Park in the parish of Trelawny.

2 The Claimant avers that in accordance with the contract she added the Defendant's name to the Certificate of Title, thereby transferring a half share of the property to the Defendant but that the Defendant has failed to provide the Claimant with the requisite care and assistance and has in fact neglected her. Further, she asserts that the Defendant made a false representation to her that she would provide such care when she knew that she had no intention to do so. She asks that the Court declare this transfer null and void on the grounds of fraudulent misrepresentation.

THE CLAIM

3 On October 2, 2014 the Claimant filed a Fixed Date Claim Form seeking the orders set out below:

• i. A declaration that the transfer of property located at Lot 60 Green Park in the parish of Trelawny, registered at Volume 136 Folio 674 of the Register Book of Titles, to Pamela Gordon as joint tenant be set aside as having been procured by Fraudulent Misrepresentation;

• ii. An Order that the Defendant deliver up the title to the property located at Lot 60 Green Park in the parish of Trelawny, registered at Volume 136 Folio 674 of the Register Book of Titles, to be transferred in the name of the Claimant;

• iii. An Order that the Defendant transfer the title for the said property to the Claimant; and

• iv. Costs

4 In support of her Fixed Date Claim Form the Claimant relies on three affidavits, the first filed October 2, 2014, the second filed February 4, 2016 and the third filed March 25, 2016. In summary, the evidence contained in her affidavits is that she entered into an agreement with the Defendant that the Defendant would leave the United Kingdom and come to live with her in Jamaica and would take care of her physically. Further, that it was agreed that the Defendant would arrive in Jamaica in September of 2011. According to the Claimant, at that time the Defendant was unemployed and living with an elderly gentleman in the United Kingdom. In consideration of services to be rendered by the Defendant she agreed to add and in fact did add the Defendant's name to the Certificate of Title for property located at Lot 60 Green Park in the parish of Trelawny. She alleged that despite this, the Defendant failed to move in with her during the agreed period of the year 2011, but instead moved in, in 2013 to live with her at Lime Klim Way, Falmouth, Trelawny. She indicated further that in 2012 she sent the sum of 2000 pounds sterling to the Defendant to cover the transportation cost of the journey to Jamaica but she failed to come until 2013. Additionally, she stated that when the Defendant finally came in 2013, she only resided with her for five months during which time she failed to even give her a bath.

5 She said she gave the Defendant full access to all the monthly pension she received amounting to a total of 1200 pounds sterling. She stated further that after the Defendant neglected her and moved out her house, the Defendant gave a Notice to Quit to the tenant in the upstairs section of the property at Lot 60 Green Park and thereafter moved into the upstairs section of the premises and rented the downstairs. Further that the Defendant collected all the rental income and has therefore denied her access to this property and deprived her of the monthly income from this property.

6 The Claimant also pointed out that the Defendant frequently allowed her boyfriend to come on the premises without her permission and that on one occasion she had to lock the padlocks to deny him access. She alleged that in December 2013 the Defendant neglected her and moved out of the premises leaving her unattended forcing her to employ the services of another person to take care of her. Further, that in January 2014 her grandson Joel Gordon Blake moved in with her and started assisting in her care.

7 In her first affidavit she alleged that as a result of the Defendant's failure to fulfil the condition upon which the transfer was executed she is asking the court to declare the transfer void and cause the property to be transferred to her as the sole proprietor. In the second affidavit she indicated that the Defendant made false representations that she would move to Jamaica to reside with her and take care of her, based upon which she added her name to the Certificate of Title.

8 In support of her case she also relied on the affidavit evidence of Joel Gordon Blake, her grandson and son of the Defendant. He also stated that it was in 2011 that the Claimant and the Defendant agreed that the Defendant would move to Jamaica to reside with the Claimant in exchange for the Claimant adding the Defendant's name to the Certificate of Title. He alleged that he was present when they entered into the agreement and supported the Claimant's account that despite the Claimant transferring the sum of 2000 pounds sterling to the Defendant for her airfare in 2012, she did not come to Jamaica until June of 2013. He stated further that by December 2013 the Defendant left the Claimant to take care of herself, contrary to what was agreed and as a result the Claimant had to hire another person to take care of her and that he moved into the premises to assist in caring for the Claimant.

9 The Defendant at first appeared in person and filed a Defence in which she agreed that she came to live with the Claimant in June 2013 but stated that the agreement was in fact for her to come in 2013 and not 2011 as alleged by the Claimant. She also pointed out that it was the Claimant who asked her to leave the premises after the Claimant assaulted and imprisoned her. The Defendant also filed a Counter Claim claiming the following reliefs:

• “1. Reimbursement for shipping cost of belonging (sic) and furniture for four thousand pounds sterling;

• 2. Reimbursement for flights to Jamaica for five hundred and ninety-nine pounds sterling;

• 3. Reimbursement for BMW vehicle sold five thousand pounds sterling;

• 4. Reimbursement for all the items that had to be given away because either I would have been charged extra at Customs and could not afford to pay for a full contained to ship these items;

• 5. UK lost (sic) of earnings to date, salary part time eighteen thousand pounds sterling;

• 6. Removal cost of my belongings from her residence thirty-five thousand Jamaican dollars;

• 7. Rent from tenants for income in Jamaica;

• 8. Reimbursement for tenant's outstanding water bill paid ten thousand Jamaican dollars;

• 9. Reimbursement for clearance of land twenty thousand Jamaican dollars;

• 10. Electrical and plumbing work to residence one hundred thousand Jamaican dollars;

• 11. University fees for change of career- six thousand pounds sterling;

• 12. National Insurance contribution for two years as worked twenty-eight years and requires two years payment for full UK pension which was agreed by Claimant upon return early;

• 13. Reimbursement for fire damages wooden louvres to windows sixty thousand Jamaican dollars agreed by Claimant;

• 14. Replacement of fire damages front door as agreed by Claimant forty-two thousand Jamaican dollars.

• 15. Reimbursement tot fire damage to painted exterior walls one can of five gallon paint thirteen thousand dollars;

• 16. Reimbursement for all travel cost to court twelve thousand Jamaican dollars to hire of vehicle on all occasion where necessary;

• 17. Any Court cost that might be incurred through these actions.”

10 The Claimant also filed a Reply to the Defence, the essence of which was repeated in her further affidavits. This is a matter which was commenced by way of a Fixed Date Claim Form and therefore the filing of a Defence and Reply was procedurally incorrect. In fact, at the First Hearing of the Fixed Date Claim Form the Court gave directions for the Defendant to file an Affidavit in Response. The matter thereafter proceeded along the usual course that matters commenced by way of Fixed Date Claim Forms usually proceed. However, since the Defence, Counter Claim and Reply were not withdrawn I will still consider the particulars contained therein to the extent that I find them relevant.

11 The Defendant filed an Affidavit in Response on June 8, 2016 wherein she pointed out that it was while on a visit to Jamaica in 2011 that she and the Claimant had discussions about the property. Further, that the Claimant promised to give her the property as that is what her father would have wanted and told her that she...