Haddad (Peter) v Arlene Beverley Haddad

• Jurisdiction: Jamaica
• Judge: FORTE, P.
• Judgment Date: 20 April 2007
• Neutral Citation: JM 2007 CA 13
• Judgment citation (vLex): [2007] 4 JJC 2002
• Court: Court of Appeal (Jamaica)
• Date: 20 April 2007

JAMAICA

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE FORTE, P THE HON. MR. JUSTICE PANTON, J.A THE HON. MRS. JUSTICE MCCALLA, J.A

BETWEEN

PETER HADDAD

APPELLANT/DEFENDANT

AND

ARLENE BEVERLEY HADDAD

RESPONDENT/PLAINTIFF

Miss Hilary Phillips, Q.C. and Kipcho West Grant, Stewart, Phillips & Company

Gordon Steer Chambers, Bunny and Steer

MATRIMONIAL PROPERTY - Division of property

FORTE, P.

1 I have read in draft the judgment of McCalla, J.A. I agree with the-. reasons and conclusions therein and have nothing further to add.

2 PANTON, J.A.:

3 I too agree with the reasons and conclusions of McCalla J.A. and have nothing to add.

4 McCALLA, J.A.:

5 1. This is an appeal by Peter Haddad (the husband) from an order made by Harrison, J (as he then was) on an application by Arlene Haddad (the wife) by originating summons.

6 By her summons the wife sought a declaration as to their respective interest in premises known as Hampstead in the parish of St. Mary and other ancillary reliefs related thereto.

7 2. Both parties presented evidence by affidavits, oral evidence elicited in cross-examination as well as documentary evidence. At the conclusion of the trial Harrison J made the following orders:

"It is hereby ordered as follows:

Both the applicant and the respondent are beneficial owners to the extent of 50% each in premises known as Hampstead in the parish of St. Mary registered at Vol. 1090 Folio 214 of the Register Book of Titles.

The applicant and respondent are joint owners of Bally Farms Limited.

A valuation of the property and farm be done by a reputable firm of valuators to be agreed upon by the parties.

The cost of the valuation be borne equally by the parties.

The property and farm be sold thereafter and the proceeds therefrom be divided equally between the parties.

The Registrar of the Supreme Court is empowered to sign any and all documents to effect a registrable transfer if either of the parties is unable or unwilling to do so.

The applicant is the sole owner of the bank accounts held in Florida and Canada.

The respondent is called upon to account to the applicant with regards the funds held in the Canadian foreign account.

The parties are joint owners of the bank account held at the Bank of Nova Scotia in Highgate, St. Mary and the funds in this account be divided equally between the parties.

Each party is responsible for his or her own costs.

There shall be liberty to apply."

8 3. In or about 1973 the husband who was a travelling salesman aged 19 years met the wife, then aged 24 years in the parish of St. Mary. She was working full-time in her family's business and was the person in charge of it. They developed a friendship which blossomed into marriage in 1976. Prior to their marriage they had embarked on a search for a matrimonial home.

9 4. They identified the Hampstead premises as being suitable and the husband attended an auction and made a deposit on the house which is situated on 45 acres of land. The purchase price was $40,000.00 The deposit came from the business of the wife's family. The husband obtained a mortgage of $35,000.00 from his employer and the conveyance of the premises was taken in his sole name. The husband paid the monthly mortgage by way of salary deductions. Repairs were carried out on the home to make it habitable. The wife continued to work in her family business throughout the marriage and during the course of the marriage on numerous occasions the wife advanced monies to him, which she took from her family's business, for various projects in relation to the Hampstead property. In 1981 at the wife's suggestion the balance of $21,000.00 that was owing on the mortgage was paid off, also with monies which the wife took from her family's business. These monies were repaid by the husband in some cases over several years and were all interest free as there had been no discussion of interest payable. From the family business operated by the wife, she supplied all the grocery requirements of the home. She bought furniture and also paid for the husband's clothing. In or around 1985 the husband left his regular employment and worked solely on the farm which had been established on the property. They separated in 1992 and in 1994 they were divorced.

10 Subsequent to the departure of the wife, the husband carried out extensive improvements to the property.

11 4. In the Court below and in written and oral submissions before us the husband, through his counsel, maintained the position that he wanted to obtain a home for himself and his wife to reside in and he also wished to fulfill his dream of becoming a farmer. The sums advanced by his wife through her family's business were loans which have been repaid. There had been no discussion of interest at the time the monies were advanced and none was paid. He has contributed to household expenses throughout the marriage. There was no common intention at the time of acquisition of the property, for the wife to have a beneficial interest. Save for monies advanced which have been repaid, the wife has made no contribution and the repairs done to the house and the development and improvement of the property was his sole endeavour as the wife continued to work in her family's business daily.

12 5. The wife contends through counsel, that prior to the marriage both parties had embarked on a search for a suitable matrimonial home and together had viewed several properties. At the time of acquisition of the Hampstead property her then fiance said that since they were not married, it would be easier for the transaction to be in his name alone. Throughout the marriage she has supplied groceries, paid household bills, performed duties in connection with the farm as well as provide clothing for the husband. The funds which she took from her family's business to pay the deposit was for the benefit of both parties as it was a common understanding that the property would be the matrimonial home owned by them jointly. In making the further advances of money in connection with the farm as well as the repayment of the mortgage without interest, she had acted to her detriment, based on their common understanding. This secured a great advantage to the husband. Her continued employment in her family's business had enabled her to make those monetary loans as the business of which she was in charge made far more money than he did and she had far more to offer him. in light of all these factors the learned judge was correct in granting her joint ownership of the property.

13 6. The grounds of appeal are as follows:

"(a) The learned trial Judge erred in law in that he erroneously held that the Appellant and the Respondent are beneficial owners to the extent of fifty percent (50%) each in premises known as Hampstead in the parish of Saint Mary registered at Volume 1090 Folio 214 of the Register Book of Titles without sufficiently analyzing the affidavit evidence before the Court and failed to properly access the oral evidence of the Appellant and Respondent.

(b) The learned Judge erred in law in that he made a finding that the Appellant and the Respondent are joint owners of Bally Farms.

(c) The learned Judge erred in fact, in that he did not sufficiently address the inconsistencies in the Respondent's viva voce and affidavit evidence.

(d) The learned Judge erred in law in the treatment of the evidence of the Appellant.

(e) The learned Judge erred in law in that he failed to perform the declaratory function required under Section 17 of the Married Women's Property Act.

(f) The learned Judge misdirected himself when he found that there was common intention.

(g) The learned Judge misdirected himself in the law in finding that the Respondent's conduct should be seen as acting to her detriment."

14 7. Miss Hilary Phillips, Q.C., counsel for the appellant contended that the learned trial judge erred in finding that the evidence established that there was a common understanding between the wife and the husband that the property was bought for both of them since they were planning to marry. She urged that the repayment of sums advanced by the husband is consistent with a recognition that he was the sole owner of the property and cannot support a claim to contribution to purchase price in order to secure a beneficial interest in the property. The respondent had minimal input in the operations of the farm and the husband has expended large sums of money on the improvement and enhancement of the property. She argued that the wife's action is not consistent with her having any beneficial interest in the property and even if she did, the learned trial judge erred in not making a finding that the husband had an enlarged share in keeping with the substantial improvements made by him.

15 Counsel for the husband relied on the case of Lloyd's Bank PLC v Rossett [1990] 1 All ER. 111. This is a case where property was acquired in the husband's sole name. The wife participated in effecting repairs and improvements to make the building more habitable. The court rejected her claim to a beneficial interest in the property as her contribution was found not to be in accordance with a common intention to have a beneficial interest in the property.

16 8. Miss Phillips Q.C. also relied on the case of Davis v Vale (1971) 2 All E R 1021 in support of her submission that the wife not having made any contribution to the substantial improvements effected to the property after her departure, could not properly be entitled to a one half share. She said that the learned judge did not sufficiently address the evidence and the law relating thereto and thereby fell into error.

17 Counsel referred to inconsistencies in the evidence of the wife. One example to which she referred was the wife's evidence in her affidavit that she had paid...