Harold Miller and OCA

• Jurisdiction: Jamaica
• Judge: Phillips JA,P Williams JA,F Williams JA
• Judgment Date: 15 January 2016
• Neutral Citation: [2016] JMCA App 1
• Docket Number: MOTION NO 20/2013
• Court: Court of Appeal (Jamaica)
• Date: 15 January 2016

[2016] JMCA App 1

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT CIVIL APPEAL NO 23/2012

Before:

The Hon Miss Justice Phillips JA

The Hon Miss Justice P Williams JA (AG)

The Hon Mr Justice F Williams JA (AG)

MOTION NO 20/2013

Between

Harold Miller

1 ^st Applicant

and

Ocean Breeze Hotel Limited

2 ^nd Applicant

and

Carlene Miller

Respondent

Breeze Hotel Ltd v Carlene Miller -

Phillips JA

1 The applicants (Harold Miller and Ocean Breeze Hotel limited) filed an amended notice of motion asking this court to grant conditional leave to appeal to Her Majesty in Council from the decision of the Court of Appeal delivered on 17 July 2015 on certain conditions, namely that:

• ‘(a) The Appellant/Applicant shall within 30 days from the date of the order enter into good and sufficient security in the sum of $1,000.00 for the due prosecution of the appeal; and

• (b) The Appellant /Applicant shall within 90 days of the date of this order take the necessary steps for the progress of procuring the preparation of the record and the dispatch thereof to England.’

2 The applicants also sought a stay of execution of the judgment of the Court of Appeal until the hearing and determination of the appeal by Her Majesty in Council, and that the costs of and incidental to the application be costs in the appeal to Her Majesty in Council.

3 The applicants relied on section 110(1)(a) of the Constitution of Jamaica for the grounds of the application, indicating that the decision of the Court of Appeal in respect of which they wished to appeal to Her Majesty in Council was a final decision in civil proceedings, and that the matters in dispute were in excess of the value of $1000.00.

4 The affidavit in support of the application was deposed to by the 1st applicant on his own behalf as well as on behalf of the 2 ^nd applicant in his capacity as principal shareholder. He testified that the main issue in the court below related to who was entitled to the beneficial interest in a hotel known as Yardley Chase in the parish of Saint Elizabeth, which is located on lands purchased by the respondent and himself during their marriage. The learned trial judge had given judgment in the 1st applicant's favour and ordered that the respondent transfer her interest in Yardley Close to him.

5 The Court of Appeal, he stated, overturned that order and ruled that the 1st applicant and the respondent were equally entitled to the beneficial interest in the land and buildings situated at Yardley Close. It was the contention of the 1st applicant that the court had examined the separation agreement between the 1st applicant and the respondent which was executed when the marriage was at an end, and had found that although the 1st applicant had made a greater financial contribution than the respondent, that contribution had been offset by his failure to meet the maintenance expenses in relation to the children of the marriage as required by the separation agreement.

6 The 1st applicant deponed as set out in the said notice of motion that the decision in the Supreme Court constituted a final decision in civil proceedings with the matters in dispute exceeding a value of $1000.00 and on that basis he had a right of appeal to Her Majesty in Council. The 1st applicant stated that he had a good arguable appeal, in that the Court of Appeal had erred, and he set out five issues which he considered worthy of consideration by the Privy Council, namely, the fact that there had been:

• (i) a misapplication of the Property (Rights of Spouses) Act (PROSA) as the court had relied on the common law and equity in error in determining the disputed issues in relation to the joint intention to hold the property in equal shares;

• (ii) a finding which failed to take into consideration the conclusions of the court below which had the benefit of seeing and hearing the witnesses;

• (iii) a rejection by the court of the trial judge's findings of fact and an examination of the matter ‘afresh’ with only the transcript of the evidence in the court below, which was an abuse of the powers of the court.

• (iv) an examination by the court of the settlement agreement between the parties but the agreement had not been examined in its entirety, which was therefore an error,

• (v) a finding that although the 1st applicant had made a greater financial contribution, that was offset by his failure to satisfy his obligations to maintain the children, which amount had not been ascertained and so his contribution was being offset by an amount unknown.

7 As Mr Michael Hylton QC and Mr Ransford Braham QC were of the view that the matter fell within the provisions of section 110(1)(a) of the Constitution, with which the court agreed, we granted the applicants conditional leave to appeal to Her Majesty in Council on the conditions set out in paragraph [1] herein. The only issue remainingtherefore was whether this court ought to grant a stay of execution of the judgment of this court pending the hearing and determination of the appeal by Her Majesty in Council.

8 On 18 December 2015, we made the following order with reasons to follow in due course:

‘It is hereby ordered that the execution of the following orders, namely orders five, six, seven and eight as amended of the judgment of the Court of Appeal dated 17 July 2015 shall be suspended pending the appeal to Her Majesty in Council:

(5) The first appellant and the first respondent shall secure a valuation of the property within 30 days of the date hereof. In the event that they shall fail to agree on a valuator, the Registrar of the Supreme Court shall be empowered to appoint a valuator. The cost of the valuation shall be paid by the parties in equal shares, but the payment shall be advanced by the first respondent.

(6) The property shall be sold and the proceeds of sale divided equally between the first appellant and the first respondent, subject to order 7 below. The first respondent shall have an option to purchase the first appellant's interest within 90 days of the date hereof. The purchase price shall be one half of the value of the property as found by the valuator. Should he fail to enter into a binding agreement to purchase the first appellant's interest in the property within that time, the first appellant shall be entitled within 30 days thereafter to enter into an agreement to purchase the first respondent's interest in the property. Should she fail to enter into a binding agreement within thattime the property shall be sold on the open market by public auction or by private treaty.

(7) The first respondent shall compensate the first appellant, in respect of her interest, for the use and occupation of the property from 7 November 2007 (the date of their stipulation in the Connecticut court), to the date of sale.

(8) The parties shall have liberty to apply to the Supreme Court in respect of the execution of any of the orders or any issue that arises therefrom save and except orders five, six and seven which have been suspended .’

These are the reasons for that decision.

9 Before analysing the competing contentions of the parties on the application for the stay of execution, it is however necessary to grasp the facts, in brief, of the matter in the court below and the rulings made by this court on the several issues arising before it.

Background

10 The facts of the case have been quite helpfully summarised in the judgment of Brooks JA.

11 The 1 ^st applicant and the respondent, having emigrated from Jamaica, were living in the United States of America (the United States) where they met and married. The marriage lasted 15 years. During the marriage they acquired six parcels of real estate, four in the United Sates and two in Jamaica. At the end of the marriage they entered into a separation agreement wherein they agreed that three of the four properties in the United States would be transferred to the respondent and the remaining one, there, would be transferred to the 1st applicant. By that agreement also, a property situated at Top Hill in the parish of Saint Elizabeth was to be transferred to trustees on trust for the three children of the marriage. The second property in Jamaica was not mentioned in the separation agreement. The interest in that property was therefore an issue in the court below and indeed, on appeal, the court recognised that the crux of the case was whether a judge in considering the division of property which was not included in an agreement between the spouses, was entitled to consider the allocation of the property dealt with in that agreement.

12 The property, as indicated, is at Yardley Chase in the parish of Saint Elizabeth, and was part of a larger tract of land. It was purchased in 2004 and the title was taken out in the names of the 1 ^st applicant and the respondent. Between 2004 and 2007 both parties participated in the construction of a hotel on the property. The respondent was employed to a bank in the United States and the 1 ^st applicant travelled to and from Jamaica to supervise the construction of the building and later the management of the hotel. Unfortunately the respondent was dissatisfied with the 1 ^st applicant's reporting to her on the operation of the hotel and unhappy about his relationship with its female manager. They separated in 2007, the respondent claiming that she had been prevented from entering the hotel. She later filed divorce proceedings and they signed the separation agreement on 1 December 2008.

13 The respondent claimed that she was entitled to the sole beneficial interest in the property as she had provided most of the financing to purchase the same, and alsofor the construction of the hotel, although she acknowledged that the 1 ^st applicant had carried out the transaction for the purchase of the hotel and had mainly been involved in the construction of the building. However it...