Herbert Reid v Michelle Neita Reid

• Jurisdiction: Jamaica
• Judge: Bertram Linton, J.
• Judgment Date: 15 November 2016
• Neutral Citation: [2016] JMSC Civ 204
• Docket Number: CLAIM NO. 2013 HCV 01870
• Court: Supreme Court (Jamaica)
• Date: 15 November 2016

[2016] JMSC Civ 204

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

Coram:

Bertram Linton, J. (AG.)

CLAIM NO. 2013 HCV 01870

Between

Herbert Reid

Claimant

and

Michelle Neita Reid

Defendant

Mr. Ruel Woolcock instructed by Ruel Woolcock & Co. for the Claimant

Ms. Marlene Uter and Ms. Anastassia McLeish instructed by Messrs. Alton E. Morgan & Co. for the Defendant

Family Law — Division of matrimonial property — Whether property bought before marriage is matrimonial property — Whether section 13 and 14 of PROSA are relevant — Whether application under PROSA is within time — Whether husband entitled to rent for use of property.

IN CHAMBERS

Background

1 The Claimant husband has applied for orders in relation to the division of two properties namely 7 Hollywood Close, Kingston 6, Saint Andrew (hereinafter referred to as Hollywood) and 25 Bridgemount Heights, Kingston 8, Saint Andrew (hereinafter referred to as Bridgemount) pursuant to the Property Rights of Spouses Act (hereinafter referred to as PROSA). The Defendant wife has also applied for determination of her interest in the two properties and disclosure of the Claimant's interest in several motor vehicles and assets.

2 The parties were married on 23 ^rd of April, 1993 and separated sometime in either 1996 or 1997. Mrs. Reid applied for dissolution of the marriage and a Decree Nisi was granted. No Decree Absolute has yet been applied for.

3 In 1989, Mr. and Mrs. Reid purchased Bridgemount for the sum of Four Hundred Thousand Dollars ($400,000.00). This was prior to their marriage. They contributed jointly to the deposit of one hundred thousand dollars ($100,000.00). Thereafter, they each acquired mortgages to cover the additional cost while still residing at Mrs. Reid's apartment.

4 After the purchase of Bridgemount, the couple renovated the property in order to make it tenantable. An additional sum of one hundred thousand dollars ($100,000.00) was borrowed among other costs incurred. Both contributed to the renovations. They carried out extensive works to the property to include plumbing and gardening services as well as the rebuilding of walls and the installation of an automatic gate and water tanks. The Claimant also used funds from the sale of a property he owned at Worthington to assist in this regard. Thereafter, the duplex on the property was rented.

5 In 1992, the couple purchased Hollywood for One Million Three Hundred and Fifty Thousand Dollars ($1,350,000.00). In order to cover the cost, the parties acquired additional mortgages. Again, they both contributed to the renovation of this property. Mr. Reid by providing financial support and Mrs. Reid by contribution to the running of the home and some financial assistance. The rental income from Bridgemount was used to pay the mortgages for both Bridgemount and Hollywood as well as assisting with living expenses. They were both also employed.

6 When they got married in 1993, they resided at Hollywood. In 1997 when they separated, Mrs. Reid and the two children relocated to live in one of the Flats at Bridgemount. At this time, the rental income was reduced as Mrs. Reid occupied one of the duplexes. She collected the rental from the other and continued making the mortgage payments for both Hollywood and Bridgemount. In 2008, she unilaterally took the decision to reconfigure Bridgemount and convert the duplexes into one house giving her reason, as the fact that the boys needed their own rooms. Later in 2009 after she was made redundant, she modified the property to facilitate a ‘bed and breakfast’ establishment in order to generate income for herself. In 2010, she ran into financial difficulty as the business could not sustain them. As such, she sent the children to reside with Mr. Reid at the Hollywood property. None of these decisions were made with consultation or with the agreement of the Claimant.

The Claim

7 Mr. Reid claims the following relief against Mrs. Reid in his Amended Fixed Date Claim Form dated August 10, 2015:

• a. A Declaration that he has a 50% beneficial interest in Hollywood (the Family Home);

• b. An Order that the Hollywood property be sold and the net proceeds be divided equally;

• c. A Declaration that he has a 70% beneficial interest in Bridgemount;

• d. An Order that the Bridgemount property be sold and the net proceeds be divided in keeping with that order; and e. An Order that Mrs. Reid ought to pay rental income for the years 2008 to present when she unilaterally changed the agreed tenure of her occupation of the property from one which was an income earning asset for both parties to solely a residence and later to one which was an income earner for her sole benefit.

8 It is to be noted that the Defendant wife had filed a Further Amended Notice of Application and a Further Affidavit in support on June 15, 2016 in contravention of the orders of Mr. Justice Laing who had specified that ‘parties are at liberty to file additional evidence in affidavit on or before 30th September 2015.’ This was struck out on the application of the Claimant.

9 Mrs. Reid claims the following relief against Mr. Reid in her Amended Notice of Application filed on November 5, 2014:

• a. A Declaration that she has a 50% beneficial interest in the Hollywood property;

• b. A Declaration that she has no less than 80% beneficial interest in the Bridgemount property;

• c. An Order that Mr. Reid transfer his beneficial interest in the Bridgemount Property by way of gift in exchange for her transferring her beneficial interest to him in the Hollywood property by way of gift; and d. An Order that Mr. Reid declare all income, investments, savings, monetary instruments, real and personal property, estate or interest in real or personal property, any money, any negotiable instrument, debt or chose in action, or another right or interest whether in his possession or not.

• In other words, she was asking for disclosure of any other assets that the Claimant may have.

Undisputed Issues

10 From the outset several issues may be disposed of:

• (a) There has been no viva voce evidence and no cross examination or submissions in relation to this last application for disclosure of the various other assets alluded to in the application of the Defendant. Therefore, there is no evidence on which I could rely in order to make a determination as to disclosure. So, I will make no orders in that regard.

• (b) It is undisputed that the parties view Hollywood as the family home and that they both agree to they are entitled to share it equally. As such, there is no need to go into a lengthy discussion as to whether the equal share rule ought to be applied or whether it should be altered.

• (c) Even though there is no agreement between the parties as to whether the application under PROSA is out of time:

  • i. The Defendant is not taking issue with the substantive application itself as to determination of the property rights, and in their submissions have openly conceded that they do not object to an extension of time to bring the application being granted; and

  • ii. They agree that there would have been the possibility of bringing the action when the Decree Absolute is finalized and as such, the court finds that it is in keeping with the overriding objective in relation to the reduction of litigation and the saving of expense as well as a logical and proper use of the Court's resources that the hearing on these issues should proceed.

Issues left to be decided

11 The issues which remain unresolved are:

• a. Should the extension of time be granted;

• b. What beneficial interest does each party have in the Bridgemount Property; and

• c. Whether Mr. Reid is entitled to claim rental income from Mrs. Reid for the years 2008-present and if so in what amount.

Analysis

I have given careful thought to all the submissions presented and all the arguments and case law as cited, I have no intention of reiterating them here in detail but will refer to them as is necessary to explain my reasoning and decision in this matter.

Analysis

A. Extension of time

12 This claim has been brought in keeping with the requirements under PROSA. The section to which I am referring is Section 13 which prescribes that an application for division of property ought to be made within twelve months of separation of the couple.

13 The relevant portions of Section 13 of PROSA provides that:

13.—-(1) A spouse shall be entitled to apply to the court for a division of property—

• (a) on the grant of a decree of dissolution of marriage or termination of cohabitation; or

• (b) on the grant of a decree of nullity of marriage; or

• (c) where a husband and wife have separated and there is no reasonable likelihood of reconciliation; or

• (d) where one spouse is endangering the property or seriously diminishing its value, by gross mismanagement or by wilful or reckless dissipation of property or earnings.

(2) An application under subsection (1) (a), (b) or (c) shall be made within twelve months of the dissolution of a marriage, termination of cohabitation, annulment or marriage or separation or such longer period as the Court may allow after hearing the applicant.

14 In light of this, the sub-issues which arise are:-

• (a) Whether the application made by Mr. Reid is barred based on the fact that he has applied for division of property some sixteen years after his separation from Mrs. Reid;

• (b) If (a) is answered in the affirmative, is there any redress for his claim.

15 In the case of Angela Byran-Saddler v Samuel Oliver Saddler SCCA No. 57/2009 and Fitzgerald Hoilette v Valda Hoilette and Davian Hoilette SCCA No. 137/2011, Phillips, JA considered the proper interpretation of section 13 of PROSA in conjunction with sections 2,3,4,6,7,14 and 24 and its implications on the requirements of an application for extension of time. Among other...