Josel Drummond v Faval Daley Drummond and Another

• Jurisdiction: Jamaica
• Judge: Anderson, K., J.
• Judgment Date: 19 April 2013
• Neutral Citation: [2013] JMSC Civ 61
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2011 HCV 08090
• Date: 19 April 2013

[2013] JMSC Civ 61

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2011 HCV 08090

Between

Josel Drummond

Claimant/Applicant

and

Faval Daley Drummond

1st Defendant

and

Pauline Woolley

2nd Defendant

Mr. Leonard Green , instructed by Chen, Green & Co. for the Claimant/Applicant

Mrs. Dionne Meyler — Reid for the Defendants

Application for interim injunction — Presumption of advancement — Whether presumption rebutted — Lack of bona fides of party seeking to have presumption rebutted — Exercise of discretion — Failure to fully disclose pertinent information

IN CHAMBERS

Anderson, K., J.

1 In this claim, the claimant is, as has been related to the court by the claimant's attorney and as is discernible from the claimant's Fixed Date Claim Form and Affidavit of Urgency in support of Fixed Date Claim Form, which has been deposed to by the claimant, seeking a declaration from this court, that the claimant is entitled to one-half of the legal and beneficial interest in the relevant property, which is lot numbered 150 as comprised in the Certificate of Title registered at Volume 1195 Folio 809 (hereinafter termed as “the relevant land”) and a declaration that the defendants hold one-half of the relevant land, which is located in the parish of Westmoreland, in trust for the claimant and an Order that the defendants transfer the claimant's interest to him pursuant to such declarations.

2 The defendants are the joint registered owners of the relevant land and hold the same as joint tenants. This is not disputed. It is equally undisputed that some years prior to the institution by the claimant of his Fixed Date Claim Form, in fact, in December of 2007, there was a transfer by the claimant to the defendants, of his interest in the relevant land and that such transfer was done by deed of gift under the Registration of Titles Act of Jamaica. Clearly, as at the date of that transfer, the relationship between the parties to this claim was a much more pleasant, happy and overall, calmer one than it now is. As is not unusual though, that relationship appears to have subsequently soured and clearly now therefore, this Fixed Date Claim Form is one of the many ensuing consequences. Indeed, things have even reached the stage, as between the first defendant and the claimant, who are spouses, but no longer reside together, such that there was, on January 19, 2011, an Order made in the Westmoreland Family Court, by Magistrate Dionne Gallimore Rose, on the application of the first defendant. Interestingly enough, that was a consent Order, whereby the claimant undertook not to do violence against the first defendant, not to threaten, harass or molest the first defendant and not to behave in any manner likely to cause the first defendant, harm or ill-treatment. That Order has been directed by that court, to remain in effect for three (3) years. This is interesting to this Court, not only because it makes it clear that the claimant and the first defendant have clearly, for at least the last few years, not been enjoying a comfortable relationship with each other, but also because the claimant has never, in any evidence filed before this court in respect of either his application for injunction relief, nor in support of his Fixed Date Claim Form, deposed to there existing as between himself and the first defendant, a consent domestic violence order which restrains him from engaging in certain violent, intimidatory or harassing conduct in relation to the first defendant. On the other hand though, in his Affidavit evidence which was deposed to on September 13, 2012 and filed on September 14, 2012, the claimant has specially stated that he is not a violent person. The failure to mention anything about the said consent Order in his Affidavit evidence, as also, his failure to mention other important details about his personal life, will be addressed by this Court, in this Judgment, below, as such failure will be relevant to the claimant's application which is before this court, for injunctive relief.

3 The Affidavit evidence of the claimant as filed in support of his Fixed Date Claim Form on December 30, 2011, deposes to the claimant and the first defendant having married on October 5, 1996, in the United Kingdom, where they lived until around 2008, when they moved back to Jamaica. The second defendant is the daughter of the first defendant and thus, is also the claimant's step-daughter. The Certificate of Title for the relevant property, has been exhibited to that said Affidavit and reveals that on February 10, 1999, the relevant land was transferred to the claimant and first defendant as tenants — in common, for the sum of $1,300,000.00 and thereafter, was transferred by way of gift, to all of the parties in this Fixed Date Claim Form matter, on November 17, 2003, as joint tenants. Thereafter, the relevant land was transferred, by way of gift, solely to the defendants and that transfer was effected on December 18, 2007. This last transfer was done in the defendants' favour, as joint tenants.

4 That which has come before me for adjudication in respect of this claim, is an interlocutory application by the claimant in which he seeks injunctive relief. He is seeking an injunction to prevent the defendants from denying him access to the property and by virtue thereof, also to the house on the property which forms the subject-matter of this claim.

5 The claimant has alleged, in his second Affidavit as filed on April 11, 2013, that he transferred his interest in the said property, exclusively to the defendants as joint tenants, solely for the purpose of protecting that which he has described in that Affidavit as being the, “family home”. He further alleges in that Affidavit, that he did so based on advice that he received from his financial advisers, that if he did not do so, the —“family home may be in danger” (para. 14). In his Affidavit in support of Fixed Date Claim Form, which, solely for the purpose of ease of reference, this court will hereafter refer to in this Judgment as “the claimant's first Affidavit”, he deposed to he and the first defendant having, after they got married, decided to buy the relevant land parcel, in order to construct thereon, their family home. Although the time period when said decision was made is not precisely discernible from any of the claimant's Affidavit evidence, it appears as though, if indeed said decision was made (this bearing in mind that the same has been expressly disputed by the first defendant in her joint Affidavit with the second defendant), that such decision was made whilst the claimant and the defendant were still residing in England. The claimant and the defendant were married while they were both residing and employed in England. The claimant has further alleged in his first Affidavit, that sometime around 2002, fire destroyed his business place and all its contents, as a result of which he then began experiencing grave financial difficulties and as such, filed for bankruptcy in the United Kingdom. Interestingly enough, the claimant was not attached to either of his Affidavits filed to date in respect of either his claim or his interlocutory application for injunctive relief, any court record or documentary proof of that which he has deposed to in respect of his filing for bankruptcy. This is interesting, because the defendants are contending that the claimant did not in fact file for bankruptcy in England, until 2008, and have attached to their defence, a notice which appears to be addressed to the claimant herein and which has, recorded, on it, the numbers —“676 of 2008”. This court cannot resolve any factual issues as to when it was that the bankruptcy notice was filed by the claimant, nor as to what was/were the reason (s) behind such filing. What is not in dispute, however, is that the claimant did file for bankruptcy in England.

6 The claimant has given no evidence of the extent of financial support (if any), which he provided, either for purchase of the relevant land parcel, or for the construction of the home which was eventually constructed on that land parcel. On the other hand, the defendants have provided detailed evidence to this court, inclusive of receipts, as regards large sums of money passed on to the claimant through the 1 ^st defendant's Victoria Mutual Building Society account, which she claims, were sums of money used to purchase the land parcel as well as to construct the house thereon and also evidence as to how those sums of money were acquired.

7 It is not in dispute though, that at some point in time the claimant and the first defendant both had returned to Jamaica and then began living together in the relevant house (precisely when that state of affairs began and whether the claimant and the first defendant returned to Jamaica either at or around the same time, or even years, is expressly disputed between...