Karen Elizabeth Watson-samuels v Jeddie Michael Bourne

• Jurisdiction: Jamaica
• Judge: A. Nembhard J
• Judgment Date: 01 June 2021
• Neutral Citation: [2021] JMSC Civ 90
• Docket Number: CLAIM NO. SU2019CV02085
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. SU2019CV02085

Between

Karen Elizabeth Watson-samuels

1 ^st Claimant

and

Jeddie Michael Bourne

2 ^nd Claimant

and

Vernon Vincent Bourne

3 ^rd Claimant

and

Michael Samuels

Defendant

IN CHAMBERS

Mr Ewan Thompson instructed by Ewan Thompson and Associates for the 1 ^st, 2 ^nd and 3 ^rd Claimants

Ms Kerona Spence for the Defendant

Division of property — The proper procedure for the commencement of proceedings under the Property (Rights of Spouses) Act — Whether the purported claim is an irregularity or a nullity — Whether the irregularity is a defect that can be cured — Limitation period — Whether the purported claim is statute barred — Effect of failure to file an application to extend time to apply for the division of property — The division of property under the Partition Act — The Property (Rights of Spouses) Act, sections 2(1) and 13, The Partition Act, sections 2(2), 4 and 5, The Civil Procedure Rules, 2002, rules 8.1(4), 8.8, 26.9, 76.3, 76.4 and 76.6

A. Nembhard J

INTRODUCTION

1 This matter concerns the property rights of the Claimants and the Defendant. The 1 ^st Claimant, Mrs Karen Elizabeth Watson-Samuels and the Defendant, Mr Michael Samuels, were married on 9 September 2012. The marriage was dissolved on 21 September 2018.

2 The 2 ^nd Claimant, Mr Jeddie Michael Bourne and the 3 ^rd Claimant, Mr Vernon Vincent Bourne, are the children of Mrs Watson-Samuels.

3 In 2014, Mrs Watson-Samuels and Mr Samuels purchased property located at Lot 219 Olive Park, Santa Cruz, in the parish of Saint Elizabeth, being the land comprised in Certificate of Title registered at Volume 1351 Folio 410 of the Register Book of Titles (“the subject property”).

4 The subject property was purchased for Two Million Eight Hundred Thousand Dollars ($2,800,000.00), of which Mrs Watson-Samuels contributed the sum of Five Hundred Thousand Dollars ($500,000.00). Mr Samuels contributed the sum of Two Million Two Hundred Thousand Dollars ($2,200,000.00). 1

5 The subject property is registered in the names of the parties as tenants in common in unequal shares; four undivided one tenth shares and interest to Mrs Watson — Samuels; four undivided one tenth shares and interest to Mr Samuels; one undivided one tenth share and interest to Mr Jeddie Michael Bourne; and the remaining one undivided one tenth share and interest to Mr Vernon Vincent Bourne.

6 Mrs Watson-Samuels and Mr Samuels are the joint legal owners of a 2007 Toyota Mark X registered 0400GQ (“the motor vehicle”).

7 Mrs Watson-Samuels is the sole proprietor of the business K-Dzyne which is located at 60 Main Street, Santa Cruz, in the parish of St. Elizabeth.

THE ISSUES

8 The following issues arise for the Court's determination: -

• a. Whether there is a valid claim before the Court to initiate proceedings under the Property (Rights of Spouses) Act;

• b. What is the effect of the twelve (12) month limitation period prescribed by section 13(2) of the Property (Rights of Spouses) Act;

• c. Whether the property located at Lot 219 Olive Park, Santa Cruz, in the parish of Saint Elizabeth, being the land comprised in Certificate of Title registered at Volume 1351 Folio 410 of the Register Book of Titles, should be sold and the proceeds of sale distributed in accordance with the respective shares of the parties, in accordance with the Partition Act;

• d. Whether the Defendant is entitled to more than a fifty percent (50%) share in the 2007 Toyota Mark X registered 0400GQ; and

• e. Whether the Claimants are entitled to occupation rent from the Defendant in respect of the property located at Lot 219 Olive Park, Santa Cruz, in the parish of Saint Elizabeth, being the land comprised in Certificate of Title registered at Volume 1351 Folio 410 of the Register Book of Titles.

THE FIXED DATE CLAIM

9 By way of a Fixed Date Claim Form, filed on 17 May 2019, (“the Fixed Date Claim”), the Claimants seek the following Orders: -

• a. That the property situate at Lot 219, part of Bybrook called Olive Park, in the parish of Saint Elizabeth which is registered at Volume 1351 Folio 410 of the Register Book of Titles and owned by the Claimants and Defendant as tenants in common, be sold and the proceeds of sale distributed amongst the parties according to their respective shares in the property;

• b. That the said property be valued by a reputable valuer to be agreed upon by the parties and the cost of the valuation be borne by the parties according to their respective shares in the property;

• c. Alternatively, that the Defendant do pay the Claimants for their respective shares in the property within ninety (90) days of receipt of the valuation report;

• d. That the Registrar of the Supreme Court be empowered to sign all such documents necessary to effect the sale of the property, or, to give consent where consent is necessary in the event any of the parties shall, for whatever reason, fail and or refuse to sign any such documents necessary to give effect to the Order of the Court, or, to give consent where consent is necessary;

• e. That the Defendant do pay to the Claimants, occupational rent for occupying their respective shares in the property, commencing on the 1 ^st day of October 2017, to the date of the determination of this matter and the valuer be ordered to determine the fair and reasonable monthly rental of the said property for that purpose;

• f. That the Defendant do pay to the 1 ^st Claimant within thirty (30) days of the Order of this Court, her half share in the 2007 Toyota Mark X registered 0400 GQ, which is owned by the 1 ^st Claimant and the Defendant jointly, failing which the said motor car is to be sold on the open market and the proceeds of sale distributed equally between the 1 ^st Claimant and the Defendant;

• g. An Order that the said 2007 Mark X motor car be valued by a reputable motor vehicle assessor to be agreed on by the parties within fourteen (14) days of the Order of this Court and the cost of the valuation be shared equally between the 1 ^st Claimant and the Defendant;

• h. An Order that, in the event of the sale of the property situate at Lot 219 Olive Park, Santa Cruz, in the parish of Saint Elizabeth, the Claimants' Attorney-at-Law has carriage of sale;

• i. That in the event the Mark X motor car is to be sold, the parties shall within thirty (30) days of the Order of this Court agree on an Auto Broker who shall be responsible for effecting the sale of the said motor car and the fees due to the Auto Broker be paid equally by the 1 ^st Claimant and the Defendant;

• j. Such further or other relief as this Honourable Court deems just; and

• k. Costs and Attorney-at-Law costs.

THE DEFENDANT'S RESPONSE

10 For his part, Mr Samuels is claiming an entitlement to pursue his ‘claim’ under the Property (Rights of Spouses) Act and to obtain benefits enunciated in that statute, including declarations of the legal and beneficial interests in the division of property, other than the family home.

11 In his Affidavit in Response to the Fixed Date Claim, which was filed on 9 December 2019, Mr Samuels seeks the following Orders: -

• a. A Declaration that the Defendant is entitled to a fifty percent (50%) legal and beneficial interest in the business K-Dzyne, located at 60 Main Street, Santa Cruz, in the parish of Saint Elizabeth; and

• b. A Declaration that the Defendant is entitled to a two thirds (2/3) legal and beneficial interest in the property located at Lot 219, part of Bybrook called Olive Park, in the parish of Saint Elizabeth, being the land comprised in Certificate of Title registered at Volume 1351 Folio 410 of the Register Book of Titles.

THE CLAIMANTS' SUBMISSIONS

The subject property

12 Mrs Watson-Samuels contends that she purchased the subject property with Mr Samuels, in 2014. She contends that it was agreed that her children would be gifted shares in the subject property and that, as a consequence, their names were added to the Certificate of Title in respect of the subject property.

13 Mrs Watson-Samuels avers that, in addition to her contribution to the purchase price of the subject property, she bore additional expenses amounting to in excess of Two Hundred Thousand Dollars ($200,000.00). This included attorney's fees, transfer tax and the cost of obtaining a valuation report in respect of the subject property.

14 Mrs Watson-Samuels does not accept Mr Samuels' assertion that the three (3) bedroom dwelling house situated on the subject property was constructed solely by him. She asserts that they pooled their resources to construct the dwelling house; that monies were withdrawn daily from her business to purchase materials for the construction of the said dwelling house and to pay the construction workers.

15 She asserts that, in or around February or March 2017, she demanded that the subject property be sold and that Mr Samuels has been uncooperative.

16 Mrs Watson-Samuels does not agree that the respective shares of the parties in the subject property may be varied under section 7 of the Property (Rights of Spouses) Act and asserts instead that the property rights in the subject property ought properly to be determined under The Partition Act.

Occupation rent

17 The Claimants contend that since December 2016, Mr Samuels has been occupying the subject property to their exclusion and that, as a result, they have been unable to realize any benefit from the subject property.

18 Mrs Watson-Samuels contends that Mr Samuels' conduct demonstrates that he never intended for them to live together as a family at the subject property. She contends further that, since September 2017, she has been unable to visit the subject property, as a result of Mr Samuels' hostility towards her.

19 As a consequence, the Claimants seek occupation rent for the period 1 October 2017 to the date of the determination of the instant matter, at a monthly rate...