Kellier (Martin O'Keith) v Stephanie Kellier; Stephanie Kellier v Martin Kellier and Kenneth Kellier [Consolidated suits]
| Jurisdiction | Jamaica |
| Judge | Williams, J. |
| Judgment Date | 28 November 2006 |
| Judgment citation (vLex) | [2006] 11 JJC 2801 |
| Court | Supreme Court (Jamaica) |
| Date | 28 November 2006 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN COMMON LAW
REAL PROPERTY - Interest in property
Background
The ancillary claimant Stephanie Kellier, wanted to purchase a property, ultimately for investment purposes. She looked for and identified a property she felt could have been converted into a guest house.
Her relationship with the first ancillary defendant, Martin Kellier, was such that although they were in the process of being divorced she thought nothing of approaching him about purchasing the property since she was not financially able to do so.
The property located at Lot 344 Torado Heights in the parish of St. James was eventually purchased with Martin Kellier and the 2 nd ancillary defendant Kenneth Kellier named as the purchaser on the sale agreement. There is no dispute that the funds to buy it came entirely from Martin Kellier.
Stephanie Kellier is now claiming an estate and/or interest in the property and is asking the court to determine that interest. In her particulars of claim she said hers is an equitable interest by virtue of a gift from the 1 st ancillary defendant to her and the arrangements and intention of the parties at the time of acquisition.
In her witness statement she indicated she makes no claim to any portion of the property which the court finds to be the estate an interest of Kenneth Kellier, the 2 nd ancillary defendant. He is made party to the proceedings for the sole purpose of ensuring that the judgment is binding on him to secure enforcement if necessary.
Her Story
Stephanie Kellier asserted that having located the property and deciding to purchase it, she gave instructions for the agreement of sale to be prepared with Tanya Campbell,- her daughter.- and Kenneth Kellier, - a child of the marriage,- being named as the purchasers. She intended to secure a loan in their names since she was unable to secure financing in her own name due to other commitments with the bank. Her name she felt could be added to the title at a later stage. She claimed upon being advised that the income of Kenneth and Tanya was insufficient to secure the loan, she was advised to add Martin's name to the agreement. This she said was to improve her chances of getting the loan. She felt her name could be added later in accordance with an and/or nominee clause.
In her witness statement/evidence in chief she said she was advised by her then attorney against this course of action as she "would be at mercy of the parties to the agreement". She however felt nothing would go wrong and instructed the clause be added. She also said she removed Tanya's name since the agreement would slow down the process she was seeking to expedite.
She stated that Martin's name was being substituted for Tanya's and that both hers (Stephanie) and Tanya's would be added on transfer. She said she approached Martin and requested the sum of $908,000.00. She proposed to transform the premises into a guest house for use and benefit of herself and her minor children in view of the fact that she was about to become unemployed.
Under cross-examination she admitted that at the time of purchase there was only one minor child, Alex. She also said that if she had secured the loan without Martin's help she would repay it from proceeds from the guesthouse. Martin would have repaired and fixed the guesthouse with his own funds. She did not know how long this process would have lasted but in the interim she would have continued to work in America and used money from that to start repaying.
She agreed that although Martin initially applied for a loan with the same bank she was using, he eventually secured the loan from elsewhere to purchase the property although she cannot say why this was done.
At the time she approached him with the idea of purchasing the property she asserted that they were "together on". The $908,000.00 was in fact the deposit on the property - she said it was a gift. She agreed the cheque was not made oat to her but to the Administrator General, the vendor of the property.
Under cross-examination she said when the Realtors - New World - were involved and she gave them initial instructions, Martin was at that time only giving her the deposit - not buying the property for her. This was in February 2001.
Later in her evidence she said he was to purchase the property for her and her kids.
She however denied the deposit was handed to her after the contract was in Martin's and Kenneth's names. However, she agreed that only they were signatures to the sale agreement.
She insisted, when pressed that once Martin's name was on the agreement it was never to come off.
She in her witness statement explained that a dispute developed over the addition of Tanya's name resulting in Martin's refusal to sign the papers to add her name "even though he knew the property was not intended for his benefit or for him."
Under cross-examination she first sought to deny this explanation, but when confronted with her statement she said what contained there was true.
Further when she was asked under cross-examination if the property was never...
To continue reading
Request your trial