Leslie Dacosta Williams v Teleith Evelyn Williams
| Jurisdiction | Jamaica |
| Judge | McDonald-Bishop JA,Edwards JA,Dunbar Green JA |
| Judgment Date | 29 July 2022 |
| Neutral Citation | JM 2022 CA 89 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO COA2019CV00046 |
| Court | Court of Appeal (Jamaica) |
| Year | 2022 |
[2022] JMCA Civ 30
THE HON Mrs Justice McDonald-Bishop JA
THE HON Miss Justice Edwards JA
THE HON Mrs Justice Dunbar Green JA (AG)
SUPREME COURT CIVIL APPEAL NO COA2019CV00046
IN THE COURT OF APPEAL
Rudolph Smellie instructed by Watson & Watson for the appellant
Gordon Steer instructed by Chambers, Bunny & Steer for the respondent
I have read, in draft, the judgment of Edwards JA and agree with her reasoning and conclusion. There is nothing I could usefully add.
This is an appeal against the refusal of Barnes J (Ag) (‘the learned judge’), to vary the terms of a consent order made between Leslie DaCosta Williams (the ‘appellant’) and Teleith Evelyn Williams (the ‘respondent’). The appellant, by way of an amended notice of application for court orders, had sought several orders with respect to the consent order, which were all refused by the learned judge on 9 April 2019. An agreement between the appellant and the respondent had been made following court-ordered mediation and a consent order was made by a judge of the Supreme Court, in the terms of the mediation agreement, pursuant to rules 42.7 and 74.12(1) of the Civil Procedure Rules, 2002 (‘the CPR’). Despite the passing of several years, the consent order was never executed or enforced. The appellant applied to the court to vary the consent order due to the impact of the passage of time.
The facts are briefly that the parties, who were married in 1994, were registered on 9 March 1988, as joint tenants of property located in Ironshore District, West End, Negril, in the parish of Westmoreland (‘the property’). They lived there as man and wife up until about 2001 to 2002, when, according to the appellant, the marriage broke down and he moved out. On 5 November 2003, a transfer instrument was registered on the duplicate certificate of title, purporting to transfer the property into the sole name of the respondent, for a consideration of £60,000.00. The transfer was effected pursuant to an instrument dated 30 July 2003, purporting to be signed by both parties. At the time of the purported transfer, the appellant alleged that he was living overseas and did not sign the transfer document.
As a result, the appellant filed a claim against the respondent in the Supreme Court in 2007, alleging, among other things, that the transfer to the respondent was fraudulent, and that the signature, purporting to be his signature on the transfer document, had been forged.
After attending mediation, on 6 April 2009, the parties came to an agreement as follows:
1. “The [respondent] shall have the option to pay the [appellant] the sum of $9,106,692.00 for his interest in the property situated at Torah Drive [part] of Ironshore, in the parish of Westmoreland and [registered] at [volume] 260 [folio] 581 of the [Register Book of Titles].
2. The [respondent] shall be given 120 days to exercise the option to purchase the interest of the [appellant] for $9,106,692.00.
3. If the [respondent] fails to exercise the option in 1 and 2 above the said property is to be sold by Private treaty with a Reserve Price of JA$25,000,000.00, and the [appellant] be paid the aforesaid sum of $9,106.692.00 out of the proceeds of sale.
4. The [appellant] undertakes to remove caveat number 1399785 lodged on the 26 th day of February 2006 at the appropriate time to facilitate the carrying into effect of the order.
5. No order as to costs of the suit.”
On 28 July 2009, the consent order was made by the court in the terms of that compromise agreement.
The consent order, therefore, gave to the respondent the first option to purchase the subject property, failing which, the property was to have been sold by private treaty and the stated portion of the proceeds given to the appellant. The respondent failed to exercise the option and no sale took place. In fact, no action was taken to give effect to the agreement until 22 June 2017, some eight years later, when the respondent sought to exercise the option in clause 1 by way of a professional undertaking from her attorney-at-law to pay the sum set out in the consent order on completion of the sale of the property. By letter dated 29 June 2017, the appellant's then attorney-at-law wrote to the respondent's attorney, sharing the appellant's concerns as to the effect of the significant time lapse since the settlement agreement, and the resultant ‘unanticipated’ and ‘inequitable’ windfall the respondent would receive if the appellant was only to receive the sum stated in the order, from the sale proceeds. The respondent's failure to account to the appellant for his interest in the property was also noted, and it was suggested that the parties allow the sale to proceed and the ‘unanticipated windfall’ be held on escrow until the matter could be settled. This was rejected by the respondent, who, by way of letter from her attorneys-at-law dated 11 November 2017, insisted that the appellant was entitled to no more than the sum of $9,106,692.00, as stated in the agreement.
Consequently, on 14 June 2017, the appellant filed a notice of application for court orders seeking to rescind the agreement, or alternatively, to vary it, or to restore the substantive claim and fix a date for a case management conference. Those orders were sought on the basis that the intent of the agreement had been frustrated by the mala fides of the respondent, and that the agreement had become unworkable due to the lack of cooperation by the respondent and the lapse in time. This was supported by an affidavit sworn to by the appellant, in which he deponed to those matters, as well as to the fact that the respondent had: (a) failed to make reasonable efforts to sell the property in which she resided and over which she had control; (b) failed to account for rental monies collected in respect of the property; (c) been attempting to sell the property behind his back. He indicated a fear that the proceeds of sale would be dissipated and that the respondent would return to the United Kingdom where she is a national.
On 28 February 2018, the appellant filed a notice of application for an interlocutory injunction, seeking to restrain the respondent from dealing with the property, pending the outcome or settlement of the action. This was supported by a further affidavit sworn to by the appellant, filed the same date, in which he set out: (a) the circumstances in which the alleged fraudulent transfer took place, (b) the circumstances under which the mediation agreement had been arrived at (which, he said, was based on an approximation of the parties' contribution and a market value of the property of $25,000,000.00, and which did not contemplate a delay of 10 years), (c) the respondent's failure to account to him for rent collected for the property during that time, and (d) the injustice to be caused to him if the injunction was not granted. The appellant also averred that the value of the property, as at that date, was between $40,000,000.00 to $45,000,000.00. However, no valuation was presented to the court but the appellant had attached an offer to purchase form to his initial affidavit, indicating the property had been offered for sale, by the respondent, for a price of US$335,000.00.
The respondent gave a brief response by affidavit, filed 17 April 2018, denying any liability, and stating that the sum agreed was based on a set sum of money and not upon any valuation of the property.
The appellant, thereafter, on 11 June 2018, substantially amended his notice of application for court orders, seeking that the court clarify, interpret, or construe the agreement to include several implied terms in respect of his entitlement to an equity in the property. This was further amended on 27 March 2019, so that, what was sought before the learned judge was the following:
“1 That the Settlement Agreement dated the 6 th day of April 2009 and the Order dated the 23 rd day of July 2009 made in terms thereof, be varied (clarified, interpreted, or construed) to include the following consequentially implied terms:
(a) that the Claimant is entitled to an equity in the property equivalent to the percentage of the value thereof that the sum of $9.1m holds to the reserve price of $25m, that is, to 36.4% of such value.
(b) that therefore the Claimant is entitled to an equity in the property of 36.4% of whatever price of $25m or above which the property may be sold for, plus said percentage of all the income derived therefrom, from the date of the Settlement Agreement, minus such percentage of all the reasonable expenses incurred on or in relation to the property from the said date
(c) That the property be sold by private treaty within 30 days of the determination of this matter, to which end either party may identify a suitable purchaser, failing which it be sold by public auction at the request of either of the parties or their Attorneys-at-Law.
(d) That the Claimant's Attorneys-at-Law shall have carriage of sale of the said property, and if either party shall fail or neglect for more than 14 days after being requested in writing by the Attorney-at Law [sic] of the other party to sign any document pursuant to said sale, then the Registrar of the Supreme Court is empowered to sign same in such party's stead.
2. That, accordingly, the said agreement be varied to read at 3 as follows
‘If the Defendant fails to exercise the option in 1 and 2 above, the property is to be sold by private treaty within a reasonable time of the expiration of the said 120 days, with a reserve price of JA$25,000,000.00, and the Claimant be paid the sum of $9,106,692.00 out of the proceeds of sale if there is unreasonable delay in such sale by private treaty for reasons other than...
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