Lewis (Narine Marlene) v Anthony Patrick Lewis

• Jurisdiction: Jamaica
• Judge: CORAM: ANDERSON J.
• Judgment Date: 29 October 2009
• Judgment citation (vLex): [2009] 10 JJC 2901
• Court: Supreme Court (Jamaica)
• Date: 29 October 2009
• Docket Number: CLAIM NO. HCV 03544 OF 2007

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN HIGH COURT CIVIL DIVISION

CLAIM NO. HCV 03544 OF 2007

BETWEEN

NARINE MARLENE LEWIS

CLAIMANT

AND

ANTHONY PATRICK LEWIS

RESPONDENT

MATRIMONIAL PROPERTY - - Interest - Declaration of interest in property - Whether the claimant has a legal interest in property registered in the sole name of the respondent - Trust principles - Property (Rights of Spouses) Act

CORAM: ANDERSON J

1 This is an application by the Claimant under the provisions of the Property (Rights of Spouses) Act. By a Fixed Date Claim Form dated October 2008, the Narine Marlene Lewis (The Claimant"" seeks the following:

• 1. The Claimant is entitled to the half interest in the following:

  • a. Lot 518 Long Mountain Country Club, Kingston 6 in the Parish of St. Andrew, registered at Volume 1385 Folio 701 of the Register Book of Titles

  • b. Lot 6 Duncan Bay in the Parish of Trelawny, registered at Volume 1070 Folio 68 of the Register Book of Titles;

  • c. Lot 42 Norbrook Estates Kingston 8 in the Parish of St. Andrew, registered at Volume 1107 Folio 280 of the Register Book of Titles;

  • d. The business trading as "The Phone center;

  • e. Vehicles in the names of the parties, more particularly a 1999 Toyota Land Cruiser and 1999 Mitsubishi Galant;

  • f. Joint investments at various financial institutions.

• 2. That a report on and valuation of the said property be taken or alternatively that a valuation agreed upon by the Claimant and the Defendant (sic) be taken and that costs of the said valuation of the property be shared equally by the parties.

• 3. That an accounting be done to determine the Claimant's one-half interest in the business. That the said accounting is to be done by an agreed accountant who is to be agreed upon by the Claimant and the Defendant (sic) and that the costs of the said accounting be shared equally by the parties.

• 4. That if no valuator or accountant can be agreed then one shall be appointed by the Registrar of the Supreme Court.

• 5. That in the event that the Respondent is unable to purchase the said property and be put for sale on the open market or by public auction or by private treaty.

• 6. The Registrar of the Supreme Court is empowered to sign any and all documents necessary to bring into effect any and all orders of this Honourable Court if either party is unwilling to do so.

2 The claim being asserted by the Claimant is strongly resisted by her husband, Anthony Patrick Lewis, (the "Respondent"). The evidence in respect of the claim and the resistance thereto, is provided mainly by the affidavit of the Claimant dated September 5, 2007, the affidavit of the Respondent dated March 20, 2008, the Claimant's affidavit in response dated April 25, 2008 and a further affidavit of the Respondent dated July 28, 2008. According to the evidence of the Claimant which is not denied by the Respondent, the couple commenced a relationship in the early 1990s and got married on October 6. 1996. Prior to the marriage the couple had cohabited at premises at 24 Carnation Way in Mona Heights. Sometime around 1997 to 1998, the couple who both were employed to commercial banks, decided to purchase residential property and they used their National Housing Trust benefits and amounts from their joint savings to acquire property at Apartment 32c, 71 Barbican Road.

3 It is the evidence of the Claimant that in 1998 the Respondent was made redundant by his employer, the National Commercial Bank Limited, and in 1998/1999, he became a full-time student. She further stated that from 1999 to 2001 the Respondent was not "formally employed", but would do some "hustling".

4 According to the Claimant, the couple took a decision that "the Respondent would go into business fulltime and a shop was acquired at Pavilion Mall and we sold cellular telephones and accessories and small appliances in about September 2001". This business, the Phone Centre, is still a going concern and is one of the main items of contention between the parties. She then goes on to detail her own involvement in the business saying that she would work after her own work day was complete and most Saturdays and holidays. She also said that she worked at the business while she studied for a degree at university. It is also not in dispute that during a period of about three (3) months when the Claimant was between jobs, she worked consistently at the business. The Claimant further says that the money to start the business came from the redundancy payment the Respondent had received as well as the couple's joint savings. That business is still being maintained at the Pavilion Mall but the Claimant says she has been excluded from the business since the marriage went into difficulties in about November 2006.

5 It was the further evidence of the Claimant that during the course of cohabitation, the couple had purchased pieces of real property including the following:

• a) Lot 42 Norbrook Estates Volume 1107 Folio 280, in joint names;

• b) Lot 588, Long Mountain, Volume 1365, Folio 701, in joint names;

• c) Lot 6, Silver Sands, Duncan Bay, Trelawny, in the Respondent's name.

6 She also claimed to be entitled to a half interest in motor vehicles registered in their joint names, in particular a Toyota Prado SUV and a Mitsubishi Galant motor car. She further claimed a half interest in various accounts which were maintained by them either individually or jointly on the basis that, notwithstanding any account being in only one name, the intention of the parties at all relevant times was that the accounts and/or investments were always intended to be joint.

7 Among other things, the Claimant complains that she had been the subject of abuse by her husband and that, as a result of his treatment of her. she had to seek the protection of the Family Court which made a Protection Order on her behalf in 2007. From her affidavit it also emerges that the Family Court had in or around August 2007, ordered the Respondent to return to her the Toyota Prado which he had taken from her residence on July 19. 2007.

8 The Respondent, on the other hand, acknowledges that the Long Mountain property was indeed purchased in both their names but avers that he has contributed the bulk of the money towards the purchase and improvement of the property. In particular, he claims that he paid the deposit and the closing costs, while the balance of the mortgage financing was obtained from the Victoria Mutual Building Society. He also asserts that before the couple moved into what clearly became, in my view, the family home, he had extended it from a two-bedroom to a three-bedroom residence with an additional bathroom and a den, extended the kitchen and washroom with further improvements to other rooms. Thereafter, he had also added a patio and deck and an outdoor jacuzzi.

9 With respect to the other real estate purchased, he concedes that they had together purchased the apartment in Barbican as well as the property in Norbrook. However, he said that the property in Duncan's Bay, Trelawny had been purchased by him after the couple had separated and they had written to the vendor to indicate that they no longer had any interest in purchasing. However, he had subsequently decided to purchase the property by himself and therefore there was no legitimate claim that the Claimant could assert in relation to that property. The Respondent in his first affidavit also points out that with respect to the property at Norbrook Estate, both parties had contributed to the deposit and closing costs while the balance of the purchase price had been secured by way of a mortgage loan from CIBC. The interest rate on the CIBC loan had been extremely high the loan was eventually re-financed with Jamaica National Building Society.

10 In so far as the motor vehicles are concerned, the Respondent has indicated that he is prepared to allow the Claimant to keep the Toyota Prado while he would keep the Mitsubishi Galant which he presently holds. In light of that concession and the apparent fairness in terms of the motor vehicles, I believe that it is unnecessary for the court to make any ruling except to confirm that the Claimant is to have the Toyota conveyed into her name solely while the Respondent is to have the Mitsubishi is to have the Galant conveyed into his sole name.

11 The Respondent also specifically replied to certain averments made in the first affidavit of the Claimant in his own affidavit of March 20, 2008. For example, he concedes that even while he was employed he was a "hustler" carrying on the business of selling appliances. He also concedes that at the start of the relationship the couple shared expenses but he was always the main contributor. In fact, he claims that after he had been made redundant he had more time to devote to his business activities and he even became involved in buying and selling of motor vehicles. He specifically denies that the Claimant was in any way instrumental in the organization or carrying on of the business at pavilion Mall. He alleges that the Claimant was risk averse and preferred the relative security of the corporate world rather than going into her own business. He also states that, far from helping in the business, she was generally employed full time as well as studying part time in order to secure an undergraduate degree in Management Studies (2004) and commenced reading for a law degree in 2005.

12 The Respondent states in his affidavit that with respect to the various bank accounts that the couple had, there were individual accounts in each name as well as there were joint accounts. It was his evidence that the account at JMMB had both names; the Jamaica National Building Society account was opened in order that the couple could access cheaper financing and therefore had both names; both names were also on the accounts at CIBC/First Caribbean and the Capital and Credit account...