Lynch (Stanley) v Ruthlyn Mitchell

• Jurisdiction: Jamaica
• Court: Supreme Court (Jamaica)
• Judge: SYKES J.
• Judgment Date: 18 September 2008
• Judgment citation (vLex): [2008] 9 JJC 1802
• Date: 18 September 2008
• Docket Number: CLAIM NO. E 106 OF 1999

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. E 106 OF 1999

BETWEEN

STANLEY LYNCH

CLAIMANT

AND

RUTHLYN MITCHELL

DEFENDANT

IN CHAMBERS

Roy Stewart instructed by H.G. Bartholomew and Company for the claimant

Crislyn Beecher-Bravo instructed by Bennett and Beecher-Bravo for the defendant

CIVIL PROCEDURE - Judgment - Consent judgment - Meaning of consent - Variation of consent judgment - Meaning of liberty to apply - Civil Procedure Rules 42.10

CONSENT JUDGMENT - MEANING OF CONSENT - VARIATION OF CONSENT JUDGMENT - RULE 42.10 OF THE CIVIL PROCEDURE RULES - MEANING OF LIBERTY TO APPLY

SYKES J

1 This case began life as a writ of summons issued out of the Supreme Court Registry on March 22, 1999. The claimant sought a declaration that he was entitled to a 50% share of the property registered at volume 1230 folio 642 of the Register Book of Titles. The writ also sought consequential orders. These were the usual orders giving each party the first option of purchasing each other's interest within a stipulated time, failing which the property would be sold by private treaty or auction. There was also a claim for an account of the rent from the property alleged to have been collected by Miss Ruthlyn Mitchell, the defendant. Finally, the last substantive remedy claimed was mesne profits.

2 The claim arose from dispute over property arising from a break down and separation of the Miss Mitchell and Mr. Lynch. They had cohabited for a period of time and during that time purchased the property that is the subject of this suit.

3 The matter concluded on October 10, 2002, when the parties, represented by counsel, in open court, consented to the following judgment:

• i. The plaintiff is hereby declared to be entitled to a 50% share in the property registered at volume 1230 folio 642 of the Register Book of Titles.

• ii. The defendant be at liberty to purchase the plaintiff's share of the said property within 120 days of the date of this Order (sic) of this Honourable Court (sic).

• iii. The property be valued by a mutually agreed valuator.

• iv. If the defendant fails to obey the Order (sic) at (ii) above, the property be sold by private treaty or public auction. The costs incurred in such sale and the mortgage (if any) be deducted from the sale price and the balance divided equally between the parties.

• v. If any of the parties fail to execute any document(s) necessary for the carrying out of (ii), (iii), (iv) above the Registrar of this Honourable Court shall execute such documents(s) on behalf of the party failing to obey the order.

• vi. There shall be liberty to apply.

4 It is to be observed that this final judgment contained no reference to mesne profits or rental income. This judgment was signed by the legal representatives of both parties. Indeed the minute of order reads "Order in terms of consent judgment filed 10/10/2002."

5 Miss Mitchell did not exercise her right of first purchase which meant that the property was to be sold either by private treaty or public auction. The property was sold in 2007. Although the sale has...