Margaret Gardner v Rivington Gardner

• Jurisdiction: Jamaica
• Judge: Anderson, K. J.
• Judgment Date: 31 July 2012
• Neutral Citation: [2012] JMSC CIV 160
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2010HCV2594
• Date: 31 July 2012

Between

Margaret Gardner

Claimant

and

Rivington Gardner

Defendant

[2012] JMSC CIV 160

CLAIM NO. 2010HCV2594

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

Application for contempt for breach of a Court Order — What must be proven — Burden of proof — Standard of proof — Procedural requirements to be met — Part 53 of Civil Procedure Rules — Actus Reus and Mens Rea of civil contempt — Section 21(1) of Maintenance Act.

Michelle Champagnie , of counsel, for the Claimant .

Karlene McFarlane and Dianne Edwards and Marjorie Shaw , instructed by Dianne Edwards , for the Defendant .

Anderson, K. J.

1 This matter has most recently come before this court for determination upon a Notice of Motion for committal for breach of a Court order, pursuant to Part 53 of the Civil Procedure Rules. That Motion was filed by the Claimant/Applicant, on May 3, 2012 is supported by an Affidavit which was deposed to by the Claimant/Applicant and also filed on May 3, 2012.

2 The Claimant's Application has been made arising from the Defendant's failure to fully comply with this Court's order as was then made by one of my brother's justices, on July 5, 2010. At that stage the Claimant's Claim was then awaiting trial. It should be noted at this juncture, that the parties to this claim are married to each other, but live separate and apart from one another. Their marriage prior to separation was of relatively short duration, that being — four (4) years. This Court has gleaned this information both from the Judgment as rendered by this Court after the conclusion of trial of the Claim, as well as from the Claimant's Affidavit in support of the Fixed Date Claim Form which she filed, initiating this Claim, which pertains to an application for division of matrimonial property, pursuant to the Family Property (Rights of Spouses) Act. This Court has taken judicial notice of those matters and indeed, of other filed documentation as well as this Court's Judgment upon conclusion of the trial of the Claim for the purpose of enabling consideration of the Claimant's Application, in a complete context.

3 The Order of this Court which has allegedly not been complied with, has been superseded by later Orders made by Honourable Miss Justice Edwards in her Judgment on the Claim. That Order though, of July 5, 2010, was effective and operative, as an interlocutory Order of this Court, until it was superseded by later Orders as made by this Court. Thus, unless and until that interlocutory Order was set aside or varied by this Court, it ought to have been complied with, this even if the Defendant disagreed with the terms thereof, as had been ordered by this Court. On this point, see: Isaacs v Robertson (1984) 43 W.I.R. 126 (P.C.). The Defendant, it should be noted, had applied for a variation of this Court's interlocutory Order on July 5, 2010. That application was however refused, on the ground that the trial of the Claim was then impending and in the circumstances, all of the issues to be addressed by this Court in respect of the Application to vary, could and would also be addressed by this Court, at trial. That this was the reason given by a Judge of this Court for denying the application to vary, is evidence given by the Defendant in his response to this Application for committal, this being evidence which has not been contradicted in the slightest, in any Affidavit evidence on the claimant. Indeed, the Claimant's counsel for the purposes of this Application was very forthright in having informed this Court that she could not say what had transpired at Court leading to the Court having denied the Defendant's Application to vary, as she was not present in Court on the day when that Application was heard and determined. For their part, defence counsel insists that the reason as has been proffered by their client, in paragraph 5 of his Affidavit evidence given in response to the Claimant's Application for committal, is indeed truthful and correct. Be that as it may, this Court is in any event, constrained to accept such as being truthful insofar as such evidence is not only uncontradicted, but also not of such a character as to be patently and/or inherently lacking in credibility.

4 In that Application for variation of this Court's Order of July 5, 2010, which was filed on November 25, 2010, (not on December 14, 2010 as deposed to by the Defendant in paragraph 4 of his Affidavit evidence for the purposes of this application) — this therefore having been just four (4) months after that order had been made, the Defendant had set out several grounds for the variation which was then being sought. The majority of those grounds relate to the alleged inability of the Defendant, from a financial standpoint, to comply with the terms of that interlocutory Order. In support of that Application, the Defendant provided sworn evidence by means of Affidavit which was filed on March 8, 2011 and in that Affidavit, has made reference to other earlier Affidavits of his. The essence of that which was deposed to by the Defendant in support of that Application, was that he would be unable to comply with this Court's interlocutory Order arising from his then existing financial commitment to maintain other children of his — these being children that he had had prior to the commencement of his marriage with the Claimant, along with his existing relatively modest personal commitments for someone such as the Defendant, who is, it should be noted, even according to the Claimant's own evidence on this application, an architect, both of considerable experience and good repute in the architectural profession. This is evidence which has been given and indeed supplemented in material respects by the Defendant in one of his earlier Affidavits, that being his Affidavit which was filed on November 25, 2010 and which was referred to in the Defendant's Affidavit which was filed, as aforementioned, on March 8, 2011. In that earlier Affidavit of his (filed November 25, 2010), the Defendant deposed to having financed the purchase of a mercedes benz motor vehicle for the Claimant, by means of a loan which is secured by the Defendant's property at 19 Hill Road, Norbrook Heights, in the parish of St. Andrew and which is paid for, exclusively by the Defendant. That said house is also mortgaged to Bank of Nova Scotia and the mortgage for same was being paid for by the Defendant. The Affidavit as filed by Mr. Gardner specifically in response to the Claimant's application for committal for contempt discloses that the Bank of Nova Scotia has already indicated to him, their intention to foreclose and have recently attended upon said property to value same. The property though, it is stated by the Defendant in his latest Affidavit, is in a deplorable condition and therefore would not likely yield in terms of sale price, as much as it would, if it had been in a good condition. The Defendant has also deposed, implicitly at least, to his wishing to have said house, which now constitutes his only remaining asset, sold. Thus he has stated in paragraph 17 of his latest Affidavit, that, “my inability to discharge my financial obligations to the claimant/applicant is directly related to my ability to sell my only remaining asset, that is, my house, and the state of disrepair, which, when combined with the downturn in the real estate market, has significantly compromised the value of that asset.”

5 In his earlier Affidavit as was filed on November 25, 2010, the Defendant has deposed to having, ‘no source of income apart from his business and his only asset, which is the property at 19 Hill Road, Norbrook Heights in parish of St. Andrew (Paragraph 16). In that same Affidavit, he has also disclosed that he has mortgaged the said property and the money derived from that mortgage was used to finance business which only the Claimant benefits from. This particular mortgage is serviced by that business, which operates under the name —“Fi Wi Brandish” but nonetheless, the Defendant has alleged that on September 28, 2009, he made a sizeable payment towards that particular mortgage, in the sum of $10,000,000, which was derived from his own personal resources. Thus, the undisputed evidence of the Defendant for the purposes of the present Application, when considered along with other Affidavit evidence earlier provided to this court in support of his earlier Application to vary, makes it apparent that the house at 19 Hill Road, Norbrook Heights, in the parish of St. Andrew, has at least three mortgages on it, two of which are to be serviced by the Defendant, but in respect of which he is currently in default, thus resulting in the likelihood of foreclosure by the mortgagee — Bank of Nova Scotia.

6 Arising from trial of this Claim, a Judgment dividing property between the parties has been delivered. The said Judgment was delivered on May 7, 2012, by the trial judge — Ms. Justice Carol Edwards. It has been stated by the learned trial Judge, that, “There are five mortgages on the family home. The claimant is not prepared to discharge any of the mortgages on the property.” Be that as it may though, this Court has not, for the purposes of the present Application, been made aware of the details of those five mortgages. There were several Orders made by the trial Court, upon conclusion of the trial of the Claim. It would be useful for the purposes of this Judgment, to herein record what those Orders were: ”1) The Defendant is solely entitled to all the legal and beneficial interest in the property known as Hill Road, hitherto described as the family home. 2) The Claimant is entitled to a fifty percent share of the beneficial interest in the property known as Marbella. The property is to be sold by private treaty and the proceeds divided equally between the parties. 3) If the property is not so sold within 6 months of the date...