Maureen Dawn Sirjue-sinclair v Welsford Leo Sinclair
| Jurisdiction | Jamaica |
| Judge | A. Thomas, J. |
| Judgment Date | 04 June 2021 |
| Neutral Citation | [2021] JMSC Civ 104 |
| Docket Number | CLAIM NO. SU2019 CV03135 |
| Court | Supreme Court (Jamaica) |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. SU2019 CV03135
Gordon Steer instructed by Chambers Bunny & Steer for the Claimant
Annaliesa Lindsay and Josemar Belnavis instructed by Lindsay Law Chambers for the Defendant.
Division of Matrimonial Property — Family Home — Whether the equal share rule should be varied — Mortgage registered against the title of the Family Home — Whether the mortgage was a joint venture or personal debt — Other Property — No financial contribution by wife — Whether non-financial contribution established. (Section 6, 7, 13, 14, 15 and 17 of The Property (Rights of Spouses) Act.
Spousal maintenance— parties separated — Decree nisi was granted. The wife has not worked during the marriage but was fully supported by the husband — Whether — requirements of capacity, necessity and reasonableness of needs are satisfied Sections 4,5 and 14 of the Maintenance Act.
The parties to this claim, Mrs. Maureen Sirjue-Sinclair (the Claimant) and Mr. Welsford Sinclair (the Defendant) got married on the 22 nd of December 1995. The marriage produced four children who are now ages 20, 21 and twins 23. In this action, Mrs. Sinclair is seeking the Court's “determination of questions under Sections 3, 6, 7, 11, 13, 15 & 23 of The Property (Rights of Spouses) Act 2004” (hereinafter refers to as PROSA) concerning the ownership of properties between the Claimant and the Defendant. She is also asking the court to make an order for spousal maintenance.
The Claimant in particular seeks the following orders. That:
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(i) She is the sole proprietor of 49 Sunset Avenue, Cherry Gardens;
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(ii) She is entitled to 80% of the Defendant's shares in Radiology West Ltd and Pines Imaging Centre Limited;
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(iii) She is entitled to 50% of the Defendant's shares in:
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(a) Island Radiology Incorporated;
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(b) Greysville Pharmacy Ltd.;
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(c) Traffic Mode Ltd.;
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(d) Sibron Company Ltd.;
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(e) YMEC Health Care Services;
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(f) Serron Pharmaceuticals Ltd. (trading as York Pharmacy 2012);
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(g) Choice Trucking Co Ltd.;
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(h) Alpha Imaging Ltd.;
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(i) The Palmyra (The Jewel Grand Hotel) St. James Hotel — Unit #A802 Sabal Palm Tower Vol. 1437 Folio 478 (Lot#16 and part of Lot #17B);
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(j) BMW —2012;
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(k) Mercedes Benz —2016;
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(l) Toyota Prado —2013;
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(m) Suzuki Grand Vitara —2016;
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(iv) She is entitled to spousal maintenance in the sum of $835,000 per month.
The Defendant husband, Mr. Sinclair, is challenging his wife's claims. He is resisting her claim to 100% interest in 49 Sunset Avenue, Cherry Gardens (the Cherry Garden's property) and is asserting an interest in that property. It is also his case that with the exception of Pines Imaging Centre Limited, in which the Claimant has some shareholding interest, she is not entitled to any interest in any of the other companies in which he has any interest. Additionally, he is resisting her claims to the motor vehicles with the exception of the Toyota Prado in which he is claiming no interest.
As it relates to her spousal maintenance claim, Mr. Sinclair is not challenging his wife's request for maintenance, but asserts that he is not able to provide the sum that she is seeking. However, he is prepared to offer a specified sum that is way below that sought by her. The sum offered in his Affidavits, which were admitted as his evidence in chief, was subsequently adjusted upwards on cross examination. This sum will be highlighted in a later segment.
There being no denial that the Cherry Garden's property is the family home of the parties, the issues which arise are:
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(i) Whether there is any reason to find that the Claimant is entitled to sole interest in that property;
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(ii) As it relates to the other properties, that is, the shares in the various companies, as well as the motor vehicles, whether there is sufficient evidence of contribution on the part of the Claimant.
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(iii) Whether the Claimant is capable of maintaining herself;
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(iv) Whether the Defendant is able to maintain her.
The evidence of the Claimant as it relates to the acquisition of the Cherry Garden property is that an intimate relationship developed between herself and Mr. Sinclair in early 1993. They commenced living together at 5–7 Ruthven Road in an apartment owned by herself, her father, mother and brother. The afore-mentioned co-owners transferred their ownership of the said apartment by way of gift to her, on the 18th day of March 2003. She then sold the apartment for Three Million Dollars ($3,000,000.00). in December, 2004.
She states that in April, 2004 she saw a lot of land registered at Volume 1082 Folio 985 situated in Cherry Gardens. She says that she showed the land to Mr. Sinclair who said he was not interested in it. She used moneys from a bank account held jointly with her mother to make a deposit on the purchase of the land. Her intention at the time was to return the sum to the bank account, from the proceeds of sale of the apartment.
She also says that the title to the Cherry Gardens property, now known as 49 Sunset Avenue, was taken in her sole name, as it was acquired from the proceeds of sale from the Apartment gifted to her by her family. She states that in April, 2006 as she was not working, her husband took the decision to assist with construction of the house on the Lot of land at Cherry Gardens, on which she had already commenced construction.
Mrs. Sinclair further states that Mr. Sinclair borrowed the sum of Twenty Million Dollars ($20,000,000.00) and a further Thirteen Million Five Hundred Thousand Dollars ($13,500,000.00) against the Title of the property. These mortgages were registered on the 15 th of February 2006 and the 25 th of September 2008 respectively. She alleges that the entire borrowing was paid to the Defendant without her knowledge or consent.
She says that in August of 2009 the parties, along with their children moved into the unfinished house at Cherry Gardens with only one section partially habitable as her plan was to complete it slowly. Prior to this time, they were living in rented premises. She contends that the Thirty-three Million Five Hundred Thousand Dollars ($33,500,000.00), borrowed by the Defendant then, would have been more than enough to complete the house, had the borrowings been so applied but the Defendant took sole charge of the loan proceeds without her knowledge or consent, lodging it to his personal account only giving her contributions towards the construction as he determined.
She indicates that in July of 2010 a further mortgage of Thirteen Million Dollars ($13,000,000.00) with the Bank of Nova Scotia Jamaica Limited was registered on the Cherry Gardens property. She maintains that this further sum was also paid to her husband alone without her knowledge or consent. It is also her evidence that except for asking her to sign documents in haste, her husband has never explained his loan arrangements to her or ever accounted to her as to how these loans were disbursed or applied or to whom. She asserts that the mortgages on the property were not used solely for the construction of the house, but were also used to invest in other properties and businesses owned by the Defendant.
She also states that the Defendant moved out of the house at Cherry Gardens completely in April 2018 and they have been separated since then. She says that the Defendant serviced his debt, for which the property was used as a collateral, until shortly after he completely moved out of the house, at which time, he stopped servicing his debts. She states that she has received Demands from Banks who claimed to be owed a sum in excess of Thirty-One Million Dollars ($31,000,000.00). She says that the house is now under foreclosure. She tendered 4 demand letters which were admitted into evidence.
On cross examination, Mrs. Sinclair states that when the Cherry Gardens property was purchased in 2004, it was just land and thereafter a house was built on it. She agrees that the house was built by virtue of a mortgage registered against the title for the land. She also admits that herself and Mr. Sinclair signed the mortgage document. She states that construction of the house commenced in 2006 and the family moved into the property about the 7 th of August 2009. She says that save and except when her children went overseas for school, herself, her husband and their children lived at this house from 2009 to 2017. She accepts that as it relates to the three mortgages that are registered on the title, of which she is aware her husband was responsible for repaying these mortgages.
The Defendant contends that despite the fact that the Cherry Gardens property is registered solely in the name of the Claimant, he has been solely responsible for repaying all of the mortgages in relation to the loans for the construction of the house on the land, so he is entitled to an interest in that property. In his evidence in chief, he states that that his wife agreed that the title to the property would be used as collateral and he agreed that all loan financing obtained would be repaid by him. He refutes her claim that she had commenced construction prior to the receipt of the mortgage loan. He admits that at a point in time Mrs. Sinclair had offered to place his name on the title as an owner, but he declined that offer.
Mr. Sinclair refutes Mrs. Sinclair's claim that the sums borrowed against the title were done without her knowledge and consent. He states that she was aware of all the sums borrowed, in that the mortgages could not have been registered without her consent. He further states...
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