McKenzie (Marguerite) and Anthony McKenzie

JurisdictionJamaica
CourtSupreme Court
Judge SYKES J.
Judgment Date15 Feb 2007
Judgment citation (vLex)[2007] 2 JJC 1501

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE MATTER OF 16 NORBROOK DRIVE, KINGSTON 8 IN THE PARISH OF ST. ANDREW
AND
IN THE MATTER OF THE MARRIED WOMEN'S PROPERTY ACT
BETWEEN
MARGUERITE MCKENZIE
CLAIMANT
AND
ANTHONY MCKENZIE
DEFENDANT
IN CHAMBERS
Hilary Phillips Q.C. and Andrea Bickhoff-Benjamin instructed by Grant, Stewart, Phillips and Company for the claimant
Hyacinth Griffith and Rose Duncan-Ellis for the defendant

MATRIMONIAL PROPERTY - Division of property - Whether maintenance of property and taxes included

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DIVISION OF MATRIMONIAL PROPERTY, SECTION 16 OF THE MARRIED WOMEN'S PROPERTY ACT, POST ACQUISITION IMPROVEMENTS, WHETHER MAINTENANCE OF PROPERTY AND PAYMENT OF TAXES TAKEN INTO ACCOUHT. EQUITABLE ACCOUNTING

SYKES J
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1. Mrs. Marguerite McKenzie by way of a fixed date claim form dated November 28, 2005, claims:

  • a. a declaration that the claimant is solely entitled to the property known as all that parcel of land part of Spring Garden and Constant Spring Estate in the parish of Saint Andrew being the lot numbered two section 5, now known as number 16, Norbrook Drive, Kingston 8 in the parish of St. Andrew, registered at volume 801 folio 64 of the Register Book of Title.

  • b. a declaration that the defendant holds his interest in the property known as all that parcel of land part of Spring Garden and Constant Spring Estate in the parish of Saint Andrew being the lot numbered two section 5, now known as number 16, Norbrook Drive, Kingston 8 in the parish of Saint Andrew, registered at volume 801 folio 64 of the Register Book of Titles, on trust for the claimant.

  • c. an order that the defendant do execute an instrument of transfer, thereby transferring his interest in the said property to the claimant.

  • d. an order that, in the event of the defendant refusing and/or failing to execute the said instrument of transfer, the Registrar of the Supreme Court be authorised to execute the said instrument of transfer.

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2. Mr. McKenzie while not filing a counter claim submitted that his wife is not entitled to greater than fifty percent of the equitable interest in the property.

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3. Miss Phillips Q.C. made the remarkable submission that Mrs. McKenzie is entitled to the full one hundred percent beneficial interest because she made improvements to the property and these improvements enlarged her proportion of the beneficial interest. The first issue is whether any such principle exists and has ever existed. Mrs. Hyacinth Griffith, for her part, submitted that in the absence of an express agreement between the parties concerning the beneficial ownership, it is possible, on the facts of this case, to infer that the parties intended to share the beneficial interest in equal shares.

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The principles relating to division of matrimonial property

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4. It is over thirty years since Pettitt v Pettitt [1969] 2 All ER 385 and hissing v Gissing [1970] 2 All ER 780 were decided and seventeen years post Lloyd' Bank v Rosset [1991] 1 A.C. 107. The first two cases have been applied in Jamaica without exception or qualification by the Court of Appeal and Judges of the Supreme Court. The last case from the Court of Appeal in which Pettitt and Gissing were applied is Chin v Chin SCCA No. 161 of 2001 (delivered December 20, 2005). Before examining the facts I shall set out the law as I understand under the various headings argued before me. These are acquisition of property; post acquisition improvement, mortgage payments - past and future; maintenance/repairs and payment of taxes and the determination of the common intention of the parties.

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(a) acquisition of property

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5. The Property (Rights of Spouses) Act of 2004 which came into force last year does not apply to this application. After Pettitt and Gissing there are a number of principles that have been firmly established and are applicable to this case. These are:

  • a. section 16 of the Married Women's Property Act is procedural only and does not give the court the power to alter the beneficial interest under the guise of what is reasonable or just in all the circumstances of the case;

  • b. the role of the court is to declare the existing rights of the couple;

  • c. trust law applies to the division of matrimonial property;

  • d. the same principles of trust law apply to spouses, former spouses and strangers. There is no special law applicable to property acquired by parties to a marriage.

  • e. the rights of spouses in property do not change merely because the marriage has broken down.

  • f. the relevant time which is the focus of the examination of the courts is the time of acquisition of the property. Unless, there is an allegation that the share of the beneficial interest changed after acquisition, what happened after the time of acquisition is generally irrelevant to the issue of determining the beneficial interest of each party.

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6. In the case before me, there is no allegation that the beneficial interest of either party was altered by agreement. The relevant time must therefore be the time of acquisition of the property. I shall deal with Miss Phillips' proposition first.

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7. There are those who believe that because the equitable jurisdiction of the Supreme Court is invoked, a judge can do any thing to achieve a "fair" result. That is not so. They would have us behave in a manner that drew this uncomplimentary commentary several hundred years ago from John Selden: "For law we have a measure, and know what to trust. Equity is according to the conscience of him that is chancellor; and as that is larger, or narrower, so is equity. 'Tis all one as if they should make the standard for the measure the chancellor's foot; another a short foot; a third an indifferent foot. It is the same thing with the chancellor's conscience, "(see Randall, Commentaries on Equity Jurisprudence by Justice Story, 1920 (3 rd English Ed) p 13 citing Selden's Table Talk).

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8. Bagnall J. in Cowcher v Cowcher [1972] 1 All ER 943, 948 d–e observed, in less picturesque language but equally to the point:

In any individual case the application of these propositions may produce a result which appears unfair. So be it; in my view, that is not an injustice. I am convinced that in determining rights, particularly property rights, the only justice that can be attained by mortals, who are fallible and are not omniscient, is justice according to law: the justice which flows from the application of sure and settled principles to proved or admitted facts. So in the field of equity the length of the Chancellor's foot has been measured or is capable of measurement. This does not mean that equity is past childbearing; simply that its progeny must be legitimate — by precedent out of principle. It is well that this should be so; otherwise, no lawyer could safely advise on his client's title and every quarrel would lead to a law suit.

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(b) post acquisition improvement

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9. In Pettitt, the actual issue before the House of Lords was whether post acquisition improvement by the husband to property held beneficially by his wife gave him any proprietary interest. This is to state the issue fairly broadly. The answer was no. The issue may be framed narrowly, that is, whether the kind of post acquisition improvement done by the husband to the property gave him a beneficial interest in the property. The answer was no. This narrow formulation was sufficient to dispose of the appeal and there was no necessity to look at the question more broadly. Nevertheless the House took the opportunity to examine thoroughly and comprehensively, the law developed by the Court of Appeal in the previous thirty years. At the end of the examination the House rejected the idea that was anything such thing known as family assets which attracted special law. The House made it very clear that post acquisition improvement did not alter the beneficial interest of either party unless there was some agreement to that effect.

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10. What is the position regarding improvements? I shall take the judgment in Pettit as the starting point. Lord Reid said at page 389F–H:

Let me suppose that a house which requires extensive renovation or improvement is acquired by one spouse putting down the deposit and taking the title. Installments of the purchase-price and the cost of the improvements will then have to be paid. The other spouse may be willing and able to help, and as a pure matter of convenience, without any thought of legal consequences and without making any agreement, one spouse may pay the installments of the purchase price and the other may pay for the improvements. On this view the legal position will be different according as the contributing spouse pays the installments or the cost of the improvements. Payment of the installments will obtain for him or her a proprietary interest in the house, but payment of the cost of the improvements will not give him or her either an interest in the house or a claim against the other spouse. That seems to me to be entirely unsatisfactory. It is true that the court will do its best to spell out an agreement to prevent this, but I shall return to that matter.

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and at 390E–H:

But it is, I think, proper to consider whether, without departing from the principles of the common law, we can give effect to the view that, even where there was in fact no agreement, we can ask what the spouses, or reasonable people in their shoes, would have agreed if they had directed their minds to the question of what rights should accrue to the spouse who has contributed to the acquisition or improvement of property owned by the other spouse. There is already a presumption which operates in the absence of evidence as regards money contributed by one spouse towards the acquisition of property by the other spouse....

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