Mckoy v Mckoy

 
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Supreme Court

Malcolm, J.

E.247 of 1986

McKoy
and
McKoy
Appearances:

David Muirhead Q.C., instructed by Gordon Steer of Chambers Bunny and Steer for plaintiff.

J. Kirlew and Mrs. Pamela Benka-Coker for defendant. ( Mr. Kirlew was not is attendance).

Family law - Husband and wife — Divorce — Matrimonial property division — Company was source of funds employed the defendant to purchase the property in the subject matter of claim and also a car — Plaintiff entitled to half interest in both of the properties.

Malcolm, J.
1

By Originating Summons dated the 10th October, 1986, the plaintiff sought the Court's determination of the following questions and for Orders to be made with respect thereto:–

2

1. What are the respective interests of the plaintiff and the defendant in the undermentioned premises:–

  • (a) 86 Main Street, Ocho Rios, St. Ann;

  • (b) Lot 30 Windsor, St. Ann, registered at Volume 1116 Folio 782;

  • (c) Lot 66 Buena Vista, St. Catherine, registered at Volume 1115 Folio 416;

  • (d) 25 Kirkland Crescent with two houses thereon registered at Volume 586 Folio 100;

  • (e) Tower Cloisters, Dixon Avenue, St. Ann, Apartment No. 1A.

  • 2. What is the respective interest of the plaintiff and the defendant in Champion Battery Company situated at 59 Constant Spring Road, St. Andrew;

  • 3. Should the defendant be ordered to give an account to the plaintiff of the profits and or rental collected from the properties or businesses mentioned above;

  • 4. What are the proper values of the properties;

3

5. What further and other relief is the plaintiff entitled to and that the Court do order accordingly;

6
    That the Court should order as follows:– (a) A Declaration of the value of the properties mentioned above and to what amount is the plaintiff entitled; (b) Payment to the plaintiff of such sums as the Court may determine is due to the plaintiff in accordance with the answers to the questions herein asked; (c) An Order for an Injunction restraining the defendant from dealing with the properties mentioned above which would detrimental to the plaintiff…… etc.
4

The plaintiff's affidavit in support provides a short history of this matter and to my mind it will be helpful to allude to certain portions of it.

5

Both parties will readily agree with me when I say that neither of them was “born great” paragraphs 2 to 12 of the affidavit reads:–

2
    “That I was lawfully married on the 21st day of August, 1953, to Owen McKoy and the marriage produced five children, the last of which is now over the age of sixteen (16) years; 3. That when we were married my husband was employed as a mechanic at Halsall May Pen, Clarendon and we lived in May Pen on the Hayes Road, in Clarendon; 4. That my husband at that time rode a bicycle and I was employed at a store in May Pen; 5. That I got a job at Hannas at Port Royal Street, Kingston and my husband continued to work as mechanic; 6. That in 1964, my husband got a job at Tropical Battery on Ashenheim Road and the family moved to Kingston. We lived in rented premises in Pembroke Hall; 7. That in 1964, we bought a lot of land at 15 Woodlawn Avenue, and we built a home there which became the matrimonial home; 8. That the defendant was promoted to Factory Manager and in 1969 he left Tropical Battery to form his own company known as Reliable Battery Company; 9. That a few months after I gave up my job and began working in the Company. I was a Shareholder and Director; 10. That although I was paid a salary this was never commensurate with the amount of work done by me as my husband kept telling me that everything was for both of us and the children; 11. That Reliable Battery was sold in 1974 and my husband took all the money from the proceeds of sale; 12. That in 1976 myself and my husband opened Champion Battery Company and I was again a Shareholder and Director.”
6

The rest of the plaintiff's affidavit recited, inter alia, that she participated in every aspect of the business and worked alongside her husband and in that way they built up the business. From the profits the defendant bought a farm in Linstead and she raised chickens and pigs and sold oranges from door to door and the money was utilised in the home, paragraph 15 of her affidavit reads:

7

“That several businesses and properties were bought by my husband out of the earnings and profits of

Champion Battery Company and he would tell me not to worry as I was protected and he would look after me.”

8

Then paragraph 16 sets out the properties he acquired including the Champion Battery Company. She further deponed that 15 Woodlawn Avenue was sold and the money used to buy a house at Kirkland Crescent where extensive renovations were done to it and the land was subdivided and another house was built which now accommodates their son. Mr. McKoy left 25 Kirkland Crescent in April 1986, and subsequently prevented her from working in the business.

9

On the 1st day of the hearing of the application in Chambers the plaintiff was put up for cross-examination. To highlight some of the salient features of her oral evidence she testified that she knew the property at 86 Main Street in Ocho Rios. She said it was a gift by an aunt to the defendant. She did not agree that that property was acquired after Champion battery in February 1985.

10

She said none of the buildings were on the land at the time of the transfer. The construction of the buildings started in 1986. The plaintiff said -

“He borrowed money to erect the shop. Mortgaged house at 25 Kirkland Crescent, don't know to whom…… I know land had been transferred to defendant's name only when the title was taken out 1985. At the time I said nothing as the sole intention was that it was for all of us – supposed to belong to defendant, myself and all the children.”

11

She said that when she first instituted these proceedings that was the first time she initiated positive act towards the property at Main Street, the properties were bought for herself, husband and children - none of them has my name. She said she claimed 1/2 of Main Street and claimed part of Cloister Towers, registered in defendant's name only. She went on, and here I quote:–

“both properties I have referred to I contributed nothing. I don't know where the money came from to buy either - I think it was from Champion Battery.”

12

She testified that Lot 30 Windsor, St. Ann was bought in 1976. McKoy has sold this land after she filed the Originating Summons herein. She stated:–

“At all times I said I had a right to have my name included in titles - 30 Windsor and all properties. Windsor was bought before Champion Battery was formed. He said not to put my name on title as we would all enjoy them as what was his would be mine.

Lot 66 Buena Vista, I am making claims in respect of all lots for myself. This lot was bought about 1974 - 1975 before Champion Battery was bought.”

13

Plaintiff further stated that between marriage in 1954 and Martin's birth she bought most of the groceries - she had children in that period. She testified -

“Between 1960 and 1964 we both contributed - 1964 - 1969 before Reliable Battery we both contributed – 1970-1976 both of us contributed. From 1976-1986 both of us contributed…… right up to 1986 we paid 1/2 and 1/2.”

14

Thereafter she gave some history of “Reliable” which she said was formed in 1969 - it was eventually sold in 1974. Champion was formed in 1976 and 200 shares ware allocated to her.

15

She claimed she went on holidays abroad as well as on business trips – all of which were paid for by the company. She said she could “draw alone but only for company purposes not for my personal business.”

16

Of the Champion Battery Company the plaintiff said:–

“It was a joint effort, toe-to-toe. At Champion my hours were regular. I would open up. I was requested to deliver batteries, it was company policy. Started by Mr. McKoy as joint effort. I started toe-to-toe with Mr. McKoy. I was called on to perform as Personnel Officer. I was called on to oversee.”

17

Then the end of her cross-examination proceeded as follows:–

18

“Suggestion: The properties listed – you do not have a legal and beneficial interest in the properties.

Answer: He did say everything he had was mine and the children.

I travelled overseas to purchase batteries. Miami – bought machine and belts – I was asked to manage business. Business is still going on.”

19

In re-examination by Mr. Muirhead she repeated: “I have said properties there were bought with both of us in mind. Funds from Champion as well as Reliable.” She was asked whether or not she had anything to do with the establishment of Cloisters and her reply was that she went to the U.S.A., got money from Reliable Battery – got U.S. $2,000.00 for Cloisters from It. McKoy – bought fridge, utensils, crockery for down there. In addition she bought pictures for the...

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