Ming, Hilda v Donald Ming
| Jurisdiction | Jamaica |
| Judge | MCDONALD J (Aq) |
| Judgment Date | 20 September 2002 |
| Judgment citation (vLex) | [2002] 9 JJC 2002 |
| Court | Supreme Court (Jamaica) |
| Docket Number | SUIT NO. E-283 of 2000 |
| Date | 20 September 2002 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN EQUITY
MATRIMONIAL PROPERTY - Declaration of interest in property - Order to sever joint tenancy - Order for sale of property - Married Women's Property Act, s. 16
By an amended originating summons dated 22 nd August 2000, brought under section 16 of the Married Women's Property Act, the applicant seeks the following relief:-
"(1) A Declaration that the Applicant is entitled to one-half (1/2) interest and the Respondent to one-half interest in property known as ALL THAT parcel of land part of "Weston Park" situated at May Pen in the parish of Clarendon being the lot numbered THIRTY-NINE and registered at Volume 1114 Folio 729 of the Register Book of Titles.
(2) An Order that the joint tenancy be severed and the parties be registered AS TENNANTS IN COMMON as to one-half (1/2) interest to the Applicant and one-half to the Respondent on the Certificate of Title for the property known as ALL THAT parcel of land part of "Weston Park" situate at May Pen in the Parish of Clarendon being the lot numbered THIRTY-NINE and registered at volume 1114 Folio 729 of the Registered Book of Titles.
(1) An Order that the property be sold and that the net proceeds of sale be divided equally between the Applicant and the Respondent or alternatively that the Respondent purchase the Applicant's respective interest in the property or otherwise as may be just.
(2) An Order that in the event the parties fail to agree to a valuation that the Registrar of the Supreme Court be empowered to appoint a valuator to determine the value of the said premises.
(3) An Order that in the event either or both fail and/or refuse to sign a transfer pursuant to an Agreement for sale of the said premises the Registrar of the Supreme Court be empowered to sign such transfer on behalf of both parties.
(4) An Order that the Applicant be entitled to one-half (1/2) interest and the Respondent to one-half (1/2) interest in funds previously held jointly in Account No. 721991 at the Bank of Nova Scotia Jamaica Limited, May Pen in the parish of Clarendon, later transferred to Account No. 723358 at the said bank in the name of the Respondent and Dwaine Ming and presently in a Scotia Mint Account numbered 020-000-0272-A.
(5) That the costs of this application be borne by the Respondent.
(6) That there be such further or other relief as this Honourable Court deems just".
The parties Hilda Ming (hereinafter referred to as the applicant) and Donald Ming (hereinafter referred to as the respondent) are husband and wife and were married on the 17 th day of February, 1977. The marriage has broken down and they have separated.
At the time of the marriage the applicant was a telegraph clerk and the respondent a Public Health Inspector.
In or around August 1978, land registered at Volume 1114 Folio 729 was purchased in their joint names in the sum of $5,500.
In 1982 the applicant was selected as the recipient of a "build on own land" loan from the National Housing Trust. The respondent consented to join in the application. Both parties jointly acquired a loan in the sum of $35,000 at 8% for 23 years from the National Housing Trust for the purpose of constructing a three bedroom dwelling house on the land which became the matrimonial home.
An endorsement on the Certificate of Title shows that the mortgage was discharged on the 28 th day of July, 1997.
In August, 1996 account numbered 72199 was opened up at the May Pen branch of the Bank of Nova Scotia in the joint names of the parties.
In 1999 the Respondent removed the funds from that account and opened another account numbered 723358 in the name of himself and their son Dwaine Ming. The funds in this account were subsequently transferred by the Respondent to Scotia Mint Account 020-001-0272 A.
On July 25, 2000 the Applicant obtained a Mareva injunction which was varied in August 16, 2000 by order:
"enjoining the Defendant from operating the Scotia Mint Account in his name at the May Pen Branch of the Bank of Nova Scotia be limited to one-half of the funds presently standing in the account".
The applicant's case was set out in 3 affidavits sworn by her on July 21, 2000, November 23, 2001 and May 13, 2002 and she was cross-examined by attorney for the Respondent Mr. Adedipe.
The Respondent's case was set out in his affidavit sworn to on August 3, 2000 and he was cross-examined by attorney for the applicant Mrs. Taylor.
Applicant's Case
The applicant in her affidavit dated July 21, 2000 contends that she contributed $2,000 towards the price of the land, the source of which was a loan from her mother and the Clarendon Co-op Credit Union. In her affidavit dated November 23, 2001 she states that she obtained a loan of $3,000 from the Clarendon Co-operative Credit Union which went towards the purchase price.
In cross-examination she asserts that she contributed $2,000 towards the purchase price and $1,000 towards stamp duty and lawyer's fee; It was true that she received a loan from the Clarendon Co-op Credit Union and also true that she received money from her mother and the Clarendon Co-op Credit Union.
In relation to the financing of the construction of the house, the Applicant's evidence is that Respondent and herself jointly acquired a loan from the National Housing Trust. This loan along with funds jointly saved financed the building of the house.
She states that the Respondent paid an additional $3,000 to have the apartments made a bit bigger.
The Applicant in her affidavit dated July 21, 2000 deposes that they jointly repaid the mortgage secured from the National Housing Trust. However, in her affidavit of November 23, 2001 she deposes that "the mortgage payments were made by me on all occasions and from my personal resources". In cross-examination she maintains the same position.
The Applicant's evidence is that when the mortgage was paid off prematurely, it was a joint decision and the money came from their joint resources, the sum of $30,000 being her contribution when she received a partner draw. In cross-examination she stated that the last payment to clear the mortgage was made by the Respondent. When asked in cross-examination if she knew that this money came from the Respondent's National Commercial Bank account in May Pen she replied "I gave him my money in cash - this money was from my selling not from partner draw".
In respect to the expansion of the house, the Applicant's evidence is that this cost about $600,000. Both of them financed the construction and during the construction she gave the Respondent $22,000 which she withdrew from her Jamaica National Building Society account in addition to giving him $10,000 sourced from a partner draw.
The Applicant's evidence is that the additional construction started in 1992 through to 1993.
The applicant contends that in 1996 she gave the Respondent $17,000 to extend the car porte to accommodate her motorcar; which he has failed to extend.
The Applicant's evidence is that she contributed to the improvement of the house. That her purchase of household furniture and appliances and items for the improvement of the house continued after the Respondent and herself moved into the matrimonial home. In an attempt to substantiate her claim she exhibited three documents "HM3-HM5" attached to her supplemental affidavit dated May 13, 2002. Exhibit ' HM3' is evidence of payment of duty on a microwave oven. Another Exhibit 'HM4' is a pro-forma invoice for a proposed purchase of a refrigerator from Stanley Motta, - the Clarendon Co-op Credit Union, May Pen being named as the proposed lending institution. The third document 'HM5 ' is an invoice from Appliance Traders Ltd in respect of a Panasonic air-condition unit costing $67,611.75 bearing installation date June 25, 1998 COD.
In respect to Exhibit 'HM3' there is no evidence that the Applicant's money purchased same. Re Exhibit 'HM'4 there is nothing to indicate that this transaction was finalized re Exhibit "HM5" - there is evidence of only one actual purchase of an air-condition unit for the house. The applicant in cross-examination stated that she had given the Respondent money - $50,000 in respect of the air-condition unit and asked him to write her a cheque. She said the Respondent made the cheque payable to her, as to her knowledge salesmen do not travel with money, they use cheques. She stated that she endorsed and cashed in cheque at May Pen. Later in her evidence she states that the cheque was...
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