Nicola-Ann Brown Pinnock v Ana Yansy Martinez Watson

• Jurisdiction: Jamaica
• Judge: Palmer Hamilton, J
• Judgment Date: 18 October 2023
• Court: Supreme Court (Jamaica)
• Year: 2023
• Docket Number: CLAIM NO. SU2021IS00010

IN THE MATTER of the bankruptcy estate of ANA YANSY MARTINEZ WATSON of Toll Gate, Frome in the parish of Westmoreland.

AND

IN THE MATTER of an application for the opposition of an automatic discharge of an individual first-time bankrupt pursuant to Sections 137, 138 and 145 of the Insolvency Act, 2014 and Regulation 49(2) of the Insolvency Regulations, 2015

BETWEEN

Nicola-Ann Brown Pinnock (Trustee, in the estate of Ana Yansy Martinez Watson)

Applicant

and

Ana Yansy Martinez Watson

Respondent

[2023] JMCC COMM 46

CLAIM NO. SU2021IS00010

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE INSOLVENCY DIVISION

Insolvency — Sections 137, 138, 144 and 145 of the Insolvency Act, 2014 — Regulation 49 (2) of the Insolvency Regulations, 2015 — Whether the automatic discharge of a first time bankrupt should be refused — Facts relevant to discharges

Ms. Elece Campbell instructed by the Government Trustee

Mr. Jimhell King instructed by the Office of the Supervisor of Insolvency

IN OPEN COURT

Palmer Hamilton, J

BACKGROUND

1 At the outset, let me apologize for the lengthy delay in the delivery of this judgment as this matter fell through the cracks due to clashes with other court fixtures. I must commend the parties for their understanding regarding same. When the matter came before me on the 18 ^th day of September 18, 2023, I indicated that my reasons would be reduced in writing and I now fulfil that promise.

INTRODUCTION

2 By way of a Fixed Date Claim Form filed on the 19 ^th day of November, 2021, the Applicant from the Government Trustee, Nicola-Ann Brown Pinnock, sought the following Orders:

• (a) That the automatic discharge of the first-time bankrupt, ANA YANSY MARTINEZ WATSON, of Toll Gate, Frome in the parish of Westmoreland be refused.

• (b) Any such further or other relief as deemed fit by this Honourable Court.

3 The Fixed Date Claim Form was supported by the Affidavit of Gleninsha Drummond-Campbell filed on the 19 ^th day of November, 2021. Mrs. Drummond- Campbell deposed that pursuant to Section 83(5) of the Insolvency Act, the Supervisor of Insolvency by Certificate of Assignment issued on the 18 ^th day of July, 2019 appointed the Government Trustee to act as trustee of the estate of Ana Yansy Martinez Watson (hereinafter referred to as ‘the Bankrupt’). The date for the automatic discharge of the bankrupt was on the 18 ^th day of July, 2021 and if there was no opposition then the Notice and Automatic Discharge Report of the estate of the Bankrupt should be filed on or before the 18 ^th day of June, 2021. The said report was filed with the Supervisor of Insolvency on the said 18 ^th day of June, 2021. Investigations have revealed no assets belonging to the Bankrupt that can be used to satisfy her liabilities and the Government Trustee is relying on monthly payments being made by the bankrupt to settle the liabilities to her proven creditors. It was further deposed that the Bankrupt has paid ($110,500.00) to the Government Trustee towards the settlement of her liabilities which amounts to TWO MILLION NINE HUNDRED AND EIGHTY-FOUR THOUSAND THREE HUNDRED AND FIFTY-ONE DOLLARS AND FIFTEEN CENTS ($2,984,351.15). Pursuant to Regulation 59 of the Insolvency Regulations, 2015, the Bankrupt has completed her two stages of counselling and financial management and has received her Counselling Certificates.

4 The Government Trustee opposes the discharge of the Bankrupt on the following grounds:

• (i) That the value of the Bankrupt's assets, being amount held on account by the Trustee by virtue of her surplus income, does not meet the minimum requirement of thirty-three and one-third cents ($33.33) on the Bankrupt's unsecured liabilities as provided for by Section 146 of the Act;

• (ii) That the Bankrupt has not performed the duties imposed on her by the Government Trustee in that she has failed to comply with the requirement for monthly payments to her estate;

• (iii) To date there has been no dividend payment to the Creditors of the Estate and their liabilities remain wholly unsatisfied; and

• (iv) The discharge of the Bankrupt in the above-mentioned circumstances would prejudice the interest of the Creditors of Estate, defeat the objective of the Act and undermine the integrity of the process of insolvency administration.

5 The Bankrupt also filed an Affidavit on the 18 ^th day of February, 2022 and asked that this Honourable Court grant her the relief afforded under Section 137 of the Insolvency Act. She deposed that she is a first-time bankrupt who has fallen on hard times and who before her application for bankruptcy was faithful in the payment of her personal debts and liabilities to her creditors. She further deposed that it was due to unforeseen circumstances, outside of her control, and a series of misfortunes, that she was unable to meet her financial requirements to the Government Trustee and have been struggling to do so for several years. The Bankrupt also deposed that this Honourable Court refusing automatic discharge of her personal liabilities will exacerbate the extent of her financial despondency and she is presently unable to settle these debts. The Bankrupt has no assets to satisfy her liabilities. She listed her only source of funds, save for irregular goodwill contributions from family members and friends, is her monthly salary. As at the date of this Affidavit, the...