Olga Dunkley v Oswald James Dunkley

• Jurisdiction: Jamaica
• Judge: Morrison, J
• Judgment Date: 26 April 2018
• Neutral Citation: [2018] JMSC Civ 68
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2015HCV05407
• Date: 26 April 2018

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO. 2015HCV05407

Between

Olga Dunkley

Claimant

and

Oswald James Dunkley

Defendant

IN CHAMBERS

Mrs. Tamara Francis Riley-Dunn instructed by Nelson-Brown, Guy and Francis for Claimant

Mr. George Clue for Defendant

Matrimonial home — Consent Order filed that parties are joint tenants of subject property — order that property to sold and net proceeds of sale be distributed between parties equally — order that either party can elect to purchase property — neither party electing to purchase property — which party is to have first option to purchase property

CORAM: Morrison, J

1 The parties at bar were married on the 26 ^th day of April, 1980 and the marriage was dissolved on the 9 ^th day of March, 2012. It appears that though the marriage produced two children, the Defendant, for the most part, certainly up to 2005 spent most of his conjugal time in the Grand Cayman Island where he worked as a Carpenter and Construction worker. The parties who shared a joint account, had initially lived together on the land in question until they eventually purchased it from their landlord on April 26, 2007. The intermediary facts are the subject of a dispute, however, the unrefuted assertion of the Claimant as contained in her affidavit of 24 ^th August, 2016 is that, “In May, 2008 the Defendant told me that he fell in love with someone else and no longer wanted to be a part of the marriage…” Further, she depones, “For more than five (5) years, that is, since April 2008, I never heard from the Defendant.” Lastly, the Claimant in endeavouring to show that this Defendant had abandoned the matrimonial home, a fact again unrefuted by him, says at paragraph 30 of her affidavit: “That I know that the Defendant remarried and lives with his wife in the Cayman Islands, in fact when he petitioned for marriage (sic) to be dissolved he stated his home address back then to be in Cayman.” She then attached the proof of her claim to the above.

2 The Claimant then expressed her willingness “to rebuild the home and buy 50% (sic) share in the land held by the Defendant “as she cannot afford to buy along with her daughter, something on the open market and thus prays that she be granted the first option to purchase the said property.

3 I shall here point out that when the matter came before me on July 28, 2016, the parties being duly represented by counsel, the Formal Order filed on August 16, 2016 reads: … “By consent it is thereby Ordered:

• 1. It is hereby declared that the Claimant and the Defendant are joint tenants of ALL THAT parcel of unregistered land part of land known as Frankfield located in Waterworks in the parish of Clarendon measuring by survey 2571.52 square meters of the shape dimensions and buttings as appears by the Plan thereof hereunto attached bearing examination number 322163 prepared by Noel K. Brown, Commissioned Land Surveyor from a survey made by him on February 28, 2007 (hereinafter referred to as “the said property').

• 2. It is ordered that the said property shall be sold and the net proceeds thereof be distributed between the Claimant and the Defendant in equal shares.

• 3. That the property shall be valued by an appraiser agreed upon between the Claimant and the Defendant, and where an agreement cannot be reached between the parties within fifteen (15) days of the date of this Order that D. C Tavares Finson Realty Company be retained and the cost for procuring the valuation report shall be shared equally between the Claimant and the Defendant.

• 4. That the party who is purchasing the other's interest must within thirty (30) days after electing to purchase the said property pay ten per cent (10%) of the market value of the said property to the Attorneys having carriage of sale.

• 5. That the Claimant's Attorneys-at-Law shall be appointed as the Attorneys having carriage of sale.

• 6. That should either party refuse and/or fail to exercise their option to purchase within the time specified, then it be ordered by this Honourable Court that the said property be offered for sale on the open market and the net proceeds of sale be divided equally between the parties.

• 7. Further Affidavits, if any, to be filed and exchanged by August 9, 2016.

• 8. Written submissions and authorities to be field and exchanged by August 12, 2016.

• 9. Trial adjourned part heard to August 16, 2016 at 10:00 am for one day.

• 10. This Order is to be prepared, field and served by the Claimant's Attorneys- at-Law.”

4 Again it is to be pointed out that the basis of the July 28, 2016 consent order of the Court are the very terms of the Skeleton Submissions on behalf of the Claimant filed on July 8, 2016 with paragraph 4 thereof being reserved for trial, that is, “That the Claimant be given the first option to purchase the said property within (30) days of receiving the valuation report, failing which the Defendant may elect to purchase the said property within sixty (60) days of receiving the valuation report.”

5 The cited extract as noted above formed the basis of the trial which commenced on December 2, 2016 and eliding supervening events the parties agree to rely on their respective written submissions on the matter: The ultimate question being, which party is to have the first option to purchase the subject property?

6 Mrs. Tamara Francis Riley-Duncan's submissions on behalf of the Claimant, is that her client be given the first option to purchase the property. She has, in this connection placed reliance upon:—

• a. The Property (Right of Spouses) Act (PROSA);

• b. The Partitions Act;

• c. Trust of Land and Appointment of Trustees Act 1996 (UK); and

• d. Mitchell v Leach et al 2015 ONSC 6041

7 Mr. George Clue on behalf of the Defendant is of the contrary view. He cites the following authorities in support of his client being given the first option to purchase the property even as he refuted the authorities of the Claimant. He submitted that the Partition Act is inapplicable in this dispute. He relied on the following authorities:-

• a. Gerald Belnavis v Laverne Belnavis (2013) JMSC Civ. 39, and

• b. Vilma Wilson Malcolm v Junior Washington Malcolm (2013) JMSC Civ. 161

8 In resolving the issue I think that a useful starting point is to have regard to section 13 of PROSA: “A spouse shall be entitled to apply to the Court for a division of property-

• a) on the grant of a decree of dissolution of a marriage or termination of cohabitation; or

• b) …

• c) …

• d) …

9 Further it is my view that Section 14(1) of PROSA, has to be taken into account. It reads that “where under section 13 a spouse applies to the Court for a division of property the Court may”, it states under section 14(1):

• a) make an order for the division of the family home in accordance with section 6 or 7, as the case may require; or

• b) …,

  or, where the circumstances so warrant, take action under paragraphs (a) and (b)

10 Let me now turn to sections 6 and 7, section 6 deals with the entitlement to the family home, to wit, each spouse shall be entitled to one-half share of the family home, inter marriage or the termination of cohabitation. Section 7 grants to the Court the power to vary the equal share rule under section 6.

11 I am also convinced that a court in considering the division of matrimonial property must hearken to its “Power to make other Orders” as granted by Section 23(1). It reads-

“Without prejudice to any other provisions of this Act, the Court may make any of the following orders, (by way of example) —

• a) for the sale of property or part thereof and for the division, vesting or settlement of the proceeds thereof:

• b) …;

• c) …;

• d) …;

• e) for the partition or vesting of any property:

• f) …;

• g) …;

• h) …;

• i)

• j) for the transfer of land;

• k) …;

• l) …;

• m) …;

• ...