Patrick Allen v Theresa Allen
| Jurisdiction | Jamaica |
| Judge | Edwards JA,McDonald-Bishop JA,Phillips JA |
| Judgment Date | 08 June 2018 |
| Neutral Citation | JM 2018 CA 74 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 111/2016 |
| Year | 2018 |
| Court | Court of Appeal (Jamaica) |
[2018] JMCA Civ 16
IN THE COURT OF APPEAL
THE HON Miss Justice Phillips JA
THE HON Mrs Justice McDonald-Bishop JA
THE HON Miss Justice Edwards JA (AG)
SUPREME COURT CIVIL APPEAL NO 111/2016
Written submissions filed by Lemar Neale for the appellant
Written submissions filed by Joseph Jarrett & Company for the respondent
(Considered on paper pursuant to rule 2.4(3) of the Court of Appeal Rules 2002)
This is an appeal from the decision of Wint-Blair J (Ag), as she then was, made on 23 November 2016, dismissing an application, filed by the appellant, to set aside an order made by F Williams J (as he then was) on 8 May 2015, pursuant to a mediation agreement.
A dispute exists as to whether the parties are indeed married (which is not for determination on this appeal), but shortly after their alleged marriage, they purchased land situated at Brown's Town, Ewarton in the parish of Saint Catherine, recorded at LNS 4530 Folio 143 and registered under the Facilities for Title Act (the property). A loan was later obtained from the National Housing Trust (NHT) to build a house on the land (although a dispute also exists as to who obtained this loan). Sometime thereafter, the relationship between the parties broke down irretrievably, but no formal steps were ever instituted to commence divorce proceedings, or to obtain a declaration as to the validity of the marriage.
On 15 June 2012, the respondent filed a fixed date claim form under the Property (Rights of Spouses) Act (PROSA) seeking declarations and consequential orders regarding the ownership of and/or her interest in relation to the said land. This application was supported by affidavits sworn to on 29 April 2013 and 20 April 2014, by the respondent, in which she asserted that she was entitled to an interest in the property. The basis of her claim was that she had solely financed the purchase of the land. In fact, she stated that she had given the appellant US$1300.00, the full purchase price of the land. She further deponed that she and the appellant jointly obtained a loan from the NHT to build a house on the land; and she had documentation from the NHT showing that the loan was in both their names; and that she had sent a cheque to the NHT from the United States to clear mortgage arrears which had occurred on the loan.
The appellant, in his affidavit in response filed 4 February 2014, denied the respondent's claim that she had contributed to the acquisition of the land or the construction of the house on it. He instead asserted that it was he who had paid the purchase price for the land in full, and that a payment which had been made by the respondent directly to the vendor had been a gift to him. He averred that while the respondent's name does appear on the certificate of title for the said land, the mortgage obtained from the NHT was in his sole name, and he exhibited a copy of the NHT loan approval to his affidavit. He also denied that the respondent had paid funds directly to the NHT. He further deponed that the price of the land offered for sale had been a reasonable price, which he had deemed to be a good investment, but he had never intended it to be their matrimonial home.
When the matter came before the court, the parties were referred to mediation. They participated in mediation on 24 February 2015 and arrived at an agreement. Present at mediation were the appellant and his attorney-at-law, Mr Demar Kemar Hewitt, Miss Jacinth Baker (who had been given a power of attorney by the respondent to, inter alia, appear on her behalf in the matter before the court as well as at mediation), and the respondent's attorney-at-law, Mr Joseph Jarrett. The terms of the mediation agreement signed by both parties and submitted to the court were as follows:
“(i)
Agreement that All that parcel of land part of Ewarton called Brown's Town recorded at L.N.S 4530 Folio 143 / registered under The Facilities For Title Act is jointly owned by the [respondent] and [appellant].
(ii)
Agreement that the [respondent] is entitled to 35% per cent [sic] share of All that parcel of land part of Ewarton called Brown's Town recorded at L.N.S 4530 Folio 143 / registered under The Facilities For Title Act.
(iii)
That in the alternative agreement that the [respondent] has an equitable interest under common law in All that parcel of land part of Ewarton called Brown's Town recorded at L.N.S 4530 Folio 143 / registered under The Facilities For Title Act of 35% percent [sic].
(iv)
Agreement that the aforesaid [property], shall be valued by a reputable valuator to be agreed upon by the parties.
(v)
Agreement that the [appellant] be given the first option if he so desires, to purchase the [respondent's] shares or interest in the abovementioned property.
(vi)
If the [appellant] fails to exercise his option within the twenty one (21) days of the agreement the [respondent] is to be given the option to purchase the [appellant's] share within a further period of twenty-one days.
(vii)
If either party fails to exercise their option to purchase the [property] within the stipulated period the property is to be sold by public auction or private treaty and the net proceeds distributed to the parties in accordance to their respective shares.
(viii)
That the cost of the valuation report [be] shared equally.
(ix)
That the Registrar of the Supreme Court be empowered to execute all documents, necessary to effect a sale and transfer of the properties, in the event that either party fail or neglect to do so. [sic]
(x)
That all costs incidental to the sale of the property including but not limited to the preparation of a valuation report for the property, the payment of transfer tax, stamp duty, registration and attorney's fees to be borne by the [respondent] and [appellant] equally.”
The registrar sent a “Notice of Appointment to Approve Mediation Settlement” to the attorneys-at-law for both parties notifying them that the date on which the mediation settlement was to be approved was 8 May 2015. The matter went before F Williams J on the said date but neither the appellant nor his counsel was present. The learned judge made an order in the exact terms of the mediation agreement. The order, however, was not expressed as having been made ‘by consent’.
The time within which the appellant was expected to exercise the option to purchase the respondent's share in the land lapsed. Accordingly, the respondent's attorney-at-law wrote to the appellant's attorney-at-law indicating that 155 days had passed since the mediation agreement was signed, and they had not yet received the sums representing the respondent's 35% share of the property, nor the appellant's contribution towards the valuation report. The respondent's attorney-at-law indicated that by virtue of this default, the appellant was deemed to have forfeited his option to purchase the property, and that they were instructed to place the property on the open market. A series of correspondence was exchanged thereafter.
On 14 December 2015, the appellant filed a notice of application for court orders in which he sought the following:
“1. The Order made by the Honourable Mr. Justice F. Williams on the 8 th day of May 2015 be set aside.
2. The Court gives directions on the outstanding issues in relation to the Mediation Agreement and the claim and that:
a) the claim be referred back to mediation for the parties to re-enter into settlement discussions.
b) in the alternative, the claim proceeds to case management and trial.
3. All proceedings to enforce the Mediation Agreement and/or the said Order of Mr. Justice F. Williams be stayed until the determination of the claim.
4. Costs of this Application to be to the [appellant], to be taxed if not agreed.
5. Such further or other relief as this Honourable Court deems fit.”
The application was made on the grounds that inter alia: (i) neither the appellant nor his attorney-at-law had consented to the order; (ii) if the appellant had been present, it was likely that the court would have made some other order on the basis that there were unresolved issues between the parties; and (iii) the order gives effect to a mediation agreement that was not intended to represent a complete settlement of the issues in dispute between the parties.
The application was supported by an affidavit sworn to by the appellant in which he deponed that the respondent had taken steps to dispose of the property. He further deponed that the respondent ought to be prohibited from disposing of the property, as the order made by F Williams J was “not properly” made, since it was done in his absence and without his consent, which was required. The appellant stated that he was absent when the order was formalised because he was unaware of the date set for the “mediation confirmation”, and further indicated that if he had been aware of the date, he would have attended in order to have discussions with the respondent about various outstanding issues.
The appellant accepted that an agreement had been reached in relation to some of the issues raised by his attorney-at-law and based on his instructions, such as the fact that the respondent was entitled to a 35% share in the property, and that he would be given the first option to purchase the value of the respondent's interest. However, he deponed that despite the signed mediation agreement, there was no final agreement between the parties, as there were various unresolved issues which he outlined at paragraph 8 of his affidavit to include but were not limited to:
“…being reimbursed for solely repaying the mortgage to date; an account to be given to the [respondent] for my sole use and occupation of the property over the period; the [respondent] contributing...
To continue reading
Request your trial