Sharon Smith v Vincent Service

• Jurisdiction: Jamaica
• Judge: Sykes J
• Judgment Date: 30 May 2013
• Neutral Citation: [2013] JMSC Civ 78
• Docket Number: CLAIM NO. 2011 HCV 05416
• Court: Supreme Court (Jamaica)
• Date: 30 May 2013

Between:

Sharon Smith

Claimant

and

Vincent Service

Defendant

[2013] JMSC Civ 78

CLAIM NO. 2011 HCV 05416

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA CIVIL DIVISION

APPLICATION FOR EXTENSION OF TIME TO APPLY UNDER SECTION 13 (2) OF THE PROPERTY (RIGHTS OF SPOUSES) ACT — FACTORS TO BE TAKEN INTO ACCOUNT

Pierre Rogers instructed by Rogers and Associates for the claimant

Lancelot Cowan instructed by Lancelot Cowan and Associates for the defendant

IN CHAMBERS

Sykes J

1 It was the year 1993. Miss Sharon Smith and Mr Vincent Service met. They were attracted to each other. An intimate relationship blossomed and out of that relationship two children were born by 1995. In the year 2000, Miss Smith's keen eyes fell upon an advertisement for a town house development at 99A Old Hope Road, Kingston 6. She brought it to the attention of Mr Service. They decided to purchase the property. The property was purchased. Its civic address was 16 Retreat Manor. It was registered at volume 1348 folio 312 of the Register Book of Titles. Miss Smith contributed JA$1m to the purchase price by way of a loan from her mother. Both names were placed on the title. The property became the family home and there they lived until 2007 when the relationship came under severe stress and eventually collapsed in the same year. She moved out in July 2007.

2 This breakdown is one of the trigger events under section 13 (1) of the Property (Rights of Spouses) Act which would entitle her to make an application for a determination of her interest in the property. Under section 13 (2) she had until July 2008 to make this application. She failed to make the application within the time. She has done so again (the current application filed August 29, 2011) having abandoned the previous claim filed in 2009. Her abandonment was precipitated by her financial condition.

3 She was met with the reply that she was out of time and needed to apply for an extension of time within which to file her application before she can even file an application under the statute.

4 After hearing the matter on May 8, Miss Smith's application was granted. These are the reasons.

The time limit

5 Section 13 (1) of the PROSA provides that:

(1) 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) on the grant of a decree of nullity of marriage; or

(c) where a husband and wife have separated and there is no reasonable likelihood of reconciliation; or

(d) where one spouse is endangering the property or seriously diminishing its value, by gross mismanagement or by wilful or reckless dissipation or property or earnings.

(2) An application under subsection (1) (a), (b) or (c) shall be made within twelve months of the dissolution of a marriage, termination of cohabitation, annulment of marriage, or separation or such longer period as the Court may allow after hearing the applicant

6 It is common ground that Miss Smith was the spouse of Mr Service for the purpose of PROSA. The definition of spouse in section 2 includes single man and single woman living together for at least five years before the separation or breakdown of the relationship. Based on the uncontested evidence they began living together in 1994 and continued until the relationship broke down. The cohabitation broke down in July 2007.

7 It is common ground that Miss Smith's application is out of time. The issue now is whether time should be extended.

Extension of time

8 Mr Cowan opposed the extension of time on the basis that it was too late in the day for Miss Smith to seek the benefit of PROSA. Learned counsel did not dispute that the court had the power to extend time but submitted, quite strongly, that Miss Smith has waited for years (almost) before she acted. In this time, Mr Service was entitled to conclude that Miss Smith was not pursuing any claim in respect of the soon-to-be disputed property. Counsel relied heavily on the dictum of Lord Griffith in Donovan v Gwentoys Ltd [1990] 1 WLR 472, 479A which was cited and quoted approvingly by Lord Slynn in Marsal v Apong [1998] 1 WLR 674, 678. Lord Griffith said in Donovan that:

The primary purpose of the limitation period is to protect a defendant from the injustice of having to face a stale claim, that is, a claim with which he never expected to have to deal.

9 Mr Cowan's stance is fully supported by the case of Allen v Mesquita [2011] JMCA Civ 36. In the case the claim under PROSA was filed outside the limitation period. The trial judge had ordered that the claim filed outside the time should stand and then proceeded to hear the matter on the merits. It was argued on appeal that the trial judge committed two cardinal sins. The first was that her Ladyship granted an extension of time for filing the claim even though the claim was filed before the application for extension of time was heard. Second, her Ladyship's hearing on the merits was a nullity because until the extension of time was granted then no claim form could be filed and the claim formed filed before the extension of time was invalid and could not be brought to life retrospectively.

10 The Court of Appeal accepted all these submissions as well as their corollaries. The most important corollary being that “in seeking an extension of time to file his claim, an applicant must also seek leave to extend the time and place before the court reasons to be evaluated by the court to justify his right to do so. Such reasons should explain the delay in filing the claim” ( [14] ). There has been modification of some parts of this dictum but the core position remains, namely, that when the applicant is out of time he or she must get permission for extension of time within which to file an application under PROSA and reasons must be advanced for the delay.

11 Her Ladyship reminded at [26] :

A court, in deciding whether a limitation period should take effect, is under an obligation to consider the circumstances of the particular case, taking into account whether there is any good reason which would prevail against the statute operating.

12 Harris JA took a strong line in favour of upholding the limitation defence. Her Ladyship held at [31] :

Section 13 (2) of the Act places a limit on the time within which a party may initiate proceedings. This limitation is a benefit which the appellant is entitled to enjoy. Such entitlement should operate to her advantage after the expiration of the one year permitted for the respondent to file a claim. … He advanced no reasons for the failure to file his claim, nor has he proffered any reason to show why the appellant should be deprived of the accrual of her right.

13 So there is clear authority consistent with Mr Cowan's position that limitation defences under PROSA should be upheld unless there is good reason not to do so. The court's starting point then should be in favour of the defence when it is raised and that benefit which accrued to the defendant should only be taken away on good reason being shown. What should be taken into account when considering whether to exercise the discretion to extend time within which to make an application under section 13 (2) of PROSA?

14 In Brown v Brown [2010] JMCA Civ 12, Morrison JA said at [77] :

On an application under section 13 (2), it seems to me, that all the judge is...