Sterling (Eileen Beverley) v Frank Arthur Sterling

• Jurisdiction: Jamaica
• Judge: SMITH, J.A. , HARRIS, J.A. , DUKHARAN. J.A.
• Judgment Date: 13 November 2009
• Neutral Citation: JM 2009 CA 107
• Judgment citation (vLex): [2009] 11 JJC 1301
• Court: Court of Appeal (Jamaica)
• Date: 13 November 2009

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE SMITH, J. A THE HON. MRS. JUSTICE HARRIS, J.A THE HON. MR. JUSTICE DUKHARAN, J.A

BETWEEN

EILEEN BEVERLEY STERLING

APPELLANT

AND

FRANK ARTHUR STERLING

RESPONDENT

Gavin Goffe instructed by Myers Fletcher and Gordon for the Appellant

The Respondent unrepresented and not appearing

CIVIL PROCEDURE - Default judgment - Matrimonial proceedings - Distribution of matrimonial property - Consent Order - Civil Procedure Rules 2002, Part 12

SMITH, J.A.

1 This is an appeal against the decision of Beswick J. made on the 27 ^th April 2009 in which she refused the appellant's application for "the court [to] determine the terms of the default judgment to be entered against the defendant".

BACKGROUND

2 The parties to this appeal were married in Toronto, Ontario, Canada in 1976. They separated in 2001. The appellant applied for divorce in Canada in 2003. Before the hearing of the divorce petition, both parties arrived at an agreement in respect of the division of the matrimonial property. Also included in this agreement was an order restraining the respondent from communicating directly or indirectly with the appellant. This agreement was reduced to writing in "Minutes of Settlement" and an Order on Consent was entered in respect of this agreement. The terms of the "Minutes of Settlement" were subsequently incorporated into a Divorce Order of the Canadian court dated March 1, 2006.

3 For the purposes of this appeal, the pertinent terms of this agreement were that:

• "1. The Respondent [Frank Sterling] shall transfer to the Applicant his interest in the jointly owned property in Jamaica known as part of Warwick Mountain in the parish of Saint Ann...

  2. The Applicant [Eileen Sterling] shall transfer to the Respondent her interest in the jointly owned property in Jamaica known as part of Union Pen called Rocky Hill in the parish of Saint Ann..."

4 The appellant has executed all the required documents to transfer her half share in the Rocky Hill property to the respondent. The respondent has refused to execute the required documents to transfer his share in the Warwick Mountain property.

5 On 18 ^th February, 2008, the appellant commenced proceedings by way of claim form and particulars of claim in the Supreme Court of Jamaica. The relevant portion of the particulars of claim reads:

• "4. Before the hearing of the divorce petition in Canada on March 1, 2006, both parties agreed, signed and filed Minutes of Settlement in the Canadian Court, a copy of which is annexed hereto and marked "EBS2".

• 5. The Divorce Order, dated March 1, 2006, reflects the consensus arrived at between the parties, a copy of which is annexed hereto and marked "EBS3".

• 6. The Divorce Order, at paragraph 2, provides that the Defendant shall transfer to the Claimant Warwick Mountain. Paragraph 8 of the Divorce Order also provides that, "the parties shall execute all required documents to give effect to this Order".

• 7. The Defendant has never transferred Warwick Mountain to the Claimant despite great efforts by the Claimant to have the Defendant sign the transfer documents."

Among the orders sought were the following:

• 1. "... the Claimant is entitled to sole ownership of all that parcel of land part of Warwick Mountain in the parish of Saint Ann...

• 2. An order that the Defendant transfer to the Claimant his interest in all that parcel of land part of Warwick Mountain in the parish of St. Ann...

• 3. ...The Defendant execute all the required documents to effect the above transfer.

• 4. "...The Registrar of the Supreme Court be empowered to sign all documents necessary to effect the transfer of the said property, part of Warwick Mountain in the parish of St. Ann, if the Defendant refuses or is unable to do so.

• 5. ...the costs attendant on the transfer of the said property, part of Warwick Mountain in the parish of St. Ann, to the Claimant be borne by the Claimant."

6 The appellant subsequently obtained permission to serve the documents on the defendant outside the jurisdiction and on July 18, 2008, filed a Request for Default Judgment on the bases that the defendant had failed to acknowledge service and to file a defence. The appellant also filed the application for court orders previously mentioned in paragraph 1. The learned judge in dismissing the application gave no written reasons for her decision. However, counsel for the appellant informed this Court that the learned judge orally expressed the view that the order ought to have been enforced by the Canadian court.

7 Two grounds of appeal were filed:

• "(a) The Learned Judge in Chambers erred in not granting the Claimant's application for default judgment as the Claimant is entitled, on the Particulars of Claim, to have the land comprised in Certificate of Title registered at Volume 1259 Folio 614 of the Register Book of Titles transferred to her as sole owner.

• (b) The Defendant having failed to file an Acknowledgement of Service giving a notice of intention to defend, the Claimant is entitled to a default judgment once she has supported the application with evidence on affidavit of her entitlement to the order sought."

Counsel for the appellant, Mr. Goffe, also sought and obtained this Court's permission to amend the orders sought in the Notice of Appeal to include:

• "g. If the Respondent fails to deliver up the requisite Certificate of Title and to execute all the necessary documents to effect the above transfer, then the Registrar of Titles is empowered to cancel the duplicate Certificate of Title registered at Volume 1259 Folio 614 and to issue a new Certificate of Title in the name of the Appellant.

  h. Permission...to serve a copy of the Courts (sic) order by registered post on the Respondent at his last known address outside of the jurisdiction."

8 In his written submissions, counsel for the appellant, Mr. Goffe, pointed out that the language of Part 12 of the Civil Procedure Rules (CPR) that deals with default judgment is mandatory in that it states that the registry, at the request of the claimant, must enter judgment against a defendant once the conditions outlined in the relevant sections of the CPR are met. Before this Court, he submitted that since this was not a case where the judgment was for a sum of money, default judgment could not be entered by the Registrar and in accordance with Part 12.10(4) the court should determine the terms of the default judgment to which the claimant is entitled, having regard to the particulars of claim. He further submitted that if the claim form and the particulars of claim have been served in the manner provided by the CPR and the defendant fails to acknowledge service or file a defence within the appropriate time, once the court satisfies itself that it has jurisdiction and that the Rules have been complied with, it ought properly to determine the terms of the default judgment. Therefore, he argued, since the claimant/appellant had complied with the requirements of the CPR relating to default judgments, she was entitled to default judgment against the defendant/respondent on terms to be settled by the judge. In the alternative, he submitted that if Part 12.10(4) conferred a discretion, the learned judge had wrongly exercised her discretion in refusing the application as she had jurisdiction and the claimant had established by affidavit evidence that she had a good cause of action.

9 In my view, this appeal raises two questions:

Was the claim which gave rise to the default judgment justiciable in this jurisdiction?

• (a) Was the claim which gave rise to the default judgment justiciable in this jurisdiction? If the answer is in the affirmative, then,

  (b) Does Rule 12.10(4) mandate a court/judge to determine the terms of a default judgment where all the prerequisites for entry of such a judgment have been complied with?

10 This question necessarily arises by virtue of the fact that the land giving rise to the claim is located in Jamaica and concerns parties residing in a foreign jurisdiction in which the rights of the parties in respect of this land were determined but for which no judgment had been registered in the Jamaican court. Mr. Goffe submitted that the Canadian court had jurisdiction to determine the rights and interests in the property because the parties were domiciled in Canada. To support this submission, he relied on the case of Chiwell v Carlyon (1897) 14 S.C. 61. Relying also on the case of Earl Nelson v Lord Bridport (1845) 8 Beav 527, he further submitted that the Canadian court did not have jurisdiction to compel a transfer of the property because the general principle is that questions relating to the transfer of property rights in immovables are governed by the lex situs. The Jamaican court is therefore the only court with jurisdiction to effect the transfer, he argued.

11 In my view, it is necessary first to determine which court had jurisdiction to determine the property rights of the spouses and secondly, which court has jurisdiction to enforce/effect a transfer in the property. In Chiwell v Carlyon (supra), a husband and wife who were domiciled in South Africa got married there. They made a joint will disposing of their joint property which was subject to the South African regime of community property. Subsequently, they both became domiciled in England and the husband then acquired property in England. After both had died, the English court was asked to decide whether the land in England had been disposed of by the joint will. The answer to this question depended on whether the land was subject to the South African regime of community property. The English court sent the case for the opinion of the South African Court since both parties...