Suzette Ann Marie Hugh Sam v Quentin Ching Chong Hugh Sam

• Jurisdiction: Jamaica
• Judge: Phillips JA,F Williams JA,Edwards JA (AG)
• Judgment Date: 04 May 2018
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CIVIL APPEAL NO 4/2015
• Date: 04 May 2018

Between

Suzette Ann Marie Hugh Sam

Appellant

and

Quentin Ching Chong Hugh Sam

Respondent

Before:

THE HON Miss Justice Phillips JA

THE HON Mr Justice F Williams JA

THE HON Miss Justice Edwards JA (AG)

SUPREME COURT CIVIL APPEAL NO 4/2015

IN THE COURT OF APPEAL

Family Law - Matrimonial property division — Whether wife was entitled to a one-half interest in several properties.

Stephen Shelton QC, Miss Maliaca Wong and Miss Stephanie Ewbank instructed by Myers Fletcher and Gordon for the appellant

Gordon Steer, Mrs Judith Cooper-Bachelor and Mrs Kaye-Anne Parke instructed by Chambers Bunny and Steer for the respondent

Phillips JA

1 I have read in draft the judgment of Edwards JA (Ag). I agree with her reasoning and conclusion and have nothing further to add.

F Williams JA

2 I too agree and wish to add nothing further.

Edwards JA (AG)

Background

3 This is an appeal from the decision and orders made by P Williams J (as she then was) on 16 December 2014. The appellant, Suzette Hugh Sam, had applied by way of a fixed date claim form, pursuant to the Property (Rights of Spouses) Act (PROSA), for a declaration that she was entitled to a one-half interest in several properties which she alleged that the respondent, Quentin Ching Chong Hugh Sam, her former husband, owned or had an interest in.

4 Part of the background to the claim was amply set out in paragraph [2] of the judge's reasons for judgment as follows:

“The parties were married in November of 1998 after having lived together from 1995. At the time of their marriage the claimant was pregnant with their first child who was born in May of 1999. A second child was born in April 2001. The marriage deteriorated and by 2010 the parties resided in separate quarters in the same house. The defendant say [sic] that ‘differences’ had started from in or around 2008 whereas the claimant say [sic] they started in or around 2005. In any event it was the defendant who filed for divorce and the claimant was served with the petition for dissolution of marriage on the 26 ^th of May 2012.”

5 The orders and declarations sought by the appellant in the court below were as follows:

• “1. That the Claimant is entitled to one-half interest in all that parcel of land situate at Lots 15 and 16 Peter's Rock in the Parish of Saint Andrew…

• 2. That the Claimant is entitled to one-half interest in all that parcel of land situate at lot [8], 4 Dillsbury Avenue, Kingston 6 in the Parish of Saint Andrew…

• 3. That the Claimant is entitled to one-half interest in all that parcel of land situate at 103–105 Barry Street, Kingston.

• 4. That the Claimant is entitled to one-half interest in all that parcel of land situate at 14 Race Course Road, Mandeville, in the Parish of Manchester.

• 5. A Declaration that the Claimant is entitled to one-half of the net annual interest and profits of the aforementioned businesses including: Clean Chem Limited, Sure Save Wholesale Limited, Xtra Supercentre, Hoven Enterprises Limited and Microage Enterprises Limited since incorporation or the commencement of trading and that an account be taken by the Registrar of the Supreme Court of the receipts, payments, dealings and transactions of the Defendant, his servant or agents in respect of the management or operation of the said businesses from their incorporation or the commencement of trading.

• 6. A Declaration that the Defendant is liable to account to the Claimant for all sums of money removed from their businesses and invested in the several other businesses referred to in the Claimant's affidavit.

• 7. An order that the Land Rover, 2008 Registration Number 4949 FM, Chassis Number SALLSAA138A185418, Engine number 0326576DT truck be transferred into the name of the Claimant free of all encumbrances.

• 8. That the aforementioned properties be valued by a reputable valuator to be agreed by both parties and in the absence of an agreement by a valuator appointed by the Registrar of the Supreme Court.

• 9. That the Registrar of the Supreme Court be empowered to execute the relevant transfers on behalf of the Defendant in respect of the properties to be sold and the motor vehicle, in the event that the Defendant refuses or neglects to do so.

• 10. That the Claimant has the first option to purchase the properties referred to and mentioned at paragraphs one (1) and two (2) above. The said option to be exercised within thirty (30) days after Notice of Valuation being given, failing which the said properties be sold on the open market by private treaty or public auction.

• 11. That the Defendant has the first right of refusal to purchase the properties, shares and interest referred to and mentioned at paragraphs three (3), four (4), five (5) and six (6) above. The said right to be exercised within (30) days after notice of valuation has been given, failing which the said properties be sold on the open market by Private Treaty or by Public Auction.”

The properties that were the subject-matter of the appellant's claim therefore, included real property, companies or shares in those companies and a motor vehicle.

6 Having heard the parties, the judge made the following orders:

• “(1) The claimant is entitled to one-half interest in all that parcel of land situate at Lots 15 and 16 Peter's Rock in the parish of St. Andrew registered at Volume 1189 and Folio 95 and Volume 1178 Folio 458 of the Register Book of Titles.

• (2) This property is to be valued by a reputable valuator to be agreed by both parties and in the absence of an agreement; by a valuator appointed by the Registrar of the Supreme Court. Cost of the valuation to be borne equally by the parties.

• (3) The claimant has the first option to purchase the property. Said option is to be exercised within thirty (30) days after notice of valuation is given. If the option is exercised and the defendant refuses or neglects to sign the documents to effect this sale and transfer the Registrar of the Supreme Court is empowered to sign.

• (4) In the event the claimant does not exercise the option, the defendant is given the option to purchase the property within thirty (30) days of the expiration of the time given the claimant;

• (5) If neither party seeks to purchase the property then the property is to be sold on the open market by private treaty or public auction and the proceeds of this sale is to be shared equally between the parties;

• (6) The claimant is entitled to 50% interest in the shares of Clean Chem Limited in the name of Quentin Hugh Sam;

• (7) Liberty to apply;

• (8) No order as to costs.”

7 The appellant was, therefore, only successful in relation to her claim for a share in two of the properties, namely, Peter's Rock and Clean Chem Limited.

The appeal

8 In the notice of appeal filed on 27 January 2015, the appellant listed some 23 grounds of appeal which were stated as follows:

• “a) The Learned Judge erroneously characterized the Appellant's claim in respect of the property at 4 Dillsbury Avenue as being limited to the land alone and not inclusive of the townhouse built thereon; having stated that ‘it is agreed that the townhouse unit that the parties occupied had to be completed by them’ (paragraph 19 of the Reasons for Judgment) and the Claimant participated in the construction. (Paragraph 34 and 100 of the Reasons for Judgment)

• b) The Learned Judge failed to have regard to the distinction between legal and equitable interests in real property;

• c) The Learned Judge failed to have sufficient regard to the principles of Abbott v Abbott Privy Council Appeal No. 142 of 2005 in respect of gifts;

• d) The Learned Judge erred in failing to take into account or credit the Appellant with the appreciation in value of the Hopefield property when the evidence was that the property at Hopefield Avenue was acquired for $7,002,000.00 as the home the family resided in for more than a decade until its sale for $17M in 2010 when the family moved into the property at 4 Dillsbury Avenue;

• e) The Learned Judge erred in failing to find that the Appellant was not entitled to a one-half share of the Respondent's interest in Hoven Limited;

• f) Having accepted the evidence of Alva Lobban that the several businesses were operated by the respondent as a single enterprise, the Learned Judge erred in failing to find that the appellant was entitled to a share in the other businesses or a share of the interest of the Respondent in those businesses;

• g) The Learned Judge erred in failing to have sufficient regard to section 14 of the Property Rights of Spouses Act (PROSA);

• h) Having found that there was no family home, the Learned Judge erred in failing to properly consider the factors under Section 14 of the PROSA, especially the factors stated at sections 14(2)(a), (b) and (d).

• i) Having found that the property at Peter's Rock was bought from the co-mingled resources of the Appellant and Respondent, the Learned Judge erred in finding that the parties' resources were not mingled to acquire other properties held in the respondent's name;

• j) Having found that the property at Peter's Rock was bought from the mingled resources of the Appellant and Respondent, the Learned Judge erred in finding that the source of the funds, i.e. income earned from the relevant businesses, were not also mingled.

• k) The Learned Judge erred in not applying the principles of Prest v Prest [2013] 2 AC 415 to determine the true interest of the parties in the companies;

• l) The Learned Judge erred in failing to have sufficient regard to the Respondent's email dated February 17, 2011 in finding that it was not relevant because it was not a binding agreement when the said email should have been considered as evidence of the Respondent's contemporaneous understanding of the parties' interest in the relevant businesses;

• m) Having accepted the evidence that the businesses were co-mingled (Reasons for Judgment: paragraph 113)...