Suzie-Ann Dunkley v Errol Clarke
| Jurisdiction | Jamaica |
| Judge | T. Hutchinson, J |
| Judgment Date | 03 April 2020 |
| Date | 03 April 2020 |
| Docket Number | CLAIM NO. 2015 HCV 02484 |
| Court | Supreme Court (Jamaica) |
[2020] JMSC Civ 58
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
CLAIM NO. 2015 HCV 02484
Tia Tomlinson and Fabian Campbell instructed by Frances J. Barnes for the Claimant
Kayann Balli for the Defendant
Application for Declaration of Ownership — Matrimonial Property — Property other than the family home — Contribution — Section 14 PROSA
T. Hutchinson, J (AG)
The application before me is a Fixed Date Claim Form which was filed on the 7th of May 2015 in which the Claimant sought a total of 10 orders. The majority of these orders had previously been dealt with by way of a Consent Order entered on the 11th of May 2017 and only three orders remain for decision. These are;
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1. A declaration that the Claimant is the sole owner of a 2007 Green Toyota Hiace motor vehicle registration CH3720, Chassis No. KDH2005002008 and Engine No 2KD1305416.
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2. An order that the Defendant deliver up the said 2007Hiace motor vehicle registered CH3720 to the Claimant forthwith together with all documents to the said motor vehicle and the Certificate of Title with the transfer duly endorsed so as to effect a proper transfer of the said motor vehicle to the Claimant.
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3. That the Defendant is to sign any and all documents necessary to facilitate the necessary processing of the transfer of the said vehicle to the Claimant solely.
The Claimant provided a total of 3 affidavits in this matter in which she outlined her case and the basis of her claim to this vehicle. In her account she stated that she had been involved in a common law relationship with the Defendant for fifteen years during which they had two children. She outlined that they had also acquired a dwelling house in Portmore, St Catherine which was already disposed of by the Consent Order referred to above.
She stated that in August 2013 her father passed away leaving her as the beneficiary of his estate from which she received the sum of $4,078,396.86. She outlined that at the time that this sum was due for payment to her she did not possess a savings account and she received the consent of the Defendant to have this sum deposited to his account at NCB. She later sent a letter to her attorney directing that the funds be deposited to this account.
The money having been deposited to the account, the Claimant stated that she had a conversation with the Defendant during which she indicated that she wished to purchase a vehicle to assist in her work and pursuant to this discussion funds were withdrawn from the account which were used to purchase, license and insure the vehicle. She recalled that the purchase price was $1.4 million and she later stated that the total cost to deal with the vehicle was $1.6 million.
She outlined that having purchased the vehicle she subsequently became aware that the Defendant had the transfer effected in his name only and the situation was the same in respect of the insurance. She denied that the vehicle had been purchased by the Defendant from savings held at the Police Co-operative Credit Union combined with a partner draw. She also insisted that it was not true that the Defendant had such an account and she also denied that he had ever been involved in a partner. She stated that the Defendant used to sell for his sister using her (the sister's) vehicle and she, the Claimant, began assisting him in this enterprise when she lost her job in 2009.
She stated that although the Defendant had been in business with his sister, this relationship subsequently ended and it was just the two of them. She outlined that it was through her inheritance that the Defendant was able to travel to China as she provided over $2 million to fund his trip and for spending money. She noted that she also covered the funeral expenses for her father from this money and these expenses along with the purchase of the motor vehicle ended up depleting the account.
She averred that the receipt for the vehicle, which bore both their names, had been retained by the Defendant and she denied destroying same. She also outlined that the papers for the vehicle had also been retained by him even though he had acknowledged that the vehicle was hers. She denied that she had ever held a debit card for the account and stated that there was only one card for the account which was held by the Defendant and she had access to it. She stated that a card would not have been provided to her as she was not named on the account.
In relation to the monies withdrawn for the purchase of the vehicle, to fund the trip to China and to finance her father's funeral expenses she outlined that the Defendant would have been present as the account holder in order for these withdrawals to be done.
She was cross examined and denied that the Defendant and his sister had been in business while she was working at Unipet. She later admitted that they had been but stated it was hard to just say yes and wanted to clarify. She denied that she had only gone into business with the Defendant after her father had died and insisted that she had been involved in the business from 2009 along with the Defendant.
She acknowledged that the vehicle initially being used in the business was registered in the Defendant's name but was in fact owned by his sister. She agreed that this vehicle was sold and the full value given to the Defendant's sister representing her investment in the business. She also agreed that the Defendant's investment while in business with his sister was his labour.
She was shown the bank records for the Defendant's NCB account and acknowledged that on the 17th of September 2013 the sum of over $4 million was deposited to the account. She also acknowledged that $2 million was withdrawn that same day. She denied that this money was used to purchase the US dollars for the Defendant's trip to China and indicated that it was from this sum that the vehicle was purchased and insured and the balance left over was placed with the $1.2 million dollars withdrawn the following day to purchase the US and finance the Defendant's trip to China.
It was suggested to her that the $2 million dollars was used to purchase the US dollars and the $1.2 million to pay for his hotel and airfare and she denied this. It was suggested to her that the vehicle was purchased on the 23rd of September 2013 and she agreed it was September 2013 but denied it was on the 23rd.
It was suggested to her that the sum of $478,000 had been used to finance her father's funeral and she denied that all of it was used for that purpose. It was suggested to her that in her affidavits she had made mention of $1.4 million being withdrawn to purchase the vehicle and later $1.6 million withdrawn to cover purchase, insurance and registration but no such withdrawals appeared on the bank records. She accepted that it didn't and explained that this was because that wasn't how it was withdrawn, the sum of $2 million was taken and the purchase and other payments were made from same.
She was shown a receipt dated the 23rd of September 2013 and it was suggested to her that this was the receipt provided by the vendor. She denied that it was. She stated that the receipt given would have had both their names. She then stated that the receipt produced probably had the Defendant's name only as he was the one who gave the money to the vendor.
She was asked if she had access to the account between the 25th September and 18th of October 2013 while the Defendant was in China and she agreed that she did by way of debit card and that the withdrawals in that period were done by her in association with household expenses.
In response to questions from the Court she stated that the $2 million had been withdrawn from the account by her and the defendant. She outlined that the money having been withdrawn they met up with the vendor by Pastor Blair's Church in Portmore where the payment was made. She said they then went with the vendor to have the transfer effected after which the insurance and registration were effected through funds provided by her. In relation to the $1.2 million she said this along with funds left over was used to purchase the US dollars for the trip to China.
In outlining his defence, Mr Clarke provided two affidavits which stood as his evidence in chief. He acknowledged that he and the Claimant had been involved in a relationship during which they had two children. He also accepted that during this relationship they had acquired a dwelling house in Portmore.
He acknowledged that the Claimant had received a benefit under her father's estate and that he had agreed for her to use his account in order to receive this payment. He stated that part of their agreement was that she would get a debit card for this account which would be hers exclusively. He stated that he was aware that money went into the account but he was not aware of how much neither did he withdraw any of it. He stated that the Claimant had exclusive use of the account and he did not use that account at all.
He denied that he had ever had a conversation with the Claimant about purchasing a vehicle whether together or exclusively for her. He said he was aware that his friend had a vehicle for sale and saw where he could use same to transport his goods and that was how he decided to make this purchase.
He outlined that he had always been a higgler engaged in selling shoes and when the Claimant lost her job in 2008 she stopped working and he was the one who supported her. He also denied that she had ever helped him in the business. He stated that he used to save his money through his sister who worked at the Police Co-operative Credit Union and he was also involved in two partners.
He stated that when he decided to purchase the...
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