Sylvester Dennis v Lana Dennis

• Jurisdiction: Jamaica
• Judge: Phillips JA,McDonald-Bishop JA,F Williams JA (Ag)
• Judgment Date: 29 November 2016
• Neutral Citation: JM 2016 CA 109
• Docket Number: SUPREME COURT CIVIL APPEAL NO 36/2014
• Court: Court of Appeal (Jamaica)
• Date: 29 November 2016

[2016] JMCA Civ 56

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Miss Justice Phillips JA

The Hon Mrs Justice Mcdonald-Bishop JA

The Hon Mr Justice F Williams JA (AG)

SUPREME COURT CIVIL APPEAL NO 36/2014

Between

Sylvester Dennis

Appellant

and

Lana Dennis

Respondent

John Clarke for the appellant

Miss Tavia Dunn and Mark-Paul Cowan instructed by Nunes Scholefield DeLeon & Co for the respondent

Phillips JA

1 This is an appeal against the decision of R Anderson J, made on 15 July 2011, granting summary judgment on a claim filed by the respondent to obtain money that she alleged was owed by the appellant, pursuant to an agreement made in the Superior Court of Justice for Ontario, Canada. The appellant is seeking to challenge the decision of R Anderson J on the bases that inter alia: (i) the pre-requisites for the enforcement of a foreign money debt in Jamaica had not been satisfied and so the agreement made in the Canadian court is unenforceable in Jamaica; and (ii) summary judgment ought not to have been awarded in the matter since there were substantial issues in dispute between the parties which required investigation at trial.

Background

2 The parties were married on 19 October 1974, in Ontario, Canada. The respondent filed a petition for divorce in the Superior Court of Justice, Ontario, Canada in May 1999. In paragraph 11 of the respondent's affidavit, filed in support of her divorce petition and sworn to on 9 November 1999, she indicated as follows:

“I am aware that a claim for a division of property has not been sought and may be barred after the Divorce. However, we have divided the matrimonial property to my satisfaction and I am satisfied with the arrangement.”

3 The divorce became finalised on 28 February 2000, in Toronto, Ontario, Canada. The respondent thereafter sought and was given leave to amend her divorce petition to claim for equalization of net family property on 25 July 2003. The appellant represented himself during this application. The respondent thereafter filed proceedings for division of property in Canada and Jamaica in the Superior Court of Justice, Ontario, Canada. The property in Jamaica is situated at Unity District, Langton Hill in the parish of Saint Andrew comprised in certificate of title registered at volume 953 folio 409 of the Register Book of Titles (hereinafter referred to as “the property”).

4 The application for division of property had been set for trial before van Rensburg J in the Superior Court of Justice on 14 October 2008, at which time the learned judge conducted mediated settlement discussions. Arising from these discussions, the parties had agreed to a global settlement of all claims and the respondent's attorney, Miss Mahzulfah Uppal, was ordered to prepare the minutes of the settlement in accordance with the agreement, to be reviewed by the parties and the learned judge in court the next day at 3:00 pm. On 15 October 2008, the minutes of the learned judge indicated that there were concerns about the mechanism and timing of the transfer of the respondent's interest in the property and so the matter was adjourned to 4 November 2008, so that Miss Uppal could consult with a Jamaican attorney to that effect and to finalise the order.

5 On 30 October 2008, the appellant wrote to Miss Uppal indicating that he was reluctant to enter into the settlement being imposed on him. The appellant indicated that he had agreed to pay the respondent CAD$100,000.00 to dispose of the court matter because he had learned that his sons were subpoenaed to testify and he wanted to keep his children out of his legal affairs. He further indicated that he was impecunious as a result of his inability to work due to injuries he had received in an accident at the workplace, and so he would be unable to make payments to the respondent. He further indicated that he felt that his impecuniosity had prevented him from securing the services of an attorney which in turn severely hampered his opportunity to adequately present his case.

6 In the said letter, the appellant further noted that on 5 June 2003, he had filed a motion against the respondent seeking spousal support, child support and half payment of a matrimonial debt which had also been ignored. The appellant also noted that in August 2003, the respondent had filed a motion to amend her divorce petition to include a claim for division of property, approximately three years after the divorce judgment was issued. The appellant asserted that this amendment had been granted even though the respondent had written a letter to him, after their separation, indicating that he “can have it all” in Jamaica because her happiness was more important, and even though she had indicated in her divorce petition that there would be no claim for division of property. The appellant also stated in his letter that both parties had agreed to pay half of a loan and sell a trailer that was jointly owned and to share the proceeds equally. The appellant also asserted that the respondent had no interest in the property in Jamaica since she had made no meaningful contribution to its upkeep and there was a mortgage on the property in the sum of J$800,000.00 that had been jointly obtained and he had been making the payments with the help of family members.

7 van Rensburg J, in minutes dated 4 November 2008, indicated that:

“The parties have been unable to agree on the mechanism to effect the finding [sic] of the settlement and the release of [the respondent's] interest in the jointly held property in Jamaica. [The appellant] has reiterated his original position and is attempting to resile from the earlier settlement. That settlement that was entered into by the parties on October 14 ^th is binding on them. Order to go in the terms agreed to and reflected in my endorsement of October 14 ^th.”

8 On that said date van Rensburg J made the following order:

• “1. An order shall issue in the terms agreed to and reflected in the endorsement of October 14, 2008, which reflect a global statement of all claims are as follows:

  • a. The [appellant] shall pay to the [respondent] the sum of $200,000.00 (Can.) as follows:

    • i. $100,000.00 on or before April 14, 2009; and

    • ii. A further $100,000.00 before October 14, [2009].

  • b. If there is a default on the first payment, the [appellant] will pay a penalty of $10,000.00.

  • c. If there is a default on the second payment, the [appellant] will pay a penalty of $20,000.00.

• 2. Upon the payments being made of the amounts in paragraph one (1) above, the [respondent] will release her half-interest in the jointly owned Jamaican property registered as Volume 953, Folio 409, in the Register Book of Titles, being part of Unity District, known as Langton Hill, in the parish of St. Andrew.

• 3. THIS IS A FINAL ORDER in this court and all other claims and cross-claims of the parties are dismissed. This is a global settlement and is intended to address the [respondent's] claims for support and for the sharing of debts including loans by Household Finance under loan number 102537 and Scotiabank.

• 4. THIS FINAL ORDER shall be enforceable as a Judgment in both Ontario and Jamaica.

• 5. THIS FINAL ORDER bears interest at the rate of 5 percent per annum on any payment or payments in respect of which there is a default from the date of default.

• 6. ON CONSENT the [respondent] is to make arrangements for the [appellant] to pick up the dining room set currently in her possession in January 2009.

• 7. There shall be no costs payable by either party.”

9 In a letter dated 20 July 2009, Mr Patrick Di Monte, a Canadian attorney, wrote to Miss Uppal indicating that he was retained by the appellant and would be seeking leave to extend time to appeal the decision of van Rensburg J. Miss Uppal responded in a letter dated 22 July 2009, indicating that the time for appeal had passed and that the order had been made with the appellant's consent.

10 The appellant failed to pay the sum as ordered and so the respondent filed a claim form and particulars of claim on 2 November 2009, in the Supreme Court of Judicature of Jamaica seeking the following orders:

• “1. An Order pursuant to the Partition Act for the partition and/or sale of ALL THAT parcel of land part of UNITY situate at LANGTON HILL in the parish of ST. ANDREW and being the land comprised in Certificate of Title registered at Volume 953 Folio 409 of the Register Book of Titles (hereinafter called “the Property”) owned jointly by the [respondent] and the [appellant].

• 2. Such further orders and/or consequential directions for the sale of the Property as the Court thinks fit.

• 3. Alternatively, for the sums due pursuant to “global settlement agreement” reflected in order dated November 4, 2008 and issued by the Superior Court of Justice, Ontario, Canada as follows:-

Principal payment due	[CAD]$230,000.00
Together with interest at 5% per annum as follows: i. on the sum of [CAD]$110,000.00 from 15/4/09 to 2/11/09 Daily rate of interest from 3/11/09: [CAD]$15.07	[CAD]$3,043.84
ii. on the sum of [CAD]$120,000.00 from 15/10/09 to 2/11/09 Daily rate of interest from 3/11/09: [CAD]$16.44	[CAD]$312.33
Court Fees	J$2000.00
Attorney's Fixed Costs on issue	J$10,000.00
Total Amount claimed	[CAD]$233,356.17 J$ 12,000.00”

11 The respondent particularised that as a result of the appellant's failure to pay the sums owed, she had not transferred her one-half interest in the property to him and the parties therefore remained joint owners of the property.

12 The appellant filed a defence and counter-claim on 1 March 2010. In his defence he stated that:

• (i) The respondent swore to an affidavit in support of her motion for divorce, wherein she indicated that the parties had divided the matrimonial property to her satisfaction and that she was satisfied with that arrangement.

• (ii)...