Vincent Lloyd Guthrie v Dorretta May Guthrie

• Jurisdiction: Jamaica
• Judge: CORAM: ANDERSON J
• Judgment Date: 19 July 2011
• Judgment citation (vLex): [2011] 7 JJC 1902
• Date: 19 July 2011
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. HCV – 3430 OF 2009

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

CLAIM NO. HCV – 3430 OF 2009

BETWEEN

VINCENT LLOYD GUTHRIE

CLAIMANT

AND

DORRETTA MAY GUTHRIE

DEFENDANT

Mr. Gordon Steer instructed by Chambers Bunny and Steer for the Claimant; Ms. Audrey Clarke instructed by Judith Clarke and Co. for the Defendaant.

Claim for division of property and other remedies under the Property (Rights of Spouses) Act section 14; Whether suit brought within time specified in section 13; If not, whether application necessary to extend time for bringing suit; whether if no such application matter proceeds under ordinary principles of equity and trusts; rights of joint bank account holder; liability for jointly acquired debts.

CORAM: ANDERSON J

1 (1) The Claimant and the Defendant who have been married to each other some thirty four (34) years since 1977, separated in 2006. They have between them three children and several pieces of real estate are now before this court in relation to claims by the Claimant over certain of the real property. By way of a Fixed Date Claim Form dated June 17, 2009, the Claimant (now the estranged husband) claims the following reliefs or orders:–

• (a) That the Claimant is entitled to the entire beneficial interest, in the property known as Lot 123, Orchard Gardens Subdivision, Hopewell, in the parish of 1Hanover, registered at Volume 1313, Folio 776 of the Register Book of Titles.

• (b) That the Claimant is entitled to the fifty percent (50%) interest and the Defendant entitled to fifty (50%) in the property located at Sheffield called Mt. Zion, in the parish of Westmoreland, registered at Volume 1214, Folio 792, Volume 1214, Folio 793 of the Register Book of Titles.

• (c) That the Claimant is entitled to the sixty percent (60%) interest and the Defendant entitled to forty (40%) in the property located at Lot 24, Pitkelleny Sub-division, West Cliff Estates, in the parish of Westmoreland, registered at Volume 134, Folio 933 of the Register Book of Titles.

• (d) That the Claimant is entitled to the fifty percent (50%) interest and the Defendant entitled to fifty (50%) in the property located at Lot 93 Nompariel, Land Settlement, Negril P.O. in the parish of Westmoreland.

• (e) That a valuation agreed upon by the Claimant and the Respondent be taken and that costs of same be shared proportionally by the parties.

• (f) That if no valuator can be agreed upon then one shall be appointed by the Registrar of the Supreme Court.

• (g) That the Claimant be given the first option to buy the said properties, within 30 days of the receipt of the valuation.

• (h) That should the Claimant be unable or unwilling to exercise his first option to purchase then the said properties be put on sale on the open market by public auction or by private treaty.

• (i) That the Registrar of the Supreme Court be empowered to sign any and all documents to make effective any and all orders of this Honourable Court if either party is unable or unwilling so to do.

• (j) That the Defendant account for the monies removed from the joint accounts numbered 606402236 & 606404484, held at NCB Negril, and the joint account numbered 711352 held at NCB Capital Markets, as well as the joint account numbered 4513879 held at JMMB.

• (k) That the Defendant shall refund the Claimant one-half of the payments made by him with respect to servicing the parties jointly acquired debts.

• (l) Such further and other relief that Court deems just.

• (m) Such costs as are incidental to the proceedings.

2 (2) The Claimants claim is supported by his affidavit evidence contained in five (5) affidavits dated respectively June 19, 2009; October 22, 2009; January 19, 2010; July 5, 2010 and February 26, 2011. The Defendant has herself filed four affidavits in response to the claim by her husband, as follows: December 9, 2009, December 10, 2009, June 9, 2010 and March 31, 2011.

3 (3) Although the Claimant has set out in the Fixed Date Claim Form the various reliefs he is seeking, the Defendant does not join issue with him except insofar as the claims at paragraph (a) (c) (k) and (l). These relate to the claims to property at the Orchard Garden Subdivision in Hopewell, Hanover registered at Volume 1313 Folio 776 of the Register Book of Titles; property at Pitkelleny in the Parish of Westmoreland and registered at Volume 134 Folio 933 of the Register Book; a claim for the Defendant to repay certain sums purportedly removed by her from joint accounts maintained by the parties at National Commercial Bank, NCB Capital Markets and JMMB; and a further claim that the Defendant should refund the Claimant one-half of certain sums paid by the Claimant, purportedly in servicing jointly acquired debts of the parties.

4 (4) While the evidence adduced by the parties covered many other issues such as the nature of their relationship, it will only be necessary to examine the evidence in relation to those matters in respect of which issues have been joined.

5 (5) The Claimant says he is a person who had always been interested in making investments in real estate and he had purchased property in Shrewsbury Housing Scheme in Westmoreland with his own resources. He avers that after the purchase of Shrewsbury, the family resided in a home there. Some time afterward, he says he took up a job in Mt Airy, Westmoreland and the family moved into the school cottage provided there, where his wife continues to reside. He further states that he bought three (3) other lots of land, the first being property at Sheffield in or around 1989. Subsequently, he says he purchased the Pitkelleny property ‘for the purpose of building a home for my family to reside in’. Later still, he saw a property at Hopewell ‘which too could be used to build a home for my family’. He decided to purchase this property as well, ‘to give me more options when I raised enough funds to start the design and eventually commence construction on a home’. He says that in 2005 he had accumulated enough funds and so he started construction of a house on Pitkelleny ‘completely on my own’. He says that he has met the construction costs and continued to work on the property after the parties separated in 2006, although he acknowledges that between September and December 2008, his wife ‘has done some mason work to the property’.

6 (6) In the penultimate paragraph of his first affidavit, the Claimant states: ‘That over the years of our marriage I have supported the household and educated our children who are now young professionals’.

7 (7) He acknowledged that properties were ‘purchased in the joint names of the parties, although the Claimant claims they were purchased from my sole resources without any assistance from the Defendant, save and except the property at Nonpareil, in which the title was taken in the sole name of the Defendant, although I helped to fund same’.

8 (8) The Claimant further stated:

‘That even though the defendant contributed nothing to the properties' acquisition, save and except Nonpareil as stated aforesaid, I placed her name on the titles just in case anything happened to me’.

9 (9) The Defendant, on the other hand claims that any property acquired by them was acquired from their joint pooled resources and for no other reason than the joint benefit of the parties and the family. Indeed, she asserts that although the property at Nonpareil was in fact, purchased solely by her through a facility under the Land Settlement Programme, ‘it was always intended, as in the case of all other acquisitions for the benefit of the union and the family in general notwithstanding the fact that the benefit was specifically attached to my employment which facilitated the provision of the parcel under the Land Settlement Programme as an incentive to encourage teachers who were employed in that particular geographical area.’

10 (10) It was submitted on behalf of the...