Walker (Maxine) v Hiram Walker

• Jurisdiction: Jamaica
• Court: Supreme Court (Jamaica)
• Judge: Williams, J.
• Judgment Date: 19 November 2008
• Judgment citation (vLex): [2008] 11 JJC 1901
• Date: 19 November 2008
• Docket Number: <style type="italic">

BETWEEN

MAXINE WALKER

RESPONDENT/APPLICANT

AND

HIRAM WALKER

APPLICANT/RESPONDENT

IN CHAMBERS

Appearances

CLAIM NO. E163 OF 2002

IN THE SUPREME COURT OF JU DICATURE OF JAMAICA

CIVIL PROCEDURE - Court Order - Real property - Order for declaration of entitlement of 95% share of value of property - Application to set aside Order - Civil Procedure Rules 39.6

Ms. V. Green for the applicant/Respondent.

Ms. K. Balli for the respondent/applicant.

Application to set aside under CPR 39.6

Williams, J

1 Background

2 On March 14, 2002 Maxine Walker instituted proceedings by way of Originating Summons for the determination of issues between herself and Hiram Walker with respect to property situated at Lot 473 Charlemont, Linstead in the parish of St. Catherine. She asked inter alia for a declaration that she was entitled to 95% share of the value of the said property and Mr. Walker to 5%.

3 On the 20 ^th of June 2002 she obtained an order exparte, before the Master for Substituted Service of the Originating Summons and Notice of appointment to hear the summons on Mr. Walker by two (2) publications of the said notice in the North American Edition of the Jamaica Weekly Gleaner Newspaper seven (7) days apart.

4 This order was complied with and on the 26 ^th of November, 2002 an order was made by Mr. Justice Jones largely in accordance with what Maxine Walker had requested in her Originating Summons. This order was:-

• 1. That the property situated at Lot 473 Charlemont, Linstead in the parish of St. Catherine, be valued by a reputable valuator and apportioned 95% and 5% respectively.

• 2. That it is declared that the applicant is entitled to 95% share of the value of the property situated at Lot 473 Charlemont, Linstead Post Office in the parish of St. Catherine.

• 3. That the respondent be entitled to 5% share of the value of the said property situated at Lot 473 Charlemont, Linstead Post Office in the parish of St. Catherine.

• 4. That the costs incidental to the valuation of the said property be borne by the respondent and shall be deducted from his share.

• 5. That the applicant pays the respondent the sum equivalent to his 5% share in said property at 473 Charlemont, Linstead Post Office in the parish of St. Catherine less all deductibles.

• 6. That in the event of the respondent refusing to sign the transfer or any other document necessary to give effect to this order that the Registrar of the Supreme Court be empowered to sign same.

• 7. That the costs of this application be borne by the respondent and shall be deducted from his share.

5 In January 2004 Maxine Walker filed an affidavit seeking to have the Registrar sign the instrument of transfer. She said that efforts made to locate the respondent proved futile. Her request was granted, the documents duly signed and the property transferred with transfer registered on the 4 ^th of May 2006.

6 The application

7 Hiram Walker now applies to have set aside the order made by Mr. Justice Jones on the 20 ^th of November 2002 and the transfer cancelled.

8 This application is pursuant to 11.18 and 39.6 of the Civil Procedure Rules. This is another of those matters which commenced under the old Civil Procedure Code and must now be considered under the new rules.

9 Rule 11.18 applies to the setting aside of court order and hence it is 39.6 of the CPR which ultimately would apply to this application.

10 Rule 39.6 states:-

• (1) A party who was not present at a trial at which judgment was given or an order made in its absence may apply to set aside that judgment or order.

• (2) The application must be made within fourteen (14) days after the date on which the judgment or order was served on the applicant.

• (3) The application to set aside the judgment or order must be supported by evidence on affidavit showing:-

  • (a) a good reason for failing to attend the hearing and

  • (b) that it is likely that had the applicant attended, some other judgment or order might have been given or made.

11 Hiram Walker, the applicant/respondent asserts he was not aware of the proceedings before the Court and had in effect been denied his day in court which he now seeks.

12 The first matter to be considered is the timing of the applicant/respondent's application. It is now some six (6) years after the order being sought to set aside was granted.

13 Mr. Walker asserts he was not made aware of the order till the 9 ^th of March 2006. This is not challenged by Mrs. Walker, the respondent/applicant, neither is there any assertion that Mr. Walker was at any time served with the judgment or made aware of the orders contained therein.

14 This raised the issue as to whether there was any specific requirement for the judgment to have been served.

15 Both counsel agreed that there was no clear statement of such a requirement under the Civil Procedure Code in existence at the time the order was made.

16 The only express provision that made reference to this was found at Section 588 which stated:

Where any person is by any judgment or order directed to pay any money or to deliver up or transfer any property real, or personal to another, it shall not be necessary to make any demand thereof but the person so directed shall be bound to obey such judgment or order upon being duly served with the same without demand.

17 Ms. Balli argues that the judgment in this matter was a declaratory judgment with consequential orders being made thereto. Such an order has no requirement for service she urges.

18 The Court, she further argues, in this case was empowered by virtue of section 16 of the Married Women's Property Act (now repealed); to declare the existing interests in property as between husband and wife. Hence the determination having been made that Mrs. Walker was owner of 95% of the property, "such a declaration was not required to be served on the defendant, having been properly served with the originating summons as it contained no direction to him or any other person interested in the matter to do any act so as to ensure that the court's ruling was carried out."

19 Following on this argument of Miss Balli's it appears...