Delzine v Stowe

`Citation:          TT 2002 HC 111

Title:                DELZINE v. STOWE

Country:           Trinidad and Tobago

Court:              High Court

Suit no.:           H.C.A. No. 3007 of 2001

Judge(s):         Mendonca, J.

Date:               July 21, 2002

Subject:           Family Law

Subsubject:     Unmarried couple – Application for property division and maintenance – Cohabitational Relationships Act, 1998

 

Appearances:

Mr. P. Lamont for the plaintiff.

Mr. I. Benjamin for the defendant.

 

MENDONCA, J.: The plaintiff by summons dated November 19th 2001 applied under the Cohabitational Relationships Act, 1998 (the Act) for maintenance for himself and for the transfer of part of the defendant’s interest in the following properties: (end of page 1)

 

(i)   No. 2 Coastal Drive, Windsurf, Westmoorings-By-the-Sea

(ii)   29 East Windsurf Road, Western Keys, Westmoorings By-the-Sea

(iii)  Partnar Street St. James

 

At the outset of the hearing of the summons the plaintiff expressly abandoned the application for maintenance and proceeded only with the application relating to the properties. The plaintiff claims that by virtue of his financial and other contributions including his contribution in the capacity of parent he is entitled to a half interest in the properties. The nature and quality of the defendant’s contributions are seriously in dispute in this matter.

There are however certain facts not in dispute. In 1978 the plaintiff and the defendant began an intimate relationship and the plaintiff moved into the defendant’s apartment on Anna Street in Woodbrook. They continued to live together for at least 18 years. The plaintiffs position is that the relationship came to an end in 1996 or 1997 whereas the defendant claims that the relationship ended in October, 2000. I will refer to this later in this judgment. The relationship for whatever period it lasted was essentially a continuous one from 1978 to 1976 or 1997 or 2000 save for possibly a few periods on which neither counsel placed any emphasis or reliance. During their relationship the defendant had three children. The first Devon, was born on November 233, 1979; the second, Darnel was born on August 27th 1984 and the third Davier was born in 1987. The defendant claims that the third child Davier is not the child of the plaintiff. Whether that is so or not it is not in dispute in these proceedings that Davier lived in the same household and (end of page 2) although the defendant suggested that the plaintiff may not have treated as a child of the relationship at least after a certain point in time I do not consider the evidence for this sufficiently probative for me to say that Davier for the purpose of these proceedings was not essentially treated as a child of the relationship.

The defendant started business in January 1973 when she was 16 years old selling ice cream and other snacks from her mother’s apartment at Duncan Street in Port of Spain. In early 1974 she went to Curacao for the first time to buy clothing and cosmetics for sale in Trinidad. Her mother pawned her jewelry and gave her money to buy merchandise which she sold from her mother’s apartment for eight months. The defendant’s father who was a street trader helped her to become a street trader and with the help of her brothers set up a clothing stall on Frederick Street.

When the defendant began to live with the plaintiff in 1978 the defendant was a street trader with a clothing stall on Frederick Street in Port of Spain. The plaintiff was employed as an A Class Spray Painter at Geddes Grant earning $130.00 per week.

It is the plaintiff’s contributions to and involvement in the business that is the source of greatest dispute in this case. It is not disputed that the business provided the funds for the acquisition of the properties and other assets. It was in essence the only source of income. The defendant claims that the plaintiff was no more than her employee in respect of the business whereas the plaintiff claims he was a partner in the business. To (end of page 3) continue the factual background, and as it will emerge later in this judgment what I believe to be the case, I will treat the business as being the defendant’s business.

In 1980 the defendant moved her business off the street and into the People’s Mall. It seems that within a short space of time four booths were built or acquired at the People’s Mall all in the defendant’s name. Two of the booths were merged into one and at one point for a short while all three booths were in operation together. From there the defendant sold clothing for ladies and gentlemen, hair supplies and operated a hairdressing saloon. Eventually two of the booths were sold. The merged booths were retained and as far as I understand exists today under the name of Hair Supply.

In the mid 1980’s the defendant acquired a shop in Colsort Mall in Port of Spain and there established a cosmetic store called Lipstick. A hairdressing saloon was also operated there. The store was subsequently expanded. In 1995 the defendant opened a branch of Lipstick in Long Circular Mall in Maraval.

The defendant’s business was successful. In 1983 the property at Western Keys in Westmoorings was purchased as a home for the parties and Devon who at the time was the only child of the relationship. The property was vested in the name of the defendant. Thereafter the defendant acquired a parcel of land at Coastal Drive in Westmoorings and in or about 1993 a house was built on this parcel of land. From Christmas of 1993 to the end of the relationship the Coastal Drive property was the family home. This property too was vested in the name of the defendant (end of page 4) Apart from these properties the defendant acquired a half interest in the property in St. James.

There were also vehicles that were acquired. At one point not long before the plaintiff left the Coastal Drive property in October, 2000 there were four vehicles. One was sold shortly before the plaintiff left the property and when he left the plaintiff retained the sole use and custody of one of the vehicles. The other two remained in the possession of the defendant. It is also not in dispute that the plaintiff left the Coastal Drive property on October 20th 2000 following the obtaining by the defendant of a Protection Order under the Domestic Violence Act. The defendant obtained the order after an incident in which the plaintiff threw an iron ball at her. It appears that the defendant had reported to the police that the plaintiff had stolen jewellery from her and had brought police officers to the premises. After a search of the defendant’s workshop at the Coastline Drive Property the police found the jewellery which belonged to the defendant. This enraged the plaintiff and he threw the iron ball at the defendant. The Protection Order was obtained on October 19th 2000 and on October 20th 2000 the plaintiff was escorted to the Coastal Drive property by police officers and removed his belongings. The plaintiff subsequently began a relationship with one Geneva Henry in or around May 2001 and now resides with her at her home in Belmont.

The plaintiff’s application is made under Section 6 of the Cohabitational Relationships Act, 1998. According to the long title of the Act it is an act to confer on cohabitants (end of page 5) rights and obligations, to give the courts jurisdiction to make orders with respect to interest and property and maintenance, to make provision for the enforcement of agreements and for matters incidental thereto. Before I deal with the substantive application I shall refer to a point taken by the defendant in the nature of a preliminary objection.

Section 2(2) of the Act provides that the Act does not apply to or in respect of a cohabitational relationship which ceased before the coming into force of the act. Counsel for the defendant submitted that the relationship ended in July or August 1996 more than two years before the coming into force of the Act on November 23rd, 1998. In those circumstances it was submitted that the Act does not apply to this relationship and the application should be dismissed.

Counsel for the plaintiff answered the objection on two bases. One dealing with an interpretation of section 2(2) and the other dealing with the evidence.

So far as the interpretation point is concerned Counsel for the defendant argued that in the light of the definition of “cohabitational relationship” in the Act such a relationship cannot cease. Accordingly the plaintiff cannot be outside the Act.

The Act defines a cohabitational relationship to mean the relationship between cohabitants who not being married to each other are living or have lived together as (end of page 6) husband and wife on a bona fide domestic basis. A “cohabitant” is defined in the Act to mean:

 

(a)  in relation to a man, a woman who is living or has lived with a man as his wife in a cohabitation relationship; and:

(b)  in relation to a woman, a man who is living with or has lived with a woman as her husband in a cohabitational relationship.

 

Counsel submitted that in view of those definitions a cohabitational relationship cannot cease. It is a fact that arises once a couple has lived together as husband and wife. Although the actual cohabitation may cease the relationship always exists.

In my judgment Counsel’s submission is unmeritorious. A cohabitational relationship under the Act refers to the relationship between a man and woman who are living or have lived together as husband and wife. There is nothing in the definition that can lead to the conclusion that the relationship cannot end. The Act applies to subsisting relationships as well as relationships which have ended. At the time of making an application under the Act the relationship may be subsisting or as I would think what would be the position in the majority of cases, the relationship may have ended. On the plain and literal meaning of Section 2(2), the Act does not apply to or in respect of a relationship which ended before the coming into force of the Act. (end of page 7)

On the evidential basis counsel for the defendant submitted that I should find on the evidence that the relationship was not at an end in July or August 1996. The defendant deposes to this in an affidavit sworn on April 26th 2002. She stated that the breakdown in the relationship occurred because of the plaintiff’s relationship with one Alicia. However in an earlier affidavit the defendant stated that the relationship came to an end in April 1997. She did not say in that affidavit that the relationship came to an end because of the plaintiffs relationship with Alicia but that it came to an end when the plaintiff went to live in Florida. The difference in the two positions is significant and makes the defendant’s evidence on this issue unreliable. I am not prepared to accept in this circumstances that the relationship ended in July or August 1996.

Counsel for the plaintiff however also advanced the position that if the court did not find the relationship ended in 1996 then the court should find that the relationship ended in April, 1997. If the relationship ended in April, 1997 it was submitted that the plaintiff’s application offends against section 8(1) of the Act which provides that an application of the type before the court shall be made within two years after the day on which the parties ceased to live together as husband and wife on a bona fide domestic basis. Counsel submitted that although under section 8(2) the court may grant leave to make the application notwithstanding that it was made after the expiration of two years, there is before this Court no application for such leave and consequently if the relationship ended in 1997 the application in this matter is out of time and should be dismissed. (end of page 8)

Under the Act as I mentioned, a cohabitational relationship is defined as a relationship between a man and a woman who are not married to each other but nevertheless who are living or have lived together as husband and wife on a bona fide domestic basis. The fact of the matter is that there is no criteria spelt out in the Act to determine what is living together as husband and wife on a bona fide domestic basis.

The Act has some similarity to the Property (Relationships) Act, 1984 of New South Wales. In that act under section 4(2) it is provided as follows:

In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:

 

(a)  the duration of the relationship,

(b)  the nature and extent of common residence,

(c)   whether or not a sexual relationship exists,

(d)  the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,

(e)  the ownership, use and acquisition of property,

(f)   the degree of mutual commitment to a shared life,

(g)  the care and support of children,

(h)  the performance of household duties,

(i)    the reputation and public aspects of the relationship. (end of page 9)

 

Section 4(3) of that Act provides that no finding in respect of any of the matters mentioned at (a) to (i) or in respect of any combination of them is to be regarded as necessary for the existence of a de facto relationship and a court in determining whether such a relationship exists is entitled to have regard to such matters, and to such attach weight to any matter, as may seem appropriate to the Court in the circumstances of the case.

There is no such or similar provision in the Act. No doubt in considering the question whether a cohabitational relationship exists the court will bring its own practical knowledge and experiences to bear but I think the approach in section 4(3) of the New South Wales Act against the circumstances of the relationship including the factors identified in section 4(2) are of practical utility in determining whether a cohabitational relationship exists.

In the green paper Law Commission (July 3rd 1996) Cohabitational Relationships Towards a Reform of the Law (the green paper) which put forward proposals which led to the enactment of the Act it is noted at paragraph 2.5 that:

 

Our form of common-law unions are usually characterized by one or all of the following i.e., sexual intimacy, emotional support, dependent children and the holding of property or the pooling of resources. Many are long-standing and the same issues of dependence and maintenance arise when these relationships ends either by death or separation. (end of page 10)

 

These characteristics are mirrored in some of the matters specifically mentioned in section 4(2) of the New South Wales Act.

Counsel for the defendant submitted that for the relationship to have come to an end it is sufficient if one party determines not to live together with the other and in that sense keeps apart. This was the way it was put in Howland v. Ellis [2001] N.S.W.C.A. 45.

That was a case where the parties were living apart in that one of the parties was imprisoned. In such case it may be sufficient to ask if one party has determined not to live with the other and in that sense keeps apart. However where the parties are living together under the same roof it is of far more utility to the inquiry to take the approach as mentioned above.

While I do not accept that the relationship ended in July or August of 1996 as the defendant contends there appears however to have been some difficulty in the relationship not long thereafter. The plaintiff admits that in 1997 for two to three weeks he spent nights at his sister’s home. This he said is because the defendant had began staying out late and not saying anything to him when she returned home. To shock the defendant into recognizing the seriousness of her behaviour the plaintiff stated that he began sleeping at his sister’s place. The plaintiff however said that after about three weeks he and the defendant worked out their differences and he returned home. This is denied by the defendant. According to the defendant she allowed the plaintiff back into the home in 1997 but did not resume the relationship. She contends that she did not sleep (end of page 11) with the plaintiff who thereafter slept in the guest bedroom. The defendant states that the plaintiff was allowed back into the home only for the sake of the children.

The evidence of Ms. Kareina Robinson supports the defendant’s claim that the plaintiff slept in the guest bedroom. According to her she worked as a helper at the family home in 1998. For a period during the time she worked the defendant was away but for the entire period she worked at the home the plaintiff slept in the guest bedroom. I therefore accept the defendant’s evidence and I do find that from 1997 the plaintiff and the defendant ceased to have a sexual relationship.

Quite apart from this there are other matters that reflected that the relationship was not what it should be. It is not in dispute that the defendant left the jurisdiction in 1998 for surgery and stayed away for a period of several months. When she did return she did not return directly to the family home at the Coastal Drive property but went there the day after her arrival in Trinidad. According to the plaintiff he left the jurisdiction and lived in the U.S.A. for two months from August to October 1999. While there he worked. This seems to be an extraordinary development as it amounts to the plaintiff leaving a viable business in which he claims he was a partner to work in the U.S.A. The plaintiff stated that he had arranged with the defendant before he left for the U.S.A. to join him in Miami in October 1999 but the defendant never did. The defendant denied that she had agreed with the plaintiff to join him in Miami but whether that is so or not the fact is that the plaintiff could leave the family home and go to the U.S.A. for two months without the plaintiff who did not care to join him. This points to a weakened relationship between (end of page 12) the parties. I however do not think that a rejection of the normal physical relationship coupled with an absence of affection for each other are in themselves necessarily sufficient to come to the conclusion that the relationship had ended. All the circumstances of the relationship must be taken into account which include the matters specifically outlined in section 4(2) of the New South Wales Act.

The parties resided together under the same roof and as I mentioned save for brief periods their relationship subsisted from 1978. Notwithstanding the deterioration in the relationship during 1997 the defendant continued to live in the family home. There his meals were prepared and his laundry done along with the rest of the family by the hired help. Generally the household bills were paid by the defendant. There is no indication that there is any change in this relationship from 1997. The only period of time that the plaintiff is able to produce any evidence that he paid household expenses including school fees is during the period when the defendant left the jurisdiction for surgery but it is significant that he did pay these expenses.

According to the defendant he had a boat which he used for family outings. The boat was sold in 1999 so up to that time there is still the concept of family outings. The boat was sold for $64,000.00. The defendant says that the plaintiff used the money from the sale of the boat or, inter alia, a two month vacation and left the family behind. Counsel for the plaintiff submitted that the effect of that paragraph is that there is an acceptance of one family unit and that the defendant is complaining that the plaintiff disregarded the (end of page 13) feelings of the family and went on a vacation by himself. I think counsel’s submission has merit in it.

The defendant built a work shed onto the family home for the purpose of carrying on from there a metal fabricating business. Although the defendant did not favour the construction of the shed no steps were taken to remove the structure even though it constituted a breach of the terms of the defendant’s lease. It seems clear from that the plaintiff was able to use the Coastal Drive property as his own. When the plaintiff left the Coastal Drive property in October 2000 he left with a vehicle that was registered in both the plaintiff’s and the defendant’s name. Before that a vehicle registered in the defendant’s name was sold and the plaintiff received part of the proceeds.

It is also instructive to note that according to the defendant when she allowed the plaintiff back into the family home in 1997 it was, she said, for the sake of the children. It seems from that that the plaintiff played a role in the care and support of the children which continued from the defendant’s view point up to 1997.

In ‘the circumstances while from 1997 I accept that the parties ceased to have a sexual relationship and the relationship deteriorated, I am not prepared to say that it ceased. I therefore find that the cohabitational relationship between the parties continued up to October 2000 when the plaintiff left the family home as a result of the protection order obtained by the defendant. Accordingly, the application does not fall afoul of section (end of page 14) 8(1) of the Act as it was being made within a year of the day the parties ceased to live as husband and wife on a bona fide domestic basis.

I turn now to the substantive application. The plaintiff’s application is essentially for an adjustment order. He seeks a transfer of an interest in the properties. The application is made under section 6(1) of the Act. On an application under the section the court shall have regard to the financial and other contributions of the cohabitants. Section 10(l) of the Act provides as follows:

 

10.(1) On an application for an adjustment order, the High Court may make any such order as is just and equitable, having regard to-

 

(a)  the financial contributions made directly or indirectly by or on behalf of the cohabitants to the acquisition or improvement of the property and the financial resources of the partners; and

(b)  any other contributions, including any contribution made in the capacity of homemaker or parent, made by either of the cohabitants to the welfare of the family constituted by them;

(c)   the right, title, interest or claim of a legal spouse in the property.

 

In exercising its powers under the Act the court may make any one of several orders including an order for the transfer of the property or an order for the payment of a lump sum (see section 21(1)(a) and (d)). (end of page 15)

Counsel for the plaintiff submitted that section 10(1) ought to be construed generously. In considering what is just an equitable, the contributions under section 10(1) and (b) are not the only things to be taken into account. The court may consider other appropriate matters such as the needs of the parties, the standard of living and the nature of the relationship. Counsel submitted that while the legislation is not meant to equate the marital relationship to the cohabitational relationship, a construction of the statute that does not prevent some at least of the criteria habitually used in resolving marital disputes from being used to resolve a cohabitational dispute in an appropriate factual situation is to be preferred.

I think that it must be recognized that it was not the intention of Parliament to accord to cohabitants the same status as a married couple. In the green paper it was specifically recommended at (paragraph 5.4) that:

On the granting of recognition to cohabitational relationships it is recommended that: The law of Trinidad and Tobago should not accord to cohabitants a status akin to marriage but should be reformed in certain specific areas only so as to avoid injustice and situations of hardships.

This recommendation, it seems clear from the Act, was accepted by Parliament and there is nothing that one can point to in the Act that equates a cohabitational relationship to that (end of page 16) of marriage. That being so, great caution should be exercised before importing into a cohabitational relationship context any matter which would be of importance in an inquiry in a marital context such as the needs of the parties or the standard of living enjoyed during the relationship.

The need for caution is emphasized when it is noted that in the green paper despite drawing specific reference to certain matters which the court takes into account under the Matrimonial Proceedings and Property Act Chap. 45:51 such as the financial needs, obligations and responsibilities of each party it was only recommended in the case of a cohabitational relationship that the court should have regard to financial and other contributions of the parties. This recommendation seems to have found favour in section 10 of the Act which mentions only the question of contributions and the right, title, interest or claim of a legal spouse in the property in dispute.

Section 20(1) of The New South Wales Property (Relationships) Act, 1984 is similar to section 10 of the Act. It provides as follows:

 

20(1) On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests of the parties in the property as to it seems just and equitable having regard to: (end of page 17)

 

(a)  the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or to the financial resources of the parties or either of them, and

(b)  the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties and one or more of the following, namely:

 

(i)   a child of the parties,

(ii)   a child accepted by the parties or either of them into the household of parties, whether or not the child is a child of either of the parties.

 

The section has been considered in a number of cases in New South Wales. Some of the cases have been referred to me by counsel during the course of argument. In Matheson v. Ellis [2001] N.S.W.C. 931 the court expressed the opinion that it should have regard only to the contributions set forth in section 20(1). In paragraph 69 of the judgment of the court it is there stated: (end of page 18)

 

In exercising the foregoing discretion under section 20(1) of the Property (Relationships) Act, It seems to me that, consonantly with the foregoing decisions of the Court of Appeal, the present financial and material circumstances of the parties, and, in particular, the present needs of the plaintiff, should not be taken into consideration. The court should not be diverted from the clear words of the statute. In exercising its discretion to “make such order adjusting the interests of the parties in the property as to it seems just and equitable” the court must have regard to the contributions of the nature then set forth in paragraphs (a) and (b) of the subsection. As I understand the foregoing decisions of the Court of Appeal, it is not legitimate for the court to have regard to present or future needs of the parties, but to have regard only to contributions of the nature set forth in the subsection.

 

On appeal to the Court of Appeal of New South Wales no adverse comment was made on the quoted paragraph (see Wallis v. Matheson [2002] N.S.W.C.A. 350).

However in other cases regard was hard to matters other than the contributions outlined in section 20. In Mc Donald v. Stelzer [2000] N.S.W.C.A. 302, Sheller, J.A. appears to have accepted that other factors were relevant such as whether the contributions of the plaintiff have been sufficiently compensated. At paragraph 23 he quoted with approval, the following passage from the joint judgment of Gleeson, C.J. and Mc Lelland, C.J. in Evans v. Marmont (1997) 42 N.S.W.L.R. 70 at 75: (end of page 19) It would be unrealistic to attempt to evaluate contributions of the kinds referred to in par (a) and par (b) for the purpose of determining what is just and equitable having regard to those contributions, in isolation from the nature and incidents of the relationship as a whole….

And added: As their Honours indicated at 79-80, paras. (a) and (b) remain the focal points by reference to which a discretionary judgment as to what seems just and equitable must be made.

Priestly, J.A. in Me Donald v. Stelzer, supra, at para. 35 quoted with approval the following passages in Evans v. Marmont: In Evans v. Marmont (1997) 42 N.S.W.L.R. 70, Gleeson, C.J. and Me Lelland, C.J. in Eq referred with approval to some observations made by Hodgson, J. at first instance in Dwyer v. Kaljo (1987) 11 Fam LR 785. They said:

 

“The following aspects of the approach adopted by Hodgson, J. are sufficient. He began by repeating four questions formulated by Powell, J. in earlier cases. Those questions set out, in a convenient sequence, certain matters which arise for consideration under s.20. There is nothing in the precise formulation of the questions, or in the sequence, which is, or was seen to be, rigidly binding. Having (end of page 20) done that, Hodgson, J. went on to refer to some matters more likely to be contentious.

First, he repeated and accepted what had been said in a previous case by Young, J. (Wilcock v. Sain (1986) 11 Fam LR 302), to the effect that the factors referred to in par (a) and par (b) of s.20(1) are fundamental factors influencing the judgment of the court. Hodgson, J. then said (at 793):

 

…I also agree with Young, J. that this is not the only factor which can be taken into account. In my view, if one considers the plaintiff’s contributions and nothing else, this cannot conceivably lead to any view on what is just and equitable in the circumstances. However, it seems to me that the other factors can have no independent bearing on, what is just and equitable. Their relevance is only by reason of such relevance as they may have to the question: what is just and equitable having regard to the plaintiff’s contributions?

In my view, some other factors will be relevant in this way in all cases. One such factor arises from the question whether the contributions of the plaintiff have been sufficiently compensated. The relevance of this question is confirmed by the terms of s 17 of the Act. This in turn requires the court to reach some view of the value of the contributions of the plaintiff, and some view of the value of what the plaintiff has received in return.

In most cases, I think his financial circumstances of the parties will be relevant. Certainly, it is necessary for the court to ascertain what the (end of page 21) property of the parties comprises at the time of the hearing, because it is to this that any adjustments of interest have to be made. Further, I think that in most cases the needs and means of the parties will have general relevance, as subsidiary factors, to the question of what is just and equitable having regard to the plaintiff’s contributions. However, as indicated earlier, I accept that the needs and means of the parties has no relevance except via its relevance to this question: in particular, the court cannot say that because the defendant has $11 million, and the plaintiff has something less than $50,000, for that reason it is just and equitable to make an adjustment.

Other circumstances which may be relevant include such matters as the length of the relationship, any promise or expectations of marriage, and also I think opportunities lost by the plaintiff by reason of the plaintiff’s contributions. This is by no means intended to be exhaustive. I do not think any limit can be set on what circumstances may be relevant, remembering always that the relevance must be to the question, what is just and equitable having regard to the plaintiff’s contributions.’

In general, we agree with those observations. It would be unrealistic to attempt to evaluate contributions of the kinds referred to in par (a) and par (b) for the purpose of determining what is just and equitable having regard to those contributions, in isolation from the nature and incidents of the relationship as a whole, relevant aspects of which may well include factors of the kinds mentioned by Hodgson, J.” (at 74-5) (end of page 22)

 

Jones v. Grech (2001) N.S.W.C.A. 208 is also authority for the proposition that factors other than the contributions outlined in section 20 of the New South Wales legislation ought to be taken into account. In this case Davies, A.J.A. stated (at para. 29):

 

In general, an inquiry under section 20 requires examination, first, of the identity and the value of the respective assets of the parties, secondly, of the contributions of the type contemplated by paras. (a) and (b) made by each partner, and, lastly whether in all the circumstances of the case the contributions have already been sufficiently recognized and compensated for and if not, whether it is just and equitable to make an order so that the contributions of one or the other of the parties was sufficiently recognized and compensated for.

 

What is clear from the authorities referred to above is that even where factors other than the contributions of the parties are taken into consideration the contributions of the parties are considered as fundamental. They are the focal points by reference to which the court in the exercise of its discretion may make an order under the Act. But to disregard the context in which the contributions are made, may lead the court into misconstruing the significance of the contributions. It is therefore necessary for the court to have regard to the context in which the contributions were made, or, as is said the contributions should not be considered in isolation from the nature and incidents of the relationship as a whole. (end of page 23)

One factor which arises in the consideration of the context as a whole in the New South Wales cases is whether the contributions made by the plaintiff have been compensated. This seems to arise by virtue of the construction of section 17 of the New South Wales Act. There is no similar provision in the Act but it seems to me that it is a consideration which should be taken into account. In my judgment such a factor lends itself naturally in considering what is just and equitable having regard to the plaintiffs contributions. As regards the standard of living enjoyed by the parties I can see no room for this factor when determining what is just and equitable having regard to the contributions of the plaintiff. With respect to the needs of the parties they can have at best only a general relevance and can have no relevance except by way of its relevance to the question what is just and equitable having regard to plaintiffs contributions.

I turn now to consider the plaintiff’s contributions. As I indicated earlier there is much dispute on the evidence as to the nature and quality of the contributions made by the plaintiff. According to the plaintiff from the time he started to live with the defendant and while she was a street trader he assisted her in her business. According to the plaintiff even then the defendant had to travel out of the country to purchase merchandise to sell in the business and when she was out of the jurisdiction he operated her clothes stall and handled all monies from sales and collections. The defendant denies this. According to her when as a street trader she travelled her father and brothers assisted her. It was from December 1979 when the plaintiff left his job at Geddes Grant that he began to help with the business and she paid him a weekly salary of $400.00. Before that he helped with sales on Saturdays and was paid. (end of page 24)

It is not in dispute that the plaintiff was employed with Geddes Grant up to December 1979. He was employed there full time. It seems to me more likely that as the defendant alleges that any assistance she received from the plaintiff before he left Geddes Grant would have been on Saturdays. I think it more probable that prior to that when the defendant was out of the jurisdiction she would have obtained the assistance of her father who was also a street trader, and her brothers. I therefore do not accept that prior to the plaintiff leaving employment with Geddes Grant he assisted with the business other than on Saturdays. I will return to the conflict in the evidence as to whether he was paid for his services later in this judgment.

The plaintiff also alleges that around the time he left Geddes Grant he gave to the defendant the sum of $5000.00 as his investment in their joint business enterprise. The defendant denies that any such sum was paid. According to the plaintiff in his affidavit at that time he had the sum of $5000.00. When however it was suggested to him that given his salary while at Geddes Grant and his commitments including his liability for the maintenance of two children he could not have had $5000.00 the plaintiff then said that he borrowed the money from his credit union. However no mention was made of this in his affidavit. I think the plaintiff only uttered this because he realized that Counsel’s suggestion that in his circumstances he could not have had the money was convincing. In the circumstance I find the plaintiff’s evidence unreliable and I prefer the defendant’s evidence that the plaintiff did not contribute the sum of $5000.00 as he alleges. (end of page 25)

These are two instances where the plaintiff sought to exaggerate his role in the business and in the affairs of the parties. Other instances could be cited which impact on the credit of the plaintiff. For example in 1978 according to the plaintiff when he became involved in an intimate relationship with the defendant they rented an apartment and moved in and paid the rent from their joint savings. In cross-examination the plaintiff conceded that the defendant was already living in the rented apartment when the relationship began. Here too I prefer the evidence that it was the defendant who paid the rent without any contribution from the plaintiff.

When the booths in the People’s Mall were acquired the plaintiff stated that he did the work himself and added an upper story to one of the booths. The defendant on the other hand indicated that this work was done by a person named Kumba. The plaintiff denied that Kumba had any involvement in construction work but might have done some repair work. In cross-examination however, the plaintiff conceded that Kumba did do work.

In his affidavit evidence the plaintiff states that “Lipstick” the name given to the defendant’s business at Colsort Mall and at Long Circular Mall was his suggestion. In cross-examination however he made no such case. In fact he mentioned discussions surrounding the business name “Jah” or “Jazz.” It was also deposed by the plaintiff that it was his suggestion to register the business name. In cross-examination however the plaintiff conceded it was the suggestion of Ms. Brizan who was employed by the defendant. (end of page 26)

The plaintiff in his affidavit of November 16th 2001 stated with reference to his contribution to the construction of the house on the Coastal Drive property that:

I worked with an architect Alvin Dorsett on the design for our home and with the construction firm Affordable Homes throughout the period of construction to ensure the job was done right. I designed and helped build all the cupboards and wrought iron accents for the house….

In cross examination the plaintiff admitted, as the defendant stated, that the plans were not completed by Alvin Dorsett but by one Sharon Mohan. In fact according to the defendant, Dorsett’s plans were a disaster and she fired him. The plaintiff however makes no mention of working with anyone else on the design of the house and his allegation that he worked on the design of the house is in my judgment a fabrication. The plaintiff also indicated in cross-examination that the cupboards were designed by Mr. Grell and the wrought iron accents for the home were purchased by the defendant in New York. The plaintiff accepted counsel’s suggestion that if one wanted to know his contributions to the construction of the Coastal Drive Property one could refer to the affidavit to ascertain them. But his contributions are essentially contained in paragraph 20 and after the defendant’s admissions there is very little left of his contributions to the Coastal Drive Property.

The plaintiff annexed to his affidavit of April 3rd 2002 a bundle of cheques marked AD7 which he says were copies of cheques issued by him for payment for household expenses (end of page 27) of the family for the period August 28th 1998 to January 20th 1999. The plaintiff was there advancing the case that all money saved by him was used for the benefit of the home and family. However on perusal of the cheques almost half of them are made payable to Bhagwansingh’s Hardware Limited which the plaintiff accepted in cross-examination was for the -purchase of materials used by him in connection with his metal fabricating business. The sum total of the other cheques amounted to approximately $3000.00.

These specific matters in my judgment affect the reliability of the plaintiff’s evidence generally. The unreliability of the plaintiff’s evidence is nowhere less evident than where it is claimed that he and the defendant were partners in business.

I have already alluded to the plaintiffs claim that he gave to the defendant $5000.00 as an investment in the business. Shortly after this allegedly happened the plaintiff signed as a witness to a document in 1981 attesting to the purchase of two booths at the People’s Mall. The owner in the document is expressed to be the defendant. No explanation was advanced by the plaintiff why within a short space of time after allegedly paying the $5000.00 that the booths, if he and the plaintiff were partners, were purchased in the name of the defendant only.

For a partner it is amazing how little the plaintiff knew of the many business transactions in which the defendant was involved. He was not sure of the name of the person from whom the defendant purchased a booth in 1981 and this despite having witnessed a (end of page 28) document attesting to the purchase transaction. He could not say what was the price paid for it . He also could not say what sum Kumba was paid for the work he did on the booths. He did not know the name of the person from whom the Colsort Mall locations were purchased or how much was paid for the repairs to them. The same could be said of the Long Circular Mall location. Not only was the plaintiff unaware of the details of the business transactions but he was also ignorant of the details relating to the acquisition of certain assets. He was unaware of the details concerning the purchase of the Coastal Drive property. Despite what he claims to be his investment in the St. James property it is passing strange that the property is vested in the name of the defendant and someone else. Such an occurrence calls out for explanation but none was forthcoming from the plaintiff.

In 1996 the plaintiff said he withdrew from the business, following allegations which were made against him that he was stealing money from the business. The plaintiff in his affidavit evidence stated that although he withdrew from the business he continued to keep the books and oversee the deposits and payments of bills. He also stated that he continued to work in the Colsort Mall. In cross-examination however he did not say this and I accept that he had withdrawn completely from the business so much so that he saw the need to start his own fabricating business and went to work for a period in the U.S.A. Since his withdrawl from the business there was no suggestion by the plaintiff that he received any profits from it or that he complained of not doing so. This is all very improbable behaviour for someone who considers himself to be a partner. (end of page 29)

I think it significant that the plaintiff could not produce any documentary evidence to suggest that he was a partner. Indeed not only did the plaintiff not produce such evidence but the only document which touched on his status in the business was produced by the defendant and this pointed to the conclusion that the plaintiff was an employee. What the defendant produced was a diary in which the plaintiff accepted that entries were made of salaries paid to the employees of the business. The plaintiff’s name appeared in the diary showing that monies were paid to him. The plaintiff sought to explain the entries by saying that if he needed money for something it would be recorded there. But this was inconsistent with a year end bonus which was also reflected in the diary as being paid to the plaintiff. It is of significance as counsel for the defendant indicated, that the only name in the business which did not appear in diary as receiving a salary was that of the defendant.

The defendant did admit that she did not pay NIS for the plaintiff and that income tax was not deducted from the plaintiff’s salary. These matters were left to the plaintiff. I however consider this as bending or breaking of the rules for the plaintiff rather than any indication of a partnership which I find impossible to accept against the totality of the evidence.

In the circumstances I prefer the evidence of the defendant. Save where I specifically find to the contrary where there is a conflict between the evidence of the plaintiff and the defendant I accept the evidence of the defendant. The plaintiff therefore was not a business partner with the defendant. He made no financial contributions to the business. (end of page 30)

I accept the defendant’s evidence that the $62,000.00 he paid as a deposit for the acquisition on the St. James property was but a repayment of the defendant’s money.

In submitting that I should not accept the defendant’s evidence counsel for the plaintiff drew reference to the defendant’s evidence that the plaintiff was first accused of siphoning money from the business in 1991 yet he was allowed to continue in the business until he voluntarily withdrew in 1996. It was, counsel suggested, not likely that the plaintiff would have been allowed to continue in the business in the face of the 1991 accusation. However the plaintiff was not a stranger to the defendant. They were a couple and the plaintiff was the father of at least two of the defendant’s children. It is not a straightforward thing to say that that in all the circumstances the defendant would not have allowed the plaintiff to continue in the business. I am not prepared on that basis to reject the defendant’s evidence. I also accept the defendant’s evidence that she gave the plaintiff money to enable him to write the cheques which he exhibits as AD6 to his affidavit of April 3rd 2002.

I do not accept that the plaintiff paid rent for the apartment the defendant rented in New York or while on a trip in New York he purchased stock for the business and items for the family home. I also do not accept that the plaintiff while in the U.S.A. loaned the defendant money to purchase stock for the business.

It is not in dispute that the plaintiff worked in the business but he was an employee. He was paid for his services. He was also paid for his services in the work he did in the (end of page 31) establishment of the businesses in the People’s Mall. I do not accept that the plaintiff did work on the Colsort Mall or the Long Circular Mall locations. When the plaintiff withdrew from the business he played no further part in it. His involvement in the business ceased from 1996.

It is not in dispute that the defendant for the purpose of the business needed to travel to source merchandize. She was out of the country regularly. During this time the plaintiff assumed responsibility for the children. According to the defendant if the plaintiff was not available she would not travel. This is a recognition that the plaintiff was responsible for the care of the children. It seems to me to be no dispute that he cared for the children like a father would. When they were young he changed diapers and fed them. As they got older he dropped them to school and took them on outings. Towards the end of the relationship he may not have taken the same kind of interest in the children. The plaintiff stated in his affidavit evidence that since he had left the home Davier had dropped out of school. Davier was however not at school before the plaintiff left home. However there is no denying that the plaintiff did care for the children especially at times when the defendant was out of the jurisdiction. Indeed this seems to have enabled the defendant to travel abroad which was vital to the business. By his contributions as a parent he contributed to the welfare of the family. The question is what is just and equitable having regard to his contributions.

I do not regard this as a case where the plaintiff was totally committed as a parent. The evidence of the defendant that if the plaintiff was not available she would not travel (end of page 32) suggests also that there would be occasions when he would not be there for the defendant. If he were fully committed the question of his availability would not arise. This lends support to the defendant’s evidence that the plaintiff at times would be away for days. There were also occasions when according to the defendant she needed to arrange for a driver because the plaintiff was not around. According to the defendant she did not wish to leave the children fully in the care of the plaintiff.

It cannot be doubted that it was through the skill of the defendant that the properties and assets were acquired. It was she who had an eye for fashion and was able to develop the business from a street trading operation to locations in the country’s malls. It is significant to note that since the defendant has left the Coastal Drive property he has not attempted to set up any business similar to that of the defendant’s. His attempt at continuing the fabricating business seems to have ran aground when his vehicle was stolen. While the plaintiff worked in the defendant’s business he was remunerated. The defendant paid the household expenses. The plaintiff was only in a position to show that he paid some household expenses when the defendant was away for an extended period for medical reasons. Essentially the plaintiff was allowed to use his money for his own benefit. He also benefited or was compensated in other ways. He received part proceeds of the sale of a booth and from the sale of a vehicle. He also had the benefit of a vehicle when he left the Coastal Drive property. Of course while the defendant was in the jurisdiction she also looked after the children. It is not that she abandoned the maternal role. As evidence of this I need only point to the plaintiff’s acceptance that before the defendant went away that in the case of at least one of the children who was taken to Ms. (end of page 33) Fitzworm that the defendant arranged his bibs and some of the bibs had days written on them to help guide the plaintiff into how to, organize a child. There was also always hired help to assist in the care of the children both on and off the premises. All of which were paid for by the defendant. The children have remained with the defendant and the financial burden of educating the two eldest children at tertiary level would probably fall on her. So too it seems would the burden of dealing with the problems of the youngest child.

Counsel for the plaintiff submitted that he is entitled to 50% of the assets. However it is clear from what I have said above that the contributions of the plaintiff cannot be given the same weight as the contributions of the defendant. Indeed when viewed in the context in which they were made they should be given far less weight than the contributions of the defendant. In the circumstances I think that having regard to the plaintiff’s contributions what is just and equitable is that he should receive 10% of the value of the assets referred to in the plaintiff’s affidavit of April 9, 2003 the value of which the plaintiff has estimated less the debts and liabilities deposed to by the defendant. The plaintiff has asked for a transfer of part of the plaintiff’s interest in the property but I do not think that will benefit either party and it would be best in this case to make a lump sum order.

As regards the value of the assets as I mentioned earlier there is no formal valuation before the court. What is before the court is the plaintiff’s estimate. This estimate was not rejected by the defendant and I purpose to be guided by it. I recognize that there is (end of page 34) however a risk in doing this. The risk is evident from the fact that the plaintiff seems to have valued a vehicle that does not exists namely PAH 5201. But that is the only evidence on value before the court. With respect to the townhouse at 29 East Windsurf Road, Westmoorings however there was at the time the action was filed a subsisting agreement for the sale of the property -at $619,000.00. Since this indicates that is the price this property will fetch on the market I propose to use that value as the value of the property. The value of the properties including the vehicles is therefore approximately $3,974,000.00. As against this the defendant has deposed to debts and liabilities amounting to approximately $456,000.00. Of this sum it appears that the sum of $278,135.32 is secured by a mortgage over the properties.

In the circumstances I order that the defendant pay to the plaintiff by way of a lump sum the sum of $351,800.00.

The defendant shall also pay to the plaintiff one half of the costs of this action to be taxed.

 

Dated this 31st day of July, 2002.

 

  1. Mendonca

Judge (end of page 35)

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