Bishop v Chalerie

Citation:     TT 2007 HC 89

Title:           BISHOP v. CHALERIE

Country:     Trinidad and Tobago

Court:         High Court

Suit No.:     Family Court Action No.: 2108/2006

Judge(s):    Tam, J.

Date:          April 26, 2007

Subject:     Family law

Sub subject: Cohabitational relationship – Application for property adjustment under the Cohabitational Relationships Act of Trinidad and Tobago – Delay by applicant in filing application – Statutory period expired – No evidence adduced to show hardship – Application prevented by s. 8 of the Act.

 

TAM, J.:

1. Before the Court is Gail Bishop’s application filed on the 30/11/06 whereby she seeks:

(a) A property adjustment order.

(b) A lump sum payment order and

(c) An order for costs.

Her application is brought pursuant to the Cohabitational Relationship Act, 1988 which confers on cohabitants, inter alia, certain rights and obligations gives the Court the jurisdiction to make orders with respect to interests in property and makes provision for matters incidental thereafter. In support of her application Gail Bishop relies on 4 affidavits filed on the 30/11/06:

(1) Her Q/affidavit,

(2) Her affidavit of further evidence,

(3) An affidavit by Judy Nicholas, and

(4) An affidavit by Victoria Paul.

In opposition, the respondent, Lennox Charlerie, has filed 16 affidavits, 15 of which he filed on the 21.02.07 without the leave of the Court, so that the only affidavit he is at this time able to rely upon is his affidavit filed on the 09/02/07.

2. On the 02/03/07 the respondent filed a notice indicating that, pursuant to section 8(2) of the Act, he intended to contend that the applicant was precluded from proceeding with her application and that it should be dismissed. On the 13/03/07 the Court fixed the 17/04/07 to try this contention as a preliminary issue and heard arguments by the parties’ attorneys-at-law on that date. The sole issue to be decided at this time is whether section 8(2) precludes the applicant from proceeding with her application. Section 8 of the Act provides that –

(1) Where cohabitants have ceased to live together as husband and wife on a bona fide domestic basis, an application under Part III shall be made within two years after the day on which they so ceased to live; and

(2) The Court may grant leave to a cohabitant to apply for an order after the expiration of the period referred to in subsection (1), if the Court is satisfied that not to do so would cause undue hardship, to the cohabitant or a child of the cohabitational relationship.

3. There is no child from the present relationship and it is not in issue that the application of 30/11/06 was filed more than 2 years after the parties had ceased to live together as husband and wife on a bona fide domestic basis. According to the applicant’s affidavit evidence, the relationship ended in 2001, so that it is clear that the application was filed 3 years or more after the statutory 2-year period fixed by section 8(1). Counsel for the respondent has submitted that in order to obtain the Court’s leave to bring her application after the expiration of the 2-year period, the applicant must satisfy the Court that a refusal to grant such leave would cause undue hardship to the applicant, as set out in section 8(2). He further submitted that, as the applicant’s affidavit evidence had not disclosed that she would suffer undue hardship, or any hardship, she could not obtain the Court’s leave and therefore her application should be dismissed.
4. In support, counsel referred the Court to the definition of “undue hardship” set out in Words and Phrases Legally Defined, 3rd Ed., Vol. 2: D-J (1989), at pages 343-344, where, firstly, in the case of Liberian Shipping Corporation v King (A) & Sons Limited [1967] 1 All E.R. 934 CA, at page 938, Lord Denning, M.R., stated:

“It does appear that in the past the Courts have been inclined to emphasise the word ‘undue’, and to say that if a man does not read the contract and is a day or two late, it is a ‘hardship’; but it is not an ‘undue hardship’, because it is his own fault. I cannot accept this narrow interpretation of the statute. These time-limit clauses used to operate most unjustly. Claimants used to find their claims barred when, by some oversight, they were only a day or two late. In order to avoid that injustice, the legislature intervened so as to enable the Courts to extend the time whenever ‘in the circumstances of the case undue hardship would otherwise be caused’. ‘Undue’ there simply means excessive. It means greater hardship than the circumstances warrant. Even though a claimant has been at fault himself, it is an undue hardship on him if the consequences are out of proportion to his fault.”

In that case, the U.K. Court of Appeal had considered section 27 of the Arbitration Act, 1950, which provides that where the terms of an agreement to refer future disputes to arbitration provided for claims to be barred unless the proper steps are taken within a time fixed by the agreement, and a dispute arises, the High Court, if it was of opinion that in the circumstances of the case “undue hardship” would otherwise be caused, may extend the time for such period as it thinks proper.

5. Secondly, in the New Zealand case of Lower Hutt City v New Zealand Municipalities Co-operative Insurance Co. Ltd [1965] NZLR 24, Tompkins, J., stated at page 28 that:

“While judges have refrained from attempting to define what undue hardship is, no doubt because there are infinite varieties of circumstances which might constitute undue hardship, it seems clear that the following are relevant matters in considering whether there is undue hardship or not:

(a) The mere fact that the claim is barred cannot be held to be an undue hardship;

(b) The Court will not hold circumstances to constitute an undue hardship where the delay has been due to inadvertence, or to an applicant not making himself aware of the terms of his contract, or to his negligently letting the time go by.

(c) The Court will hold there is undue hardship where there has been a misunderstanding, or confusion, which has been caused, or contributed to, by the other side.

(d) The Court will hold there is undue hardship where the failure to give notice in time was due to circumstances over which the applicant had no control, or other very special circumstances explaining the delay.

(e) The Court would hold there to be undue hardship if the refusal of an extension would involve an applicant in actual financial difficulties, or perhaps bankruptcy.”

In that case, Tompkins, J., had considered section 18(6) of the New Zealand Arbitration Amendment Act (1938) that authorizes the Court to grant an extension of time within which to take some step in an arbitration if “undue hardship” would be caused by the refusal of such extension.

6. It can be seen that, in both instances, the UK Court of Appeal and the New Zealand Court were considering situations similar to the present situation. The 5 points set out by Tompkins, J., are a useful guide in the determination of the issue I have before me. Points (a) and (b) are of no assistance to the applicant. As it stands, the applicant’s claim is barred by section 8(1) and this by itself cannot be held to amount to an undue hardship. Further, in all of the affidavit evidence before the Court, the applicant has offered no reason or explanation for her failure to file her application within the stipulated 2-year period and for her filing that application more than 3 years after that period had expired. Her affidavit evidence is completely silent on this aspect. In other words more than 5 years had elapsed since the separation of the parties and the breakup of their cohabitational relationship, yet no reason or explanation has been placed before the Court to enable the Court to exercise its discretion to afford leave to the applicant to pursue the application. There is also no evidence of any misunderstanding or confusion caused, or contributed to, by the respondent, so that point (c) as set out by Tompkins, J., does not arise. The evidence also fails to show that the applicant can call on the matters at point (d). There is no evidence that the circumstances giving rise to the applicant’s failure to file within the statutory period were circumstances beyond her control and no other very special circumstances have been shown to explain her delay. Finally, there is no evidence to show that a refusal of an extension of time would result in actual financial difficulties, or perhaps bankruptcy, of the applicant, so that the applicant cannot rely on point (e). In fact, the evidence before the Court shows that the applicant has held, and continues to hold, a secure job with earnings that enable her to meet all of her financial commitments. She is also the owner of the house that she lives in and has given its value as $100,000.00. There are no encumbrances. She possesses modest savings in 2 bank accounts. She has investments in the Unit Trust Corporation but has failed to disclose the details to the Court.
7. I am aware that the 5 points set out by Tompkins, J., are not exhaustive and that they are merely a guide. Every case must fall to be decided on its particular facts. In the instant case, however, there are no special or extraordinary circumstances that the applicant can point to as explaining her delay and there is no evidence of any hardship, undue or otherwise, that she is likely to suffer if the Court refuses to grant leave to pursue her application.
8. Counsel for the applicant has submitted that the Court cannot at this stage determine whether the applicant will suffer undue hardship without embarking upon the substantive application and making findings of facts. According to her argument, the Court should first proceed to hear the full substantive application, permitting cross-examination of the parties, and determining the facts, after which the Court can then decide whether to grant leave to the applicant to pursue her application and extend the time for doing so accordingly. With all due respect to counsel, I find this argument to be flawed. It is putting the cart before the horse. In order to pursue her application, the statutory period having expired, the applicant must show that a refusal of the Court to grant her leave to do so would cause her undue hardship. The onus is therefore on her from the onset to place evidence before the Court from which the Court can draw conclusions favourable to her and to find that she would suffer undue hardship. This she has simply failed to do.
9. The applicant was obviously aware that she needed to obtain the leave of the Court under section 8(2) to pursue her application since she specifically sought such leave at paragraph (1) of her application. Yet, despite this, she failed to produce appropriate, or any, evidence of undue hardship. In my determination of this issue of undue hardship, I have approached the matter as if all of the facts set out by the applicant in her various affidavits are true. Counsel for the respondent did not seek to cross-examine the applicant on any aspect of her affidavits or to challenge any of the facts alleged in those affidavits. Instead, he chose to rely on his submissions that the applicant had simply not produced any evidence of undue hardship. I am in agreement with this submission and find that the applicant has failed to discharge the onus on her to produce such evidence. In effect, there really is nothing on which the Court can exercise its discretion in the applicant’s favor and counsel for the applicant was hard-pressed to show that there is. As a consequence, the applicant having failed to cross the first hurdle in this matter, the issue of determining the substantive application does not arise. Leave to pursue the application is therefore refused and the application is dismissed with costs to be taxed in default of agreement and paid by the applicant to the respondent.