Oliver v DeFreitas
Citation: TT 2013 HC 255
Title: OLIVER v. DE FREITAS
Country: Trinidad and Tobago
Court: High Court
Suit No.: FH 1505 of 2010
Judge(s): Mohammed, J.
Date: December 5, 2013
Subject: Family Law
Subsubject: Co-habitational relationships – Property adjustment order – Respondent suffers from mild cognitive disorder – Whether the agreement was in fact a co-habitational agreement in accordance with Part IV of the Act – Whether the applicant made any direct or indirect financial contributions to the improvement of the properties in question – Whether the applicant made any contributions in capacity of homemaker or other contribution to the welfare of the family – Whether the applicant had acquired an interest in the properties – Whether the applicant was entitled to a property adjustment order – Finding cohabitation agreement ineffective due to lack of legal advice – Claimant entitled to a share in the properties – Co-habitational Relationships Act, 1998.
Ms. Joan Byrne for the applicant
Mr. Anthony Manwah and Mr. Riad Ramsaran for the respondent
- MOHAMMED, J.: The parties met in 1971 when neither of them was married. They had a relationship which lasted for about two years. They once again commenced a relationship in 2002. At that time the applicant was employed as a Purser with British West Indian Airways (BWIA). Both parties were previously married. The marriage of the respondent was dissolved on the 29th April, 2003 and the marriage of the applicant was dissolved on the 14th October, 2002. They both have children from their previous marriages, all of whom are adults.
- The respondent is the owner and director of the company Bofrei Agencies N.V. which has locations in both Trinidad and Curacao. Bofrei Agencies N.V is engaged in the business of food distribution, sale of dry goods and other products including hair care products for beauty salons. At present the applicant is retired.
- The parties first lived at Apartment No. 9, Long Circular Road, Flagstaff, St. James from November, 2002 until May, 2003. Thereafter they lived at No. 2 Lamond Drive, Andalusia for almost three years. They commenced construction of their home in or around 2006 and in order to avoid renewing their lease at Andalusia, they opted to live with the applicant’s girlfriend, Ms. Angeli Gajadhar, at her house on Monte Coco Road, Maraval where they remained for about eight months until the completion of their home.
- In 2003 the parties developed an agro forestry business on the land situate at Fond Pois Doux Road, planting cyp, mahogany, cedar, limes, oranges, coconuts, peppers, pawpaw, cucumbers, pumpkins and plantains. The parties sold the produce from the agro forestry business at the local markets in Trinidad.
- In 2010 unhappy differences arose between the parties. On 13th April, 2010 the respondent travelled to Curacao for one week with the understanding that he will return in time for the Tobago Jan Experience for which the parties had already booked accommodations. He telephoned the applicant on one occasion and thereafter she was unable to make contact with him for one week. His telephone calls were infrequent and he requested that the applicant send copies of the survey plan and deed of the cohabitational property.
- The respondent returned to Trinidad on 9th June, 2010 and his ex-wife, Marietta, followed him two days later. Thereafter, the respondent spent all of his time with his ex-wife who was constantly sending notes with the respondent to the applicant requesting details of the cohabitational property. The applicant became very concerned about Marietta’s interest in the property. She sought legal advice from an attorney-at-law, Ms. Annabelle Davis, who wrote Marietta a letter advising of the respondent’s medical circumstances and further advised that he is unable to make rational decisions and is not competent to execute documents concerning any business matters in which he may be involved.
- On the 18th June, 2010 the respondent, accompanied by his ex-wife, daughters Zuwena and Aziza and Aziza’s boyfriend, Chris, arrived at the cohabitational property. The applicant was at home with her daughter Denneza and her friend Angeli. She was informed by Zuwena that they came to collect their father because the applicant was mistreating him. There was a confrontation between the parties. The police were called in and they remained on the premises until the respondent had packed his things. The following day the respondent’s nephew took one of the motor vehicles from the applicant’s control. The police were again called in. They advised the applicant to seek a restraining order which she did on 9th August, 2010.
- The applicant by an Application filed on 9th August, 2010 sought the following relief:
(a) A declaration that the applicant lived with the respondent in a cohabitational relationship as defined in section 2 of the Cohabitational Relationships Act 1998 (“the Act”);
(b) A property adjustment order pursuant to section 6 (a) of the Act with respect to the properties situate at 70 Fond Pois Doux Road, Maracas Bay, Trinidad and Lot No. 3 situate off the Auchenskeoch Buccoo Road, Mount Irvine, Tobago;
(c) That the Court gives effect to the cohabitational agreement entered into between the parties dated 5th May, 2007;
(d) An injunction pursuant to section 21(1) of the Act restraining the respondent whether by himself, his servants and/or agents from harassing and molesting or assaulting and/or threatening the applicant;
(e) An injunction pursuant to section 21(1) of the Act restraining the respondent whether by himself, his servants and/or agents from entering the premises situate at 70 Fond Pois Doux Road and further that he, his servants and/or agents be restrained from re-entering or remaining in or occupying the said premises until the hearing and determination of this Application;
(f) To set aside any dealings, transactions, transfers and encumbrances made by the respondent with respect to the properties situate at 70 Fond Pois Doux Road and Lot No. 3 situate off the Auchenskeoch Buccoo Road, Mt. Irvine, Tobago or other dealings effected since the date of the cohabitation agreement entered into between the parties on the 5th May, 2007 to avoid the applicant’s entitlement under section 10 (1), (2) and (3) herein.
- On the 11th day of August, 2010 the Court, on the application for an exparte injunction by the applicant, ordered inter alia:
- That an injunction is granted pursuant to section 210) of the Act restraining the respondent whether by himself, his servants and/or agents from harassing and/or molesting and/or assaulting and/or threatening the applicant herein;
- An injunction is granted pursuant to section 210) of the Act restraining the respondent whether by himself, his servants and/or agents from entering the premises situate at 70 Fond Pois Doux Road and further that he, his servants and/or agents be restrained from re-entering or remaining in or occupying the said premises until the returnable date for hearing and determination of this Application.
- The above injunctions were continued from time to time and are still in effect.
- In support of her Application for a property adjustment order, the applicant filed her principal affidavit on the 9th August, 2010. She thereafter filed a supplemental affidavit on the 2nd November, 2010 to exhibit copies of the parties mutual Wills and a copy of their alleged cohabitation agreement. On the 11th January, 2011 the affidavit of Augustus Pierre was filed in support of the respondent’s case. The respondent filed his affidavit in response to the applicant’s on the 14th February, 2011. On the 19th May, 2011, the applicant then filed two affidavits in reply to those of Augustus Pierre and the respondent.
ISSUES FOR DETERMINATION
- It is clear in this Court’s view that there is no real dispute on the question whether the parties shared a cohabitational relationship and that the applicant was a cohabitant within the meaning and purport of section 2 of the Act since 2002 until sometime in 2010. Both the applicant and the respondent gave sufficient evidence within their respective affidavits and oral testimony which convinced me that a cohabitational relationship did in fact exist between them. Although the respondent intimated that he could not remember whether the parties commenced living together in 2002, he did not deny being involved in a de facto relationship with the applicant. As a result, that issue does not fall to be determined by the Court and therefore the declaration sought in this regard will be granted without more.
- Consequently, the issues which arise from the evidence for determination in this case are as follows:
(a) Whether the applicant made any direct or indirect financial contributions to the improvement of the properties in question and financial resources of the parties? If so, what was the value of her contributions in that regard?
(b) Whether the applicant made any contributions in the capacity of homemaker or other contribution to the welfare of the family?
(c) Whether the applicant has acquired an interest in the properties situate at 70 Fond Pois Doux Road, Maracas Bay and Lot No. 3 situate off the Auchenskeoch Buccoo Road, Mt. Irvine, Tobago? If so, what is that interest?
(d) Whether the applicant is entitled to a property adjustment order with respect to the properties situate at 70 Fond Pois Doux Road, Maracas Bay and Lot No. 3 situate off The Auchenskeoch Buccoo Road, Mt Irvine, Tobago?
(e) Whether the agreement dated 5th May, 2007 is a cohabitation agreement pursuant to Part IV of the Act and whether the Court should give effect to the said agreement?
THE APPLICABLE LAW
- Effectively, the applicant’s substantive application is for property adjustment orders with respect to the properties situate at No. 70 Fond Pois Doux Road, Maracas Bay and Lot No. 3 situate off the Auchenskeoch Buccoo Road, Mt. Irvine, Tobago.
- The jurisdiction of the Court to make adjustment of interests orders in relation to property is derived from section 4(1) (a) of the Act. The application, however, is made pursuant to section 6(a) of the Act. Section 7 of the Act stipulates the prerequisites which an applicant must satisfy before the Court can make such orders. Section 7 provides inter alia:
“The Court shall not make an order under section 6 unless it is satisfied that –
(a) the applicant lived in a cohabitational relationship with the respondent for a period of not less than five years; or
(b) the applicant has a child arising out of the cohabitational relationship; or
(c) the applicant has made substantial contributions of the kind referred to in section 10,
and that failure to make an order would result in grave injustice to the applicant.”
The prerequisites are disjunctive and it follows that an applicant will be entitled to apply under section 6 if any one of the prerequisites is satisfied. To be entitled to the relief, however, the applicant must not only establish one of the prerequisites but must also go on to show that failure by the Court to grant such an order would result in grave injustice to the applicant.
From the above issues for determination it appears wise to deal first with the validity of the purported cohabitation agreement so as to ascertain whether the terms of the said purported agreement would be material to any order the Court may wish to make under Part III of the Act.
WHETHER THE AGREEMENT DATED 5TH MAY, 2007 IS A COHABITATION AGREEMENT PURSUANT TO PART IV OF THE ACT AND WHETHER THE COURT SHOULD GIVE EFFECT TO IT IN MAKING ANY ORDER UNDER PART III?
- It is the applicant’s evidence that the parties entered into a cohabitation agreement on 5th May, 2007. According to her, this agreement was signed while the parties were in Curacao. The agreement purports to confer upon the applicant a 1/4 interest in the cohabitational home and the land upon which it stands. In this vein counsel for the applicant has sought the Court’s indulgence to give effect to the said agreement and to construe it in light of the later purported mutual wills of the parties as showing the intention of the respondent to benefit the applicant. Copies of the mutual wills of the parties and the alleged agreement were exhibited as “P.P.O.17” to the applicant’s principal affidavit. Both parties have made submissions as to the effect and interpretation of the said agreement. It is important, therefore, to consider the said agreement in light of the applicable law.
- Section 23 of the Act defines a cohabitation agreement as “an agreement whether made before or after the commencement of this Act, which makes provision with respect to financial and other matters, and includes an agreement which varies a cohabitation agreement” Section 24 permits a man and a woman who are not married to each other to enter into a cohabitation or separation agreement for the purpose of facilitating their affairs under the Act. By section 25 such an agreement may deal with the parties respective rights and obligations during the period of cohabitation, or upon them ceasing to cohabit, or on death, including-
(a) their interests in or division of property;
(b) their maintenance obligations;
(c) the right to direct the education and moral training of their children; and
(d) any other matter in the settlement of their affairs.
Any agreement entered into under section 25 is subject to and enforceable in accordance with the law of contract: [see section 27 of the Act]. In this regard, parties are free to enter into agreements on such terms are they see fit. Section 28(1) of the Act, however, prescribes the elements that must be attendant on such agreement in order for a Court to give full effect to the agreement when considering an application for an adjustment order or an order for maintenance under Part III of the Act. The elements stipulated by section 28(1) are:
(a) there is a cohabitation or separation agreement between the parties;
(b) the agreement is in writing;
(c) the agreement is signed by the parties and witnessed by an Attorney-at-law;
(d) each cohabitant was, before the time at which the agreement was signed, advised by an attorney-at-law as to the following matters:
(i) the effect of the agreement on the right of a cohabitant to apply for an order under Part III;
(ii) whether or not it was financially prudent to enter the agreement; and
(iii) whether or not the provisions of the agreement were fair and reasonable.
Where the Court is satisfied that these elements are attendant on any such agreement, the Court shall not, except as provided by section 29, make an adjustment order or an order for maintenance under Part III that would be inconsistent with the terms of the said agreement. Section 28(2) however, provides that —
“Where, on an application by a cohabitant for an order under Part III, the Court is satisfied that there is a cohabitation agreement or separation agreement between the parties, but the Court is not satisfied as to any one or more of the matters referred to in subsection (1), the Court may make such order as it could have made, if there was no such agreement in existence.”
The Court may make an order referred to in subsection (2) even in cases where such agreement purports to exclude the jurisdiction of the Court: [see section 28(3)].
- The purported cohabitation agreement exhibited as “P.P.0.17” was not witnessed by an attorney-at-law nor was there any evidence that each cohabitant was, before the signing of the said agreement, advised by an Attorney-at-law as to the matters stipulated in section 28(1) (d) (i)-(iii) of the Act. Pursuant to section 28(2) of the Act, therefore, this Court is well within its power to disregard the said agreement and to consider the application made under Part III of the Act as “if there was no such agreement”.
- The facts of this case show that the respondent has stated in both his affidavit evidence and his evidence under cross that he does not remember executing such an agreement with the applicant. Given the fact that the respondent has a mild cognitive impairment, this is not surprising: the respondent had great trouble remembering facts and in understanding and answering questions under cross-examination. This is yet another reason why it appears to this Court unsafe to give effect to the said purported cohabitation agreement, more particularly where the respondent did not receive legal advice on the effect of the said agreement.
WHETHER THE APPLICANT MADE ANY DIRECT OR INDIRECT FINANCIAL CONTRIBUTIONS TO THE IMPROVEMENT OF THE PROPERTY AND FINANCIAL RESOURCES OF THE PARTIES?
- I am satisfied that the applicant and the respondent shared a cohabitational relationship within the meaning of the Act. This having been said, I will now determine the contributions that were made by the applicant towards the improvement of the property for which she seeks an adjustment order.
- Section 10(1) of the Act provides that on an application for an adjustment order, the 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.
- The relief sought by the applicant in this matter is for a property adjustment order in favour of two properties. The first property is situate at 70 Fond Pois Doux Road, Maracas Bay, (hereinafter referred to as “the cohabitational home”) and Lot No. 3 situate off the A uchenskeoch Buccoo Road, Mt Irvine, Tobago (hereinafter referred to as “the Tobago property”).
- Before I venture to determine the adjustment application, I must first consider the circumstances under which each property was acquired and the applicant’s direct or indirect contribution towards their acquisition and subsequent improvement thereto.
THE COHABITATIONAL PROPERTY/ MARACAS PROPERTY
- It is the applicant’s case that the respondent has acknowledged her 1/2 interest in the cohabitational home and land on which it stands and an additional 1/3 interest in the remaining land. While the respondent accepts that the applicant is entitled to a ‘A interest in the cohabitational home, he does not, however, accept that she has acquired any interest whatsoever in the land on which the cohabitational home rests or the other portions of land. This, it seems to me, is the area of contention between the parties.
- The land upon which the cohabitational home rests is owned by the respondent and his brother, Lawrence De Freitas as tenants in common. This property was purchased in 1998 (four years prior to 2002, the year stated by the applicant as the commencement of their cohabitational relationship) from one Mr. Cuthbert Gladstone Pierre for the sum of three hundred and fifty thousand dollars ($350,000.00).
- I note that the land is owned by the respondent and his brother as tenants in common and that while a joint tenancy prevents one of the owners from disposing of his share in the property, a tenancy in common has no such restrictions. The interest in the land of each tenant in common is separate and distinct from the other. While all tenants in common are entitled to physical possession of the whole property, they can each deal with third parties as to their share as a separate owner, generally without the need for another co-owner’s consent (unless they have a co-ownership agreement in place), and each tenant in common is free to sell or otherwise deal with his or her interest in the property at anytime (unless there is in place a co-ownership agreement which contains terms of restriction).
- Before the advent of the Act, parties to a de facto relationship seeking to establish an interest in property between them had to rely on elements of trust law, more particularly, the constructive or resulting trust when proffering evidence of contribution to the acquisition or improvements to the said property. While the Act now provides for the statutory criteria of establishing contribution the authorities on the law of trust in relation to contribution will still be of assistance.
- The concept of the constructive trust is really an equitable remedy employed by the Courts to satisfy the demands of justice and good conscience without reference to any presumed intention of the parties.
- In Lloyds Bank Plc v. Rosset 119901 UKHL 14 Lord Bridge of Harwick stated as follows:
“The first and fundamental question which must always be resolved is whether, independently of any inference to be drawn from the conduct of the parties in the course of sharing the house as their home and managing their joint affairs, there has at any time prior to acquisition, or exceptionally at some later date, been any agreement, arrangement or understanding reached between them that the property is to be shared beneficially. The finding of an agreement or arrangement to share in this sense can only, I think, be based on evidence of express discussions between the partners, however imperfectly remembered and however imprecise their terms may have been. Once a finding to this effect is made it will only be necessary for the partner asserting a claim to a beneficial interest against the partner entitled to the legal estate to show that he or she has acted to his or her detriment or significantly altered his or her position in reliance on the agreement in order to give rise to a constructive trust or a proprietary estoppel.”
- In the paragraph immediately preceding the above stated paragraph from Rossett opcit Lord Bridge said:
“In sharp contrast with this situation is the very different one where there is no evidence to support a finding of an agreement or arrangement to share, however reasonable it might have been for the parties to reach such an arrangement i f they had applied their minds to the question, and where the Court must rely entirely on the conduct of the parties both as the basis from which to infer a common intention to share the property beneficially and as the conduct relied on to give rise to a constructive trust In this situation direct contributions to the purchase price by the partner who is not the legal owner, whether initially or by payment of mortgage instalments, will readily justify the inference necessary to the creation of a constructive trust But, as I read the authorities, it is at least extremely doubtful whether anything less will do.”
- Accordingly, it is necessary for the applicant to demonstrate to this Court by way of evidence that the parties had a common intention to share the property. The starting point of this assessment lies in finding in whom the legal title lies: Stack v. Dowden  UKHL 17, Jones v. Kernott  3 WLR 1121. In this case legal title rests in the respondent and his brother, Mr. Lawrence De Freitas. Therefore, the burden of proving the existence of a trust rests squarely on the shoulders of the applicant and the intention of the parties must be considered.
- In Geary v. Rankine  EWCA Civ 555 Lord Justice Lewinson, in determining whether a constructive trust could be ascertained, stated:
“18. The search is to ascertain the parties’ actual shared intentions, whether express or to be inferred from their conduct In Jones v. Kernott it was pointed out that there are at least two exceptions. The first is where there is a presumption of a resulting trust That presumption may arise where the partners are business partners as well as domestic partners. In the present case if it applies that exception would work in Mr. Rankine’s favour since he provided all the money.
- The second is where it is clear that the beneficial interests are to be shared but it is impossible to divine a common intention as to the proportions in which they are to be shared. Whether the beneficial interests are to be shared at all is still a question of a party’s actual shared intentions. An imputed intention only arises where the Court is satisfied that the parties’ actual common intention, express or inferred, was that the beneficial interest would be shared, but cannot make a finding about the proportions in which they were to be shared.”
- In Geary v. Rankine op cit, the parties entered into a relationship in 1990. They had one child, born in 1992. In 1996 Mr. Rankine purchased a guesthouse (“Castle View”) with £61,000, without mortgage, entirely with his own funds. It was originally intended that it would be run by a manager rather than either of the parties, but in due course Mr. Rankine managed the business himself and Mrs. Geary also became involved in the business. The parties separated in 2009. Mrs. Geary claimed (1) that she had acquired a beneficial interest in the Castle View property and (2) that she and Mr. Rankine had been partners in the guest house business but the Court of Appeal did not so find. In dismissing Mrs. Geary’s appeal Lewison, L.J. stressed that a common intention had to be common to both parties, so Mrs. Rankine had to demonstrate that Mr. Rankine had intended that she had a beneficial interest in the property, either expressly or from his conduct. Lewison, L.J. rejected Mrs. Rankine’s challenge to the Circuit Judge’s finding that Mr. Rankine had not changed his intention so as to intend that she should have an interest. Mrs. Geary’s case, in Lewison L.J.’s view, had amounted to saying that there was a common intention that the business be run together, but it was an “impermissible leap” to go from that to a common intention that the property in which the business was run would belong to both parties.
- In the matter before me, the respondent was free to deal with his portion of the property in whatever manner of his choosing. Counsel for the applicant has submitted that the respondent’s intention to transfer a 1/2 interest in the land on which the home rests and 1/3 interest in the agro forestry business land can be seen from the wills of the parties and the alleged cohabitational agreement made between the parties.
- The applicant annexed and tendered into evidence two (2) mutual wills, more properly exhibited as “P.P.O.17”, which were executed by the parties in similar terms. Paragraph  of the respondent’s will states as follow:
“We have erected our home on a parcel of land situate at Fond Pois Dour Road Maraval which stands on a parcel of land owned by me and which I intend shortly to transfer into our said names as tenants in common (hereinafter referred to as the cohabitational home).”
- Paragraph  of the applicant’s will is in identical terms to the respondent’s will. And while it is accepted by all that a will is ambulatory in nature and its terms take effect upon the death of the testator, the wills of the parties could be used to infer a common intention that the respondent and the applicant intended that the applicant will have a beneficial interest in the property. However, the wills are silent as to any intention to transfer a 1/3 interest in the agro forestry business to the applicant. Further evidence of the parties’ respective intention can be seen from how they conducted their affairs.
- Both parties expended substantial sums on the construction and outfitting of the Maraval property. It is the applicant’s evidence that she used her savings from her divorce settlement, and her BWIA retirement benefits, and her gratuity towards the construction of their home. The cost of the building structure was $300,000.00, and she spent $400,000.00 on work done in the interior of the home. By valuation report dated 13th February, 2013, the market value of the property is One Million, Seven Hundred Thousand Dollars ($1,700,000.00). I do not accept that the applicant was the one who supervised and hired all of the workers and skilled technicians to do the work. I believe that this task was undertaken by both parties.
- I accept and so does the respondent, that the applicant did contribute financially to the construction of the building, interior furnishings, tiling, wooden floors, kitchen cupboards, furniture and appliances and I also accept that it is possible that these items could cost in the vicinity of $400,000.00.
- While the land upon which the property rests was acquired by the respondent prior to his relationship with the applicant, both parties contributed to the construction of the home, and they both admit this fact. Taking into account the financial contribution and homemaker contribution of the applicant I have concluded that she is entitled to a fifty percent (50%) share of this property, inclusive of the land upon which it rests.
- The applicant also seeks a property adjustment order with respect to the Tobago property situate off the Auchenskeoch Buccoo Road, Mount Irvine, Tobago. It was purchased by the respondent from Villana Romany and Sandra Romany for the sum of One Million One Hundred Thousand Dollars ($1,100,000.00).
- The building is a single storey structure and it has been divided into two separate apartments. Each apartment comprises a patio, living room, dining room, kitchen, two bedrooms and two bathrooms. There is also a patio, laundry room and store room off the eastern apartment. The market value of the property is Two Million, Six Hundred and Fifty Thousand Dollars ($2,650,000.00)
- It is the applicant’s case that she assisted the respondent with his Tobago property. He had constructed two duplexes which needed decorating, repairs and landscaping. She stated that the respondent tasked her with the responsibility of managing the Tobago property. As its manager she was responsible for advertising the Villas in the Newspapers and on the internet as well as ensuring that repairs were done. She was also responsible for landscaping and decorating the property, securing and preparing the inventory, ensuring that the villas were ready for the tenants, issuing all correspondence and agreements to tenants, and handling default in the payment of rent by tenants. She was also responsible for monitoring the respondent’s bank statements and making sure that rents were received. She also selected and decorated the apartments with items which were imported from Jamaica, the United States of America and England. The details surrounding her alleged involvement in the Tobago property is detailed in paragraph 14 of her affidavit filed on 19th May, 2011.
- With respect to the Tobago property, I note that the applicant stated in her affidavit of the 9th August, 2010 that “I was in charge of doing the project management for this venture. I brought materials, hired workmen, paid bills, paid for labour, brought furniture, decorate (sic) and made sure the properties were ready for rental”.
- When cross-questioned at trial regarding the Tobago property, the applicant was asked about her statements in her affidavit which were to the effect that she paid the bills and paid for labour. She was asked whether she utilized her money or Mr. De Freitas’ money to do so. In response, the applicant stated that “Mr. De Frietas money would have been used; a majority, as well as mine”. The applicant made no mention of Mr. De Freitas’ financial contributions in this regard in her affidavit of the 9th August, 2010. In fact, her statements, coupled with her claim of having annexed receipts and invoices for monies she expended, conveyed the impression that it was she solely who contributed financially towards the stated expenses.
- I note further that though the applicant claims in her affidavit evidence that the bundles of documents attached at “P.P.O.10” are invoices and receipts for the monies which she allegedly expended on the Tobago property, a perusal of the said documents reveals no receipts or invoices as claimed but rather a handwritten checklist of things to be done or items to be purchased along with an inventory. Thus, despite the applicant’s claims, there is no documentary proof to support her assertions that she contributed financially towards the improvement or renovation of the Tobago property. In fact, it was misleading of the applicant to claim that she had annexed receipts and invoices when clearly that was not the nature of the annexed documents at “P.P.O.10”.
- In his affidavit evidence, the respondent states that the applicant did not assist him in decorating, repairing, or landscaping the apartments, purchasing materials, hiring and paying workers, purchasing furniture, nor did she ensure that the apartments were ready for rentals. He denied her alleged management of the Tobago property. However he acknowledged that the applicant did visit the apartments on occasion with him and gave suggestions on how they could be decorated. Some of these suggestions were taken and others were not as he felt that the apartments being his, he knew how he wanted them to look. Further, one Mr. Neil Alfred was hired by the respondent to care for the garden and ensure that the building was maintained and in good repairs. Mr. Alfred would advise the respondent of any problems that the tenants were having with the apartments. The details surrounding the respondent’s denial of the applicant’s alleged involvement in the Tobago property are set out in paragraph 13 of his affidavit filed on 14th February, 2011.
- However, when under cross-examination by astute counsel, the respondent revealed that the applicant did in fact assist in painting the apartment, and that she redid the interior decorations of both apartments. He also admitted that she bought decorative items such as vases, sheets, towels, curtains, bathroom curtains and so forth and that they shopped for plants together with assistance from one of the applicant’s daughter’s boyfriend who supplied them with exotic plants. Further, he acknowledged that the applicant was also instrumental in locating tenants for the apartments and collecting rents from them on his behalf. The respondent’s evidence under cross-examination was vastly different from the evidence contained in his affidavit referred to above and I prefer and accept the evidence proffered by him under cross-examination.
- The applicant provided the Court with detailed information concerning her involvement in the Tobago property and I do not think it was a figment of her imagination. I accept that she was involved in managing the renovations, that she assisted in painting and further, that she would have incurred some expenditure on decorative items and other soft furnishings. That being said, I am of the view that the applicant nonetheless sought to exaggerate the extent of her financial contribution towards the renovations and I find that the bulk of the financing of same came from the respondent. In the circumstances, I am of the view that the applicant has acquired a 10% interest in the Tobago Property. The valuation report of G.A. Farrell & Associates Ltd. dated the 5th March 2012 put the value of that property at two million six hundred and fifty thousand dollars ($2,650,000). Accordingly, the value of the applicant’s interest in the Tobago property is calculated at $265,000.00.
CONCLUSION AND ORDERS
For the reasons outlined above this Court orders as follows:
1) It is hereby declared and affirmed that a cohabitational relationship existed between the parties from 2002 until June, 2010;
2) It is also hereby declared that the applicant has acquired a Fifty Percent (50%) share, title and interest in the entire property situate at No. 70 Fond Pois Doux Road, Maracas Bay, Trinidad which represents her contributions towards the construction of the home and improvement of the said property;
3) The applicant is permitted to purchase the respondent’s 50% share, title and interest in the Maracas Bay property and in this regard shall pay to the respondent the lump sum of Eight Hundred and Fifty Thousand Dollars ($850,000.00) within 6 months from the date of this order which said sum represents his share, title and interest in the said Maracas Bay property;
4) Within one month of the full payment of the said lump sum of Eight Hundred and Fifty Thousand Dollars ($850,000.00) by the applicant to the respondent, the respondent shall execute the appropriate instrument of transfer of the Maracas Bay property into the sole name of the applicant; in default of which the Registrar of the Supreme Court shall be and is hereby empowered to execute the said instrument of transfer as and for the act and deed of the respondent;
5) That it is further declared that the applicant has acquired a ten percent (10%) share and interest in the property situate off the Auchenskeoch Buccoo Road, Mount Irvine, Tobago which represents her contribution towards the improvement of the said Tobago property;
6) The respondent shall pay to the applicant the lump sum of Two Hundred and Sixty-Five Thousand Dollars ($265,000.00) within 6 months of the date of this order which said sum represents the applicant’s share and interest in the said Tobago property; and
7) The respondent shall pay the applicant’s costs of the injunctive proceedings as well as 35% of the applicant’s costs of the trial of the substantive application for adjustment orders.
ROBIN N. MOHAMMED