Janet Cochrane Claimant v Volmer Cochrane Defendant [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: MICHEL, J.
• Judgment Date: 13 May 2011
• Judgment citation (vLex): [2011] ECSC J0513-1
• Court: High Court (Antigua)
• Date: 13 May 2011
• Docket Number: CLAIM NO: ANUHCV 2008/0480

[2011] ECSC J0513-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CLAIM NO: ANUHCV 2008/0480

Between:

Janet Cochrane

Claimant

and

Volmer Cochrane

Defendant

MICHEL, J.

1 The parties to this case are Antiguan nationals resident in Canada. They met in Antigua in 1972 at a time when the Claimant, Janet Cochrane, was an unmarried mother of one child and the Defendant, Volmer Cochrane, was married and was the father of two children. In 1974 the Claimant migrated to Canada and the Defendant followed in 1976. In November 1977, with the Defendant apparently now divorced, the Claimant and the Defendant got married to each other in Canada. Two children were born to the parties in the course of their marriage and various properties were acquired by them. The properties acquired by one or both of the parties in the course of the marriage included boats,vehicles, businesses, houses and lands. The parties separated in August 2005 and in 2007 the Claimant instituted divorce proceedings in Canada.

2 By the time that the divorce proceedings were commenced some of the properties acquired by one or both of the parties had been disposed of—whether forcibly or voluntarily—leaving the parties then with the following properties as their principal assets: (1) the matrimonial home in Mc Murray in the province of Alberta in Canada; (2) a house in Calgary in the province of Alberta in Canada; (3) pension funds and related entitlements in Canada; and (4) about thirty acres of land in Antigua and Barbuda registered as parcels numbered 40, 41 and 42 in block number 52 1785A in the registration section of Christian Valley and parcels numbered 87, 88, 89 and 92 in block number 51 1984A in the registration section of Bendals. The houses in Canada were apparently in the joint names of the parties, the pension funds were apparently in their separate names, while the land in Antigua and Barbuda was in the sole name of the Defendant.

3 In April 2007, after the commencement of the divorce proceedings, the Claimant caused a caution to be registered in Antigua and Barbuda as the claimant of an equitable and beneficial interest in the land in Antigua and Barbuda registered in the name of the Defendant.

4 In July 2007 the parties executed Minutes of Settlement in their divorce proceedings towards settlement of their property rights, but excluded from the settlement the land in Antigua and Barbuda, leaving it to the court in Antigua and Barbuda to resolve any dispute between the parties concerning same.

5 In August 2008, with the parties now divorced, the Claimant filed the current proceedings in the High Court in Antigua and Barbuda claiming the following relief against the Defendant:

• 1. A declaration that the following properties registered in the name of the Defendant are beneficially owned by the parties in equal shares or alternatively in such shares as the Court may determine -

  Registration Section	Block	Parcels
  Christian Valley	52 1785A	40, 41, and 42
  Bendals	51 1984A	87,88, 89, and 92

• 2. An order that the property be sold and that the proceeds of sale be divided between the Claimant and Defendant in such shares as the Court may determine;

• 3. Alternatively, an order that the Defendant enter into arrangements upon security satisfactory to the Claimant to repay to the Claimant such shares as the Court may determine;

• 4. Such further or other relief that the court deems just;

• 5. Interest pursuant to section 27 of the Eastern Caribbean Supreme Court Act;

• 6. Costs.

6 The Defendant joined issue with the Claimant on her claim and counterclaimed against the Claimant for the following relief:

• 1. An order that the Claimant is not entitled to a half interest or any interest in the lands registered as -

  Registration Section	Block	Parcels
  Christian Valley	52 1785A	40, 41, and 42
  Bendals	51 1984A	87,88, 89, and 92

• 2. A declaration that the legal and beneficial interests in the said properties are vested solely in the Defendant;

• 3. A declaration that the Cautions lodged by the Claimant on the said properties on the 30^th day of April 2008 are wrongful;

• 4. Damages for wrongful caution;

• 5. An order directing the Registrar of Lands to remove the said caution;

• 6. Such further or other relief;

• 7. Interest pursuant to Statute;

• 8. Costs.

7 A Case Management Order was made by the Master on 11^th January 2010 setting out the dates by which various steps in the proceedings were to take place. Some of these dates were adjusted by Orders made by me on 7^th May, 11^th June and 2^nd July 2010, with the final Order setting the trial for 16^th November 2010.

8 At the trial, the Claimant gave evidence on her own behalf and called no witnesses, while the Defendant gave evidence on his own behalf and called one witness, Donald Hill.

9 The Claimant's case, as per her pleadings, her witness summary and her oral testimony, was to the effect that in the course of the marriage between the Defendant and herself the disputed land was purchased in Antigua and Barbuda in the name of the Defendant, but with contributions by the Claimant towards the purchase of the land. She averred that the land was acquired for the purpose of establishing a retirement home for the parties in Antigua, that it was paid for with the combined funds of the parties, including funds from her employment earnings, and that it was the common intention of the parties that the Claimant would have a substantial interest in the property.

10 The Claimant alleged that the process of purchasing the disputed land commenced between 1980 and 1982 when the Defendant and herself, along with two of their children, visited the land and visited its owners, Mr. and Mrs. Goodwin. She alleged that the purchase price of the land was settled at EC$200,000 and it was agreed that a deposit of CDN$5,000 would be transmitted to Mr. Goodwin upon their return to Canada and that the balance of the purchase price would be paid in installments over time. She further alleged that the purchase of the land was completed in the late 1990s.

11 The Defendant's case, as per his pleadings, was to the effect that he started negotiations towards the purchase of the land since 1974, initially with a real estate agent, and then in 1976 he arrived at an agreement with the owner of the land to purchase it from him for$200,000. He averred that, pursuant to this agreement, over a period of eight years he made payments towards the purchase of the land from the owner, Mr. Goodwin. He averred that the purchase price of the land was derived solely from the severance pay he received from West Indies Oil Company, company thrift benefits and savings over the years prior to his marriage to the Claimant. He averred that the land was acquired solely...