Ogden Browne v Sally-Ann Browne

JurisdictionAntigua and Barbuda
CourtHigh Court
JudgeHarris J
Judgment Date15 February 2008
Judgment citation (vLex)[2008] ECSC J0215-2
Docket NumberCLAIM NO: ANUHCV 2007/0096
Date15 February 2008
[2008] ECSC J0215-2

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL)

CLAIM NO: ANUHCV 2007/0096

In the Matter of the Married Women Property Act, Cap. 267.

and

In the Matter of an application for a declaration of Interest in Property

Between:
Ogden Browne
Claimant
and
Sally-Ann Browne
Defendant
Appearances:

Ms. C. Debra Burnette of Henry & Burnette for the Claimant

Mr. George Lake of Lake & Kentish for the Defendant

Registration Section

Block

Parcel

Central

14 219 OB

70

Harris J
1

This is an action brought by a husband/Claimant and wife/Defendant about the beneficial ownership of their matrimonial home. It is brought under the Married Women Property Act Cap. 267 and concerns the parcel of land more particularly described at the Land Registry as Registration Section: Central, Block: 14 219 OB, Parcel: 70. The parcel of land is registered in the sole name of the Claimant, Ogden Browne.

2

The Claimant, Mr. Browne, claims the entire interest in the matrimonial home. The Defendant, Mrs. Browne, by way of her Defence and Counterclaim asserts her interest and entitlement to half of the matrimonial property on the basis of her (i) financial contributions to the construction of the matrimonial home (ii) her domestic endeavour, (iii) a Common Intention between herself and her husband/claimant that she should have a share in the subject property.

3

The Claimant purchased the land upon which the matrimonial home was constructed in or about 1988 prior to meeting the Defendant. The parties met and began an intimate relationship in 1990. The parties' relationship then bore it's first (1 st) child in the same year, 1990 whilst the Claimant was abroad on an academic scholarship. Construction of the matrimonial home which had its D.C.A approval in 1988, commenced in 1993.

4

In 1990 the Claimant had received a scholarship and left Antigua to pursue studies in that year, before he had and intimate relationship with the Defendant. The relationship became intimate later that year when the Claimant had returned on his vacation.

5

The Claimant had an adequately funded scholarship that provided him with a financial surplus during his tenure as a student until his completion of his studies in November of 1991. During this time he paid the Defendants rent and some other outgoings.

6

When the Claimant first met the Defendant, the Defendant was working at Richardson' Supermarket $175/wk. The evidence is that she became very ill with her first pregnancy with the Claimants child and stopped working in 1990. She resumed working early in 1993. During this period between 1990 and 1993 the Claimant maintained the child and paid the Defendant's rent, initially, from his surplus scholarship funds and subsequently from his employment income.

7

The construction of the foundation of the home commenced in 1993 at a completion cost estimated by the Claimant at $40,000.00 1. Some construction material was purchased piece-meal over the period from 1993 to completion. After the construction that year no further work was done on the house until 1998. It would have been clear to the Claimant at this stage that he would be unable to comfortably complete the house from his income.

8

Substantial quantities of material for the continued construction of the matrimonial home were credited from the Antigua Plumbing and Hardware Centre. Pursuant to a credit agreement with the said Hardware, the Claimant's Land Title Deed was retained by the said Hardware Centre as security.

9

In September of 1998 the sum of $171,000.00 was borrowed from Barclays Bank PLC 2 with the Defendant as "Co-applicant" and the Claimant as "Main applicant". These funds were used to complete the matrimonial home and for payment to existing creditors such as contractors and the aforementioned Antigua Plumbing and Hardware Centre.

10

The Defendant does not claim to have been involved in the purchase of the land but does assert that she, together with the Claimant, at the beginning, discussed their plans for the building of their matrimonial home and that she was subsequently involved in making changes to the approved D.C.A plans. Further, the Defendant asserts, she contributed to the purchase of material and jointly entered into the loan agreement with Barclays Bank 3 after discussions with the Claimant.

11

This loan/mortgage agreement was evidenced by a copy of a completed application form which represented the Defendant as unemployed and the associated Monthly Budget Analysis represented her income as nil. The Defendant acknowledged this fact in her oral testimony 4.

12

She asserts that by agreement with the Claimant, following her illness due to her pregnancy, she stayed home to take care of the children and carry out other domestic household activities. The Defendant says that interspersed with periods of domestic endeavour she earned an income from various sources including formal employment and "box hands" all of which were used to make her direct contribution to, the purchase of construction material for the construction of the matrimonial home and, indirect contributions by paying for food, clothing for the family, cable T.V./utilities, school fees and things for the house. Further, testified the Defendant, she obtained financial assistance for the construction of the house from her sister here in Antigua and her father in Dominica.

13

The Defendant did not stop there, but alleged that from the time the Claimant was intimately involved with her, they had discussions about building a house on the said land for them to have a family home. That he had told her on several occasions that the home was for both of them.

14

The core of the Defendant's 'common intention' contention is perhaps best encapsulated in paragraph 2 of her Witness Statement/evidence in chief. I think it important enough and certainly convenient for the reader, to set out the relevant part here: "…At this time we discussed building our family home on the said lands at Lightfoot. We talked about having our children and raising them in our own home. These talks continued over a period of time. Sometime in 1992, after the claimant returned to Antigua, we decided that the time was right to begin building our home. We decided that initially we would try to make a start out of our joint resources without going to the bank. We pooled our salaries, had plans drawn up and approved and began work on the foundation. At all material times it was said and understood by both of us that the house will belong to both of us beneficially and that it would be our family home".

THE ISSUES
15

The following are the issues for determination:

  • (i) Whether the Defendant contributed directly and/or indirectly to the construction of the dwelling house on the land earlier described.

  • (ii) Whether the Defendant contribution if any, is sufficient to entitle her to a beneficial interest in the property notwithstanding the Claimant's sole legal Title thereto.

  • (iii) Whether the Claimant holds the property on a constructive /resulting trust for the use and benefit of himself and the Defendant.

  • (iv) What if, any, is the Defendant's share in the matrimonial property.

  • (v) Whether the Defendant wrongly lodged a caution on the said property.

THE LAW
16

This claim is under the Married Women's Property Act a law that dates back to 1887. There is no modern statute applicable here in Antigua that amends or otherwise impacts on this statute in a manner relevant to this case. According to Baroness Hale of Richmond, in the Privy Council case out of Antigua and Barbuda (P.C. Appeal #142/05) Lynn Anne Abbott v Dane N. L. Abbott ), at paragraph 2; "unlike some other Caribbean countries, Antigua and Barbuda have no equivalent of the wide powers of property adjustment enjoyed by divorce courts in the U.K. Property disputes have therefore to be resolved according to the ordinary law."

17

The law on the Married Women's Property Act is set out in cases of Pettitt v Pettitt [1969] 2 All ER 385 and Gissing v Gissing [1979] 2 All ER 780 HL and continued to be developed in Lloyds Bank plc v Rosset [1991] 1 AC 107 and Stack v Dowden [20007] UKHL 17, [2007] 2WLR 831 and the Abbott case.

18

The applicable law in the matter before this Court has not changed much. The rights of the parties in these circumstances are defined by the concepts of Resulting Trusts and Constructive Trusts 1. The fundamental question to both trust concepts though, 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" (Baroness Hale of Richmond in Privy Council Appeal #142 of 2005 Lynn Anne Abbott v Dane N. l. Abbott at para. 3 of the Judgment quoting Lord Bridge of Harwich in Rosset's case [1991] 1 AC 107, at 132–3). Lord Bridge goes on to say; "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 own detriment or significantly altered his or her position in reliance on the agreement in order to give rise to a constructive trust or proprietary estoppels".
19

The Resulting Trust is created by payment or a part payment of the purchase price. By operation of Law the resulting trust arises in favour of the party who has provided money for...

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