Romig Westerby Michael v Heather Michael

• Jurisdiction: Antigua and Barbuda
• Judge: RAWLINS, C.J.,Chief Justice,Justice of Appeal,Hugh A. Rawlins,Davidson Baptiste,Justice of Appeal [Ag.]
• Judgment Date: 29 June 2010
• Judgment citation (vLex): [2010] ECSC J0629-1
• Court: Court of Appeal (Antigua and Barbuda)
• Docket Number: HCVAP 2008/015
• Date: 29 June 2010

[2010] ECSC J0629-1

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Hugh A. Rawlins Chief Justice

The Hon. Mr. Davidson Baptiste Justice of Appeal

The Hon. Mr. Michael Gordon, QC Justice of Appeal [Ag.]

HCVAP 2008/015

Between:

Romig Westerby Michael

Appellant

and

Heather Michael

Respondent

Appearances:

Mr. Dane Hamilton, QC, with him Mr. D. Raimon Hamilton for the Appellant

Sir Clare Roberts, QC, with him Ms. C. Kamilah Roberts for the Respondent

Ancillary relief – 2 properties other than the matrimonial home purchased by the appellant and registered in his name only – whether trial judge erred in awarding the respondent a beneficial interest in 2 properties

The parties were married for 42 years before they divorced in 2007. Their 2 children are now adults. This appeal arises out of the ancillary relief proceedings with respect to their Antigua properties, which were acquired during the subsistence of the marriage. They acquired the matrimonial home in Antigua during the late 1960's. It stands on Parcel: 297 of Cassada Gardens and New Winthropes. They moved into it in 1968 and occupied it until 1980, when Mrs. Michael and the 2 children migrated to Florida. Mrs. Michael worked as a nurse there. Mr. Michael remained in Antigua, but contributed to the maintenance of the family in Florida and visited them on various occasions. In 1983, he rented out the matrimonial home and moved in with his sister. He paid her a monthly rent, which was about half the rent that he received for the matrimonial home. In 1982, the Michaels purchased a house in Florida. Both of them made substantial financial contributions towards that purchase. Mr. Michael paid the initial deposit. Mrs. Michael paid the monthly installments. Mr. Michael continued to pay the mortgage on the matrimonial home, while Mrs. Michael paid that on the Florida home.

Mr. Michael resigned from his employment with Joseph Drew Limited in 1985 and received $22,000.00 in thrift fund contributions. He placed this sum into a fixed deposit account in his and his wife's name in Florida. He was then employed as a manager with George Bennett Bryson & Sons Limited. In 1992, he purchased Parcel 298 at Cassada Gardens and New Winthropes, adjoining the matrimonial home and registered it solely in his name. In 1996, he purchased a plywood house and placed it on this parcel intending to use it as his investment for retirement. He also purchased Parcel 328 at McKinnons with a furnished house on it. He registered the property in his name and moved into it. Mrs. Michael also moved into it when she retired and returned from Florida in 2004.

The decision to award a 50% beneficial interest in the matrimonial home to Mrs. Michael was not appealed. Mr. Michael appealed the decision to award her a 30% beneficial interest in each of the properties on parcels 298 and 328. This decision was made on the ground that the parties organized their affairs in a manner that evinced a common intention, by way of inference, that these 2 properties were to be owned by them, jointly, and Mrs. Michael had detrimentally relied on that common intention.

Held: allowing the appeal with respect to parcel 298 but dismissing the appeal with respect to parcel 328, the parties to meet their own costs in the court below and in the appeal:

• 1. The learned trial judge correctly identified and stated the applicable legal principles as enunciated in Abbott v Abbott Privy Council Appeal No. 142 of 2005, Pettitt v Pettitt [1970] AC 777, Gissing v Gissing [1970] 2 All ER 780, and Lloyds Bank PLC v Rosset [1991] 1 AC 107.

• 2. The evidence provides sufficient grounds on which the judge could have found that there was a common intention that Mrs. Michael would have a beneficial interest in the property at parcel 328 and she had detrimentally relied on it.

• 3. While there was sufficient evidence to found a common intention that Mrs. Michael would have a beneficial interest in the property at parcel 298, there was no evidence that she had detrimentally relied on that common intention.

RAWLINS, C.J.

1 This appeal arises out of a matrimonial property dispute, which was heard in the ancillary relief stage of divorce proceedings. The proceedings in the High Court involved 3 properties. One was the matrimonial home on Parcel: 297, Registration section: Cassada Gardens and New Winthropes ("parcel 297"). The judge held that this property is held by the Michaels in equal shares, with Mr.Michael holding Mrs. Michael's 50% interest or share on trust for her. This decision was not appealed.

2 The judge held, however, that Mrs. Michael is entitled to a 30% beneficial share in each of the other 2 properties, to wit, Parcel: 298, Registration section: Cassada Gardens and New Winthropes, ("parcel 298") and Parcel: 328, Registration section: McKinnons, ("parcel 328"). The judge also held that Mr. Michael holds those interests or share on trust for Mrs. Michael. These decisions were appealed, but not the 30% quantification of the interests awarded to Mrs. Michael. The judge ordered the valuation of these 2 properties, by an agreed valuator, and their sale, with an option for Mr. Michael to purchase Mrs. Michael's interest. Each party was ordered to bear his or her own costs.

3 In arriving at her decision, the learned trial judge relied on the principles enunciated inAbbott v Abbott,1Pettitt v Pettitt [1970] AC 777,2Gissing v Gissing [1970] 2 All ER 780,3 and Lloyds Bank PLC v Rosset [1991] 1 AC 107.4 She found that in all of the circumstances, it was clear that the parties organized their affairs in a manner that evinced a common intention, by way of inference, that parcels 298 and 328 were to be beneficially owned by the Michaels, jointly. The judge further found that Mrs. Michael had detrimentally relied on that common intention because she provided furniture and household services, and assisted with the care and maintenance of the family in happier times.

4 Mr. Michael seeks an order setting aside the decisions with respect to parcels 298 and 328, as well as a declaration that he owns the 2 properties legally and beneficially. He also seeks costs in this court and in the court below. The appeal will be considered against a background.

Background

5 The Michaels were married on the 13^th August 1964. The marriage subsisted for some 42 years before they divorced in July 2007. The union produced 2 children who are now adults. During the marriage the parties acquired parcel 297. It was registered solely in Mr. Michael's name. A house was constructed on this parcel of land. It was completed in early 1967 and was rented for about one year. The parties moved into the house in 1968. Thenceforth, it became their matrimonial home until 1980, when Mrs. Michael and the 2 children migrated to Florida. Mrs. Michael worked as a nurse there. Mr. Michael remained in Antigua. The trial judge accepted5 that Mr. Michael assisted in maintaining Mrs. Michael and the children while they lived in Florida by providing US$800.00 per month for rent and living expenses. He visited them in Florida on various occasions.

6 In December 1981, Mr. Michael saw a house for sale in Florida for US$62,900.00. He decided to purchase. Upon his return to Antigua he borrowed US$20,000.00 from Barclays Bank towards a deposit for the purchase. The parties agreed that the balance was to be paid by Mrs. Michael by monthly installments of US$321.00, while Mr. Michael repaid the mortgage on the matrimonial home in Antigua.

7 Mr. Michael had moved out of the matrimonial home and rented it out. He lived with his sister and paid a monthly rental sum of EC$500.00 to her. He rented out the matrimonial home until 1997 for EC$800.00 per month. He then repaired it and thereafter rented it out again for EC$1,000.00 per month.

8 Mr. Michael worked with Joseph Drew Limited until 1985. According to him, he resigned and received his thrift fund contributions of US$22,000.00. He placed this money into a fixed deposit account in his and Mrs. Michael's name in Florida. Some 3 years later he learnt that Mrs. Michael had loaned the money to her brother who lived in Canada. He never received any part of the money. Mrs. Michael's evidence, on the other hand, is that she received US$25,000.00 from

Mr. Michael in or about February 1998. She did not lend the money to her brother. She did not use it for herself. Rather, it was used with Mr. Michael's knowledge to pay a bond for her son who was in prison in Florida. Mr. Michael willingly accepted that responsibility because she did not have the money to meet the bond at the time.6

9 On leaving Joseph Drew, Mr. Michael became a manager with George Bennett Bryson & Sons Limited in their supermarket and wholesale businesses. He earned EC$8000.00 monthly and a yearly bonus of between EC$30,000 –$35,000.00. In July 1992, Mr. Michael purchased parcel 298, which adjoins the matrimonial home for EC$11,000.00. Upon his retirement in 1996, he placed a plywood house on it, intending to use it as his investment for retirement. In 1992, Mr. Michael also purchased parcel 328 with a furnished house on it for EC$327,500.00. Mr. Michael renovated it immediately upon purchase at a cost of EC$93,000.00. Mr. Michael paid all legal and stamp duties. He registered parcels 298 and 328 solely in his name.

10 Mrs. Michael worked in Florida and cared for the children. During that time, she successfully applied for US citizenship for Mr. Michael. She also provided health insurance and other US benefits for him. She retired in 2004, returned to Antigua and lived with Mr. Michael in the house on parcel 328. Her evidence is that since her return they both occupied the house on parcel 328, which was partitioned with each of them living in separate portions by the time of the trial.

11 The present dispute relates mainly to the circumstances which surround the acquisition of the properties and the...