Sharon King-Farrell v Oswald Farrell

JurisdictionAntigua and Barbuda
JudgePhillip, J
Judgment Date16 May 2024
Judgment citation (vLex)[2024] ECSC J0516-1
Docket NumberCLAIM NO.: ANUHCV2016/0461
CourtHigh Court (Antigua)

In the Matter of the Married Woman's Property Act CAP 267

and

In the Matter of an Application for Declaration of Interest in Property

Between:
Sharon King-Farrell
Claimant
and
Oswald Farrell
Defendant

CLAIM NO.: ANUHCV2016/0461

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

APPEARANCES:

Mr. Lawrence Daniels for the Claimant

The Defendant pro se

Nature of the Proceedings
Phillip, J
1

This is a claim by Mrs Sharon King-Farrell (“the claimant”) against her husband, Mr Oswald Farrell (“the defendant”), to add her name to the title as a co-owner of their marital home situated at Matthews and described in the Register of Lands as Registration Section: St. Phillip North; Block: l5 2185B; Parcel: 338 (“the property”). It is important to immediately note that these are not matrimonial proceedings, so the law and principles applicable to ancillary relief matters do not necessarily apply.

2

By fixed date claim form filed on 8 th August 2016 and amended on 28 th February 2017 with a supporting affidavit filed on 8 th August 2016, the claimant asserted the defendant held the property on trust for her when he failed or refused to add her name to the title of the property even though she is the only person paying the bank mortgage of the house that they built together on the property. Thus, she has suffered loss and damages and continues to suffer loss and damages, and claims:

  • “1. A Declaration that the property situated at Matthews and described in the Register as Registration Section: St. Philips North; Block 15 2185B; Parcel: 338 are beneficially owned by the Claimant and Defendant in equal shares.

  • 2. An Order that the property described in the Registry of Lands as Registration Section: St. Philips North; Block#: 15 2185B; Parcel# 338 is held by the Defendant on Trust for the claimant as a co-owner in equal shares;

  • 3. An Order for Rectification of the Register that the claimant's name be added to the Title as a co-owner of the said property described in the Register of Land Registry as Registration Section: St. Philips North; Block#: 15 2185B; Parcel# 338 by virtue of section 121 of the Registered Land Act CAP 374 of the Laws of Antigua and Barbuda;

  • 4. A Declaration that the claimant is entitled to Damages for all monies paid for legal fees in the sum of $2,500.00;

  • 5. A Declaration that the claimant is both an equitable and legal owner of the said parcel of land.

  • 6. Prescribed costs;

  • 7. Interest pursuant to statute section 27 of the Supreme Court Act CAP 143;

  • 8. Any other relief this Honourable Court deems fit.”

3

The defendant filed an affidavit in response to the claim on 18 th November 2016 and a supplemental affidavit in response to the amended fixed date claim form on 8 th March 2017. He contends that:

The defendant asserted that the claimant had not contributed financially or otherwise in the amount that would make her a part-owner of the property or would justify adding her name to the land certificate.

  • 1. He did not acquire the land comprising the property but was land acquired by his grandfather, the late Charles Farrell, who died in New York in 1991.

  • 2. He commenced the construction of the house on the property in 2000 and received assistance from his mother, aunt and uncle to construct the house.

  • 3. He paid the greater part of the money so far on the mortgage, apart from owning the land the house is built on.

4

At the end of the trial of the claim on 26 th November 2020 (the adducing of the parties' evidence and the closing submissions of counsel for the claimant and the defendant in person), the defendant resiled from his initial position and acknowledged an interest for the claimant in the house, the subject matter of the claim, and indicated a willingness to sever the portion of land on which the house stand and to add the claimant's name to it at the Land Registry. The claimant accepted this proposal, and the court reserved its judgment to a date after 1 st April 2021 to be notified by the court office to facilitate discussion of the parties toward the amicable resolution of the matter. With the liberty to apply, the parties agreed to have discussions toward an amicable resolution of the matter as indicated in the proposal above and to file a consent position for the approval of the Court or a notice of discontinuance by 31 st March 2021.

5

By an email from the registrar of the court dated 18 th March 2024, I was informed, among other things, that the parties have been unable to arrive at a settlement; therefore, they now required the written reserved judgment.

The Evidence
6

The claimant filed a witness statement on 10 th January 2019, and the defendant on 31 st January 2019. Most of the evidence in the case is undisputed:

  • 1. The parties have known each other since 1986. They formed a relationship, producing three children: Shannon Farrell, Oslyn Farrell, and Odlyn Farrell. The claimant's earlier son, Clint Allen, was also a child of the family. The parties married on 20 th May 2006 at the All Saints Anglican Church. 1

  • 2. On 7 th September 2000, the defendant obtained the parcel of land 2 comprising the property as a gift under the Will of his grandfather, the late Charles Farrell, who died in New York in 1991. A three-bedroom, two-bathroom stone/concrete house now stands on that parcel of land, which they occupied since May 2006, and the claimant and their children continue to occupy to this present time.

  • 3. The defendant stated that during the construction of the house, he obtained a gift of EC$70,000.00 from his mother, Ms. Audrey James, who then lived in England to the present. His aunt, Mrs. Icilma Farrell and his uncle, Winston Farrell, both residing in the United States, sent him EC$15,000.00 and EC$10,000.00, respectively, to assist in constructing his house. His aunt also supplied him with substantial materials such as $1,500.00 cement building blocks, large amounts of aggregate, etc. The claimant admitted in cross-examination that the defendant's mother and aunt did assist with the construction; however, she did not say how much but indicated they did so because of her and the children.

  • 4. The house was built piecemeal over a period of five years between 2000 and 2005. He had about $75,000.00 saved up in the Antigua Commercial Bank then. When the construction began in 2000, the defendant secured the services of Elrie Farrell, an architect; Carlton Spencer, a backhoe operator who dug the foundation; Enoch Simon, a carpenter; and Daren Strand, who did the electrical work and paid them out of his own resources. The claimant admitted during cross-examination that the defendant paid when they were doing the foundation and paid four workmen to build up the body of the house.

  • 5. In 2006, the defendant had a mortgage loan with RBTT Bank Caribbean Limited (formerly Caribbean Banking Corporation Limited) secured by a charge on the property. On 27 th February 2008, the charge was transferred to the Royal Bank of Canada in consideration of $162,000.00 with a principal sum of $151,873 and interest of $4,370.82 owing. On the same date, the defendant, as the charger, signed a Variation of Charge to Royal Bank of Canada from $161,000.00 to $241,000.00 with a monthly repayment of $1,761.00, and the claimant and her son, Clint Allen, signed as guarantors. 3

  • 6. The claimant was employed at Medical Benefits as a supervisor, and the monthly mortgage payments were deducted directly from my salary and paid to the loan account number 742-578-8 at Royal Bank of Canada. 4 Yet, the defendant never included her name on the property as a co-owner, notwithstanding that her salary alone paid the mortgage consistently every month, along with the arrears and the insurance.

  • 7. The defendant admitted in cross-examination that from 2008/2009 to the present (2020), the claimant continued to make the mortgage payments for 11 to 12 years, so she has an interest in the house. Still, although admitting that the house cannot be removed from the land, he objected to the claimant's name being put on the land. It is an inheritance and he will have to let it go among his children, including other than the claimant's children.

  • 8. The defendant stated he worked independently as a building contractor, and when the economic downturn came in late 2008 to 2009, the claimant agreed that because she earned a steady salary, she would pay the mortgage sum of $1,761.00 per month and that he would pay for all other expenses such as utilities, groceries and all school fees for Oslyn Farrell during her tenure at the Antigua Hospitality Training Institute which amounted to $1,200.00 per term. Oslyn Farrell attended the Hospitality Centre for three years.

  • 9. During cross-examination, the claimant admitted that the defendant used to pay the electricity bills; however, after he moved out of the marital home, he said who was occupying the house must pay the bills. She also acknowledged that even when the...

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