Mildred Agnita Kirwan Claimant v Neville Sylvester Kirwan Defendant [ECSC]
| Jurisdiction | Montserrat |
| Judge | REDHEAD J. (Ag) |
| Judgment Date | 19 January 2012 |
| Judgment citation (vLex) | [2012] ECSC J0119-4 |
| Docket Number | CLAIM NO. MNIHCV2011/0007 |
| Court | High Court (Montserrat) |
| Date | 19 January 2012 |
IN THE EASTERN CARIBBEAN COURT
HIGH COURT OF JUSTICE
(CIVIL)
CLAIM NO. MNIHCV2011/0007
Mr. David Brandt for the claimant
Mr. Karl Markham for the defendant, Miss Gerald with him
REDHEAD J. (Ag) The parties to this action were married in 1985 after living together for about 12 years. The relationship produced three children, two of whom are adults and one is 16 years old. At the time of the marriage the parties lived in a one bedroom house at Harris. The claimant in her affidavit swore that they were very poor. They worked very hard because they wanted to improve their lot in life. They did not want their children to go through what they had gone through. In other words, she and the defendant wanted their children to have a better life than they had when they began their lives together.
The claimant swore in her affidavit that at the beginning of their lives together neither of them had a trade or profession. The defendant began to learn a trade as a plumber. The defendant disputes this assertion and swore that he began his trade as a plumber at the age of seventeen years and was working as a plumber since 1973.
I make the observation that the parties got married on 30 th March 1985. If they lived together for twelve years before marriage they would have been living together in or about 1973. In 1973 the defendant would have been about 24 years.
The claimant swore that she and the defendant cultivated plots of land during week days. They planted vegetables, some of which they consumed and the rest she sold at the Public Market. The money earned from the sale of the vegetables was used for the payment of household expenses. The balance was saved in a bank account which was in the sole name of the defendant.
They, in addition to their cultivating crops, reared animals which were slaughtered and sold some of the meat. Mrs. Kirwan swore that some of the money from the cultivation, along with some help from fellow villagers, they built a house at Harris. From 1978 she began employment with the government of Montserrat and from 1979 with the Montserrat Electricity Services as a clerk. She swore that she and the defendant saved together and from their savings bought a bar at Harris in which alcoholic beverages were sold. After their regular hours of work, they took turns at running the bar which remained opened up to midnight at times. She also sold snacks and drinks at public functions. With the monies derived from the sale of drinks at the bar, they replenished the stock, the balance was saved. They never paid themselves a salary. They bought a fishing boat from their joint savings.
In 1982 they brought a plot of land, Block 3/1 Parcel 52. In 1983 they built a house on the said parcel of land. They obtained a mortgage to finance the building of the house. The conveyance of the plot of land was taken in the defendant's name. The house was rented to students of the American University of the Caribbean (AUC). The house comprised of an upstairs and downstairs. The upstairs was rented for US$600.00 per month and the downstairs was rented for US$400.00 per month.
In her affidavit, the claimant swore that the rental was from about 1985 to about 1989. The money went to the Building Society to pay the mortgage on the house. The parties then moved to occupy the upstairs of the matrimonial home. The downstairs was then rented for EC$450.00 for about 8 to 10 years. Mrs. Kirwan swore that the EC$450.00 rental was used to finance the mortgage payments on the house, the balance was put in a bank. The claimant said that she personally met the household expenses from her income in accordance with an agreement between her and the defendant.
In 1996 the parties purchased a parcel of land Block 12/4 Parcel 84 at Olveston and built a matrimonial home on this lot because according to Mrs. Kirwan, she and the defendant had to vacate the matrimonial home at Amersham on account of the volcanic eruptions. Mrs. Kirwan swore that the funding for the building of the house at Olveston was made possible from their savings, rent from the Amersham house, hurricane settlement insurance claim, sale of agricultural produce and maroon type help from their friends.
The dwelling house in Olveston is rented through an agency, Tradewinds Real Estate. The rental agreement was entered into with Trade Winds by the claimant and her husband. The monies collected by the agent for rental were given to the claimant who deposited into a bank account number 0116250 at the Bank of Montserrat after deductions for services and agency fees as agreed to by the parties. There is a lease agreement between Trade Winds and the parties to that effect dated 1 st January 2008 (Exhibit 2). The claimant averred that she used to collect the proceeds from the rental of the said property after the deductions and deposited the balance into an account no 7084790 in Bank of Montserrat in the joint names of her and the defendant. On June 8, 2008 she went to collect the rent from the agency when she was presented with a letter from the agent signed by the solicitor instructing the agency to discontinue making payments to her. From then, the defendant alone controlled the rental for the said house.
In that letter the solicitor wrote in part as follows:
"Mrs. Susan Edgecombe
Tradewinds Real Estate Limited
P.O. Box 365
Olveston
Montserrat
Dear Mrs. Edgecombe,
…….. I confirm that Mr. Kirwan is the sole owner of the property, located at Olveston recorded in the Land Register as 12/4/83 Beachettes, with respect to which Tradewinds has been engaged to act as a rental agent. Mr. Kirwan has instructed me to confirm to you that all rents collected by you from the tenants thereof must be paid to him personally and no other person…
Yours sincerely
John C. Kelsick"
I have difficulty in appreciating how solicitor for the defendant could make the determination that the property in question, that the defendant is the sole owner of the property. Particularly in light of the fact of exhibit 2, the lease agreement which stipulates in part:
"This lease is renewed this 1 day of Jan 2008 between Tradewinds Real Estate, agent for Mr. and Mrs. Neville Kirwan, lessor…"
This to my mind raises a presumption that the property belongs to both parties.
The claimant swore that by agreement she and the defendant purchased a parcel of land Block 13/22 Parcel 055 Lawyers Mountain on June 18, 1999 to build a house for speculation. At first the land was used for agricultural purpose until sometime in March 2008. The defendant re-registered the said land in the names of his aunt Olivia Kirwan and himself. The dwelling house was eventually built on the said land funded by a loan from Bank of Montserrat, from their joint funds and funds collected from the rental of the house at Olveston.
On 13 th September 2001, the claimant and defendant formed a company, Kirwan's Plumbing Services. She was the manager of the company and performed administrative duties. The main business of the company was the sale of solar heaters and plumbing services. A joint account number 0111767 at the Bank of Montserrat in the names of the defendant and the claimant was opened in relation to Kirwan's Plumbing Services. The claimant swore that the defendant closed the account for the Plumbing Account without her prior knowledge and withdrew the funds, to the best of her knowledge.
The claimant swore that from their joint savings, she and the defendant bought shares in the Bank of Montserrat in or about 1988. In 2001 the defendant had the shares re-issued-I suppose that she meant re-registered— to reflect changes as follows:
Neville Kirwan and Mildred Kirwan 400 shares — February 2001
Neville Kirwan and Lyndon Kirwan 500 shares — February 2001
Neville Kirwan and Jeshree Kirwan 500 shares — February 2001
Neville Kirwan 90 shares — November 2007
Neville Kirwan 100 shares — January 2003.
The claimant deposed that the defendant has collected the dividends paid on all of the above-mentioned shares and has converted some of the dividends into other shares without her knowledge.
The claimant averred that she and the defendant invested the sum of EC$500,000.00 with CLICO International in 2003 from funds acquired from business sales, balance from insurance settlement claim from the dwelling house in Amersham personally deposited at St. Patrick's Credit Union. The principal and interest were re-invested each year as it matured. The claimant also swore that she and the defendant invested EC$50,000.00 with British American from profits derived from their joint business enterprise.
The claimant swore that on 27 th March 2008 the defendant wrote to CLICO to request CLICO to transfer the funds to his personal bank account number 7008137 at Bank of Montserrat. The letter is in the following terms:-
"Chairman
CLICO International Life Insurance Ltd.
CLICO Building
Whitepark Road
P.O. Box 713C
Bridgetown
Barbados
Dear Sir,
Policy #AIP000054Neville Kirwan and/or Mildred Kirwan
I write in respect of the above policy with your insurance company. I wish to surrender in full the said policy with immediate effect. I am aware that the full interest will not accrue because of this action.
Kindly forward the funds to my account No. 700-8137 held at Bank of Montserrat Ltd, Brades Montserrat.
I enclose a copy of the renewal certificate for ease [of] reference.
Yours truly
Neville Kirwan"
Mrs. Kirwan deposed that from their joint endeavours they placed $40,000.00 of which there is $25,000.00 presently on a fixed deposit at Bank of Nova Scotia in Antigua.
The claimant has been employed by Montserrat Electricity Services for the past 31 years and has risen to the position of Administrative Assistant at a salary of...
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