Chin v Chin
| Jurisdiction | UK Non-devolved |
| Judge | Lord Scott of Foscote |
| Judgment Date | 12 February 2001 |
| Neutral Citation | [2001] UKPC 7 |
| Docket Number | Appeal No. 61 of 1999 |
| Court | Privy Council |
| Date | 12 February 2001 |
[2001] UKPC 7
Present at the hearing:-
Lord Clyde
Lord Hutton
Lord Hobhouse of Woodborough
Lord Millett
Lord Scott of Foscote
Privy Council
[Delivered by Lord Scott of Foscote]
This is an appeal from the judgment of the Court of Appeal of Jamaica (Forte, Downer and Harrison JJA) delivered on 10th May 1999 allowing the appeal of the above named respondent (Mrs Chin) from the judgment of Panton J of 18th October 1996 in the Supreme Court of Jamaica. Their Lordships have come to the conclusion that the case ought to be remitted to the Supreme Court for a re-trial. In the circumstances it is desirable that their Lordships should say no more about the merits of the case than is necessary to explain the advice to remit and to draw attention to the particular factual issues on which findings by the trial judge are necessary.
The case relates to the ownership of a company, Lasco Foods Ltd. The company has 250,000 issued shares of $1 each. One of these shares stands in the name of Mrs Chin. The other 249,999 shares stand in the name of the appellant, Mr Chin. As their names in this litigation indicate, Mr Chin and Mrs Chin were at one time married to one another. Their relationship predated their marriage. The marriage took place on 22nd February 1986 but they had been intimate friends for some time and had had a child born on 19th October 1980. The marriage was relatively short lived. A Decree Nisi of divorce was granted on 4th February 1993; a Decree Absolute was granted on 18th February 1994.
The breakdown in the marital relationship between the parties led to property disputes. On 9th December 1993 Mrs Chin issued an originating summons under section 16 of the Married Women's Property Act asking the court to decide what were the respective interests of herself and Mr Chin in Lasco Foods Ltd. The summons asked similar questions about other items of property but nothing now turns on those.
Mrs Chin swore an affidavit on 31st January 1994. In paragraph 17 she claimed that she was beneficially entitled to one half of the value of the company. She said that originally she and Mr Chin had each held one share in the company, that she had managed the company and "at all material times … believed that [her] husband and [herself] were working as joint owners of the company …" (para 13). Her affidavit was relatively short and contained very little in the way of detail.
Mr Chin swore an affidavit in reply on 2nd December 1994. He said that Mrs Chin had been merely an employee of the company. He said he had offered her the position of manager of the company at the same salary as that which she had been receiving from her previous employers, Touche Ross (para 8). He said that 249,999 shares in the company had been allotted to him and only one to Mrs Chin. He said that Mrs Chin had been well aware of this (para 9). In paragraph 24 of his affidavit he said:
"… I deny that the Applicant is entitled to one half of the value of Lasco Foods Limited and her only interest is that of a shareholder owning 1 share which I gave to the Applicant."
Mrs Chin swore an affidavit in answer on 22nd June 1995. In this affidavit she set out her case in some detail. She said that she and Mr Chin had together taken part in the negotiations that led to the setting up of the company and the acquisition of valuable business contracts. She said that she had never received a salary, but had simply drawn from the company sums she from time to time needed (para 44). She said that "it was always our intention to own the company equally and for me to operate the company as Managing Director" (para 22). She said that the original allotment of shares had been one each to her and Mr Chin and that "The allotment of these additional shares to himself were done without my knowledge and contrary to the conditions under the Articles of Association" (para 28).
The affidavit evidence was completed by an affidavit sworn by Mr Chin on 26th October 1995. He agreed that Mrs Chin had been with him at some of the negotiations relating to the setting-up of the company but said that she had been present simply as the prospective manager of the business rather than as a prospective joint owner (paras 5 to 13). He said that the allotment to him of the additional shares had been authorised by a resolution passed by Mrs Chin and himself at a meeting of the Board of Directors of the company (para 22) and that he had never at any time had the intention of giving Mrs Chin a shareholding in the company equal to his (para 32). He repeated that she was simply a salaried employee. He did, however, say, in paragraph 34, that "… the Applicant did not actually receive each month a regular monthly salary", and went on to say that her drawings had been excessive and unauthorised.
The documents exhibited to the affidavits included a number of financial statements, audited accounts, and entries in the company's Minutes book.
The affidavits showed clearly enough that the issue between the parties was whether they had intended that Mrs Chin...
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