Miller v Miller (Jamaica)

JurisdictionUK Non-devolved
JudgeLord Wilson
Judgment Date06 July 2017
Neutral Citation[2017] UKPC 21
Docket NumberAppeal No 0074 of 2016
CourtPrivy Council
Date06 July 2017

[2017] UKPC 21

Privy Council

From the Court of Appeal Jamaica

before

Lord Kerr

Lord Clarke

Lord Wilson

Lord Carnwath

Lord Hughes

Appeal No 0074 of 2016

Miller and another
(Appellants)
and
Miller and another
(Respondents) (Jamaica)

Appellants

Ransford Braham QC

(Instructed by Axiom Stone Solicitors)

Respondents

B St Michael Hylton QC

Melissa S McLeod

(Instructed by Myers Fletcher & Gordon Solicitors)

Heard on 15 June 2017

Lord Wilson
1

Although nominally both a second appellant and a second respondent are parties to these proceedings, the active appellant is the husband and the active respondent is the wife, as it will be convenient to describe them notwithstanding their divorce. All references to "the parties" will be a reference only to them.

2

The subject of the dispute between them is a property at Yardley Chase in the parish of Saint Elizabeth ("Yardley Chase"). It was bought in 2004 and placed in the joint names of the parties "to hold the same unto [their] use". It remains in their joint names. A hotel was then built there. It was damaged by Hurricane Dean in 2007 and was thereafter reconstructed. The husband continues to live there and appears to continue to run a hotel business there.

3

In March 2009 the wife issued a claim in the Supreme Court for a declaration that she was the sole beneficial owner of Yardley Chase. On 9 January 2012 Donald O McIntosh J dismissed her claim and ordered her to assign to the husband her legal interest and any beneficial interest in it. On 17 July 2015 the Court of Appeal (Dukharan JA, Brooks JA who gave the only substantive judgment, and McDonald-Bishop JA (Ag)) allowed the wife's appeal; ruled that there was no reason to depart from the original intention of the parties, which had been to hold the beneficial interest in Yardley Chase in equal shares; and so ordered that, subject to the grant of an option to the husband to buy the wife's share and also to the imposition upon him of a duty to account to her for the benefit of his sole occupation of it since 2007, Yardley Chase should be sold and the proceeds divided equally between them.

4

Against the order of the Court of Appeal the husband appeals to the Board. He seeks the restoration of the order of McIntosh J but, at the oral hearing of the appeal, Mr Braham QC on his behalf added a request, which became his fall-back position, that the Board should order the wife's claim to be re-tried, presumably (in the light of what follows) by a judge other than McIntosh J.

5

Both parties are Jamaican citizens. But they met in Hartford, Connecticut; their marriage in 1993 took place there; and they lived there throughout their marriage. They had three children, now aged 21, 19 and 15. During most of the marriage the husband ran a motor repair business, which included some selling of restored cars, in Hartford; and the wife worked in the loans department of the Bank of America, where she secured significant promotions, indeed in 2002 up to the level of a mortgage loan officer which carried a substantial salary.

6

In 2007 the marriage broke down and the wife moved with the children to a home in the state of Georgia, which the parties had recently bought. It seems that she continues to live there and that the children continue to make their base with her there.

7

In 2007 the wife issued proceedings for divorce in the Superior Court in Hartford. On 1 December 2008 that court granted a decree of divorce. Importantly for present purposes, attorneys for the wife and the husband joined in presenting to that court at that hearing a Separation Agreement to which that date was also ascribed. Having heard their submissions and having received oral evidence from each of the parties, the judge found the agreement to be fair and he incorporated it into the court's judgment by reference.

8

At that hearing the judge noted that there was one major dispute between the parties which had not been resolved and which had therefore been excluded from the Separation Agreement. This was their dispute in relation to the present and future ownership of Yardley Chase. He was told that there were complex legal issues in relation to it and that, in the absence of agreement, the dispute would be presented to the courts of Jamaica.

9

The Separation Agreement makes clear that the attorneys who appeared before the court on 1 December 2008 each gave full separate advice to the husband and wife in relation to it; indeed the parties executed the agreement in front of their respective attorneys acting as commissioners.

10

In effect the Separation Agreement provided for a clean break between the parties. It provided for the division between them of five properties:

(a) 7 Shepard Road, Bloomfield, Connecticut. This was the final matrimonial home, vested in the parties' joint names. The agreement provided that it should become the wife's sole property, subject to three heavy mortgages.

(b) 269 Tower Avenue, Hartford. These were the premises at which the husband had conducted his garage business. The agreement provided that it should become his sole property. It was unmortgaged and, at any rate by the time of the agreement, it was generating rental income.

(c) 14 Lilac Street, East Hartford. This was in the wife's sole name. It was under mortgage but generated rental income. The agreement provided that it should remain her sole property.

(d) 4874 Planters Walk, Douglasville. This was the home in Georgia to which the wife and children had recently moved. It was held in joint names subject to heavy mortgages. The agreement provided that, subject to them, it should become the wife's sole property.

(e) Top Hill, St Elizabeth, Jamaica. This was a house in the joint names of the parties. The agreement provided that they should each transfer their interest in it to a trustee on trust for the three children but that the husband, who at that time was living there, should be entitled to continue to live in part of it for one further year.

11

There was an interesting provision in the Separation Agreement for the husband to pay child support in accordance with state guidelines. It is interesting because it provided as follows:

"For purposes of calculating child support, the parties shall impute annual income of $27,500 to the … Husband, and $120,000 annually to the …Wife."

So it certainly seems that, by the end of the marriage (and, so she contends, during most of it) the wife was earning vastly more than was the husband. Indeed early in 2008 the husband had issued in the proceedings a claim for alimony against the wife. The agreement also included a mechanism for the husband to pay the child support out of the rental income which was expected to continue to be generated by the commercial premises at 269 Tower Avenue. In fact, however, the husband sold the premises within two months of the date of the agreement; and the Court of Appeal regarded it as significant that he had entirely failed to pay the agreed child support.

12

In the proceedings in relation to Yardley Chase which she issued shortly after execution of the Separation Agreement, the wife contended that:

(a) the purchase price of the vacant land in 2004 was US$16k, which she provided out of her income;

(b) it was the husband who went to Jamaica and managed the purchase;

(c) between 2004 and 2006 the hotel was built;

(d) the cost of constructing and equipping it was US$700k, which she funded by means of a loan, still outstanding, of US$400k from her uncle and otherwise out of her income;

(e) in 2006 the parties began to manage the hotel through a company which they had set up; and

(f) in 2007 the husband went to live in Jamaica and, through a different company set up by himself, took control of the management of the hotel.

The wife also relied on the fact that, in breach both of an agreement in the proceedings in Connecticut dated 7 November 2007 and of an order of the Jamaican court dated 11 January 2011, the husband failed to provide an account of the income derived by him from the hotel from 2007 onwards. By the end of the hearing before McIntosh J, she had adjusted the claim which she had made to sole beneficial ownership of Yardley Chase so as to become a claim for a declaration that it was held as to 80% for her and as to 20% for the husband.

13

By contrast the husband contended that:

(a) at the time of the purchase of the land at Yardley Chase in 2004 he and the wife intended to own the property equally;

(b) apart from a contribution by the wife out of her own resources of no more than US$20k and a loan of US$127k which had been taken out by both of them (perhaps, so he conceded, as early as 2002) from the bank which...

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