Allan Richard Bryan Gail v Sherry-Anne Padmore
| Jurisdiction | Barbados |
| Judge | Mr. Justice Cecil N. McCarthy |
| Judgment Date | 30 May 2023 |
| Neutral Citation | BB 2023 HC 18 |
| Docket Number | Claim No. CV 450 of 2021 |
| Court | High Court (Barbados) |
the Honourable Mr. Justice Cecil N. McCarthy, Judge of the High Court
Claim No. CV 450 of 2021
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
(Civil Division)
Mr. Anderson N. Yearwood of the Firm of Yearwood & Boyce, in association with Mr. Leslie Haynes KC for the Claimants
Mr. Roger C. Forde KC in association with Ms. Vere P. Brathwaite and René Forde for the Defendant
DECISION
Sir Anthony Theophilus Biyan (hereafter called “Sir Anthony” or “the deceased”) formerly of No. 1 Astoria Court, Astoria in the parish of Saint George, died on 5 June 2020.
Sir Anthony was a shrewd businessman who had accumulated significant assets. In a statement given to the Police as part of a complaint against one of Sir Anthony's sons, the defendant said that Sir Anthony was the major shareholder of Barbados Broadcasting Services Limited (“BBS”), the owner of the Advocate Publishers (2000) Inc (“the Advocate”) and Action Publishing, which built twenty (20) townhouses at Palm Villas, Astoria, St. George. The defendant said the family house was in Sir Anthony's name while the other property was owned by various companies of which he was the major shareholder. Additionally, Sir Anthony owned several million dollars' worth of bonds held with the Central Bank of Barbados and was the joint holder of the premium savings account which contained approximately $5,000,000 at his death. It is therefore not surprising that several persons claim an interest in his estate.
This case is not primarily about those companies but concerns the fight for the proceeds of the joint bank account held at the Bank of Nova Scotia. Specifically, it involves a determination of who is entitled to the sum of $4,836,332.30 withdrawn from the joint account (previously held jointly by Sir Anthony, the first claimant, the second claimant and the defendant) by the defendant in these proceedings on 8 June 2020, one working day after the deceased's death.
On 25 March 2019, three days before opening the joint deposit account on 28 March 2019, Sir Anthony made his last will and testament. Among other things, Sir Anthony made the following dispositions:
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1. He devised and bequeathed his property at Number 1 Astoria Court to the Advocate and directed the Advocate to maintain the grounds and dwelling house in good repair and condition;
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2. He devised and bequeathed Lot 5 “Palm Villas” Astoria, St. George to the second claimant and Lot 45 Ridge View Estate, Christ Church to the defendant;
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3. He made four (4) bequests of bonds, held with the Central Bank of Barbados, of the value of $2,000,000 each, to the first and second claimants, the defendant and another son who is not a party to this suit;
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4. In addition to the bonds, he made specific bequests to his grandchildren totalling $1,030,00.00;
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5. Additionally, he left his entire residuary estate to the Advocate.
The issue for resolution is whether the joint account holders or any of them are entitled beneficially by survivorship to the funds in the joint account, or whether the funds are to be held on resulting trust for Sir Anthony's estate.
On 26 January 2023, I gave an oral decision in the matter in which I held that the monies belonged to the estate of the deceased and not the joint account holders.
The first and second claimants are the son and grandson, respectively, of the deceased. The defendant is an employee of BBS, a director of the Advocate, and one of the executors named in the will of the deceased. She also claims to be the spouse of the deceased.
On Monday 8 th day of June 2020, one working day after the deceased's death, the defendant withdrew the sum of $4,836,332.34 from the joint banking account number 9005119 with the Bank of Nova Scotia, and placed it on her personal account with the said bank.
This matter was first referred to me in September 2021, as an application for injunctive relief with the date of hearing set for 28 October 2021. In examining the documents on file, it was noticed that there was a mareva injunction that was granted at an ex parte hearing on 23 June 2021.
The file also revealed that the judge who granted the injunction was asked to recuse herself from any further hearing of the matter, which she did on 31 July 2021.
The injunction, among other things, restrained the defendant from dealing with or diminishing the value of any assets which are in Barbados, whether in her name or not, or whether solely or jointly owned, up to the value of $4,836,332.34 (i.e., the amount withdrawn from the deceased's bank account by the defendant).
The injunction also attached to the bank accounts of a number of companies in which the defendant was a director. These were:
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(a) Checking Account in the name of The Advocate held with CIBC First Caribbean International Bank;
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(b) Checking Account in the name of Action Publishers Limited held with CIBC First Caribbean Bank;
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(c) Checking Account in the name of BBS Limited held with CIBC First Caribbean.
I brought the matter forward from its scheduled hearing date of 28 October 2021 to 15 September 2021, when it was first heard. Mrs. Ashley Waithe, attorney-at-law, appeared at the hearing and said that she held a watching brief for the Barbados Advocate Publishers (2000) Inc. After initial objection by the parties, it was agreed that she be allowed to watch the hearing. At that first hearing before me, Mr. Roger Forde KC lead counsel for the defendant, informed Mrs. Waithe that she should make an application to have the injunction affecting the Advocate discharged. The Court endorsed this proposal. Despite this advice, no application for a discharge of injunction affecting the Advocate has even been received by the Court.
However, after hearing the matter on the 15 th, 20 th and 22 nd of September 2021, I ordered that the injunction be varied first to specifically indicate that it should affect assets of the defendant whether owned solely or jointly with others. Secondly, the value of the defendant's assets affected by the order was reduced to $3,224,221.56 on 7 October 2021. The claimants had previously indicated to the Court that they were claiming two-thirds of the money withdrawn from Sir Anthony's account.
The effect of the court's order was that it facilitated the defendant dealing with her assets and her bank accounts, as well as the company accounts affected by the order, over the sum injuncted.
On 20 January 2022, Mr. Vere Brathwaite, junior counsel for the defendant paid the sum of $3,224,221.56 into the court registry without notifying the Court. The Court discovered this on 21 December 2022, when it scheduled a hearing, among other things, to indicate when the decision in the substantive matter would be given. On that day, the Court gave its order discharging the injunction. It should be noted that the order had provided that on payment of the sum of $3,224,221.56, the injunction shall be discharged. The failure of counsel for the defendant and the defendant to inform the court of the payment into the court meant that the injunction remained in force for 11 months longer than was necessary.
In or about the year 2010, according to the defendant, the deceased opened an account at the Bank of Nova Scotia, namely Account #9005119. The defendant testified that on or about the 15 July 2016, the deceased added the name of the defendant to the said account at the Bank of Nova Scotia and thereby, she became a joint account holder and an authorised signatory pursuant to the Personal Financial Services Agreement (hereinafter called “the PFSA”). This agreement was made between the Bank of Nova Scotia of the One Part and the deceased of the Other Part. The reason for the addition of the name of the defendant is a fact in issue in these proceedings.
On the 28 th March 2019, the deceased added the names of the first and second claimants to the said account and as such, they became authorised signatories pursuant to the PFSA.
The claimants admit that they made no contribution to the proceeds of the said account. The defendant contends that she made some contribution to the said account.
The claimants have not produced the PFSA in its entirety. However, they seek to rely on the same. The claimants refer to page 8 of the PFSA, which is exhibited as ARB-10 of the Joint Affidavit of the claimants, which expressly states that upon death of the account holder, the proceeds of the account will be disbursed to your estate or otherwise required by law. Further, the reference at page 11 of the PFSA provides that where there is any ownership agreement the deposit would be automatically be in tenancy with the right of survivorship.
By a Will dated 25 March 2019, the deceased named the defendant as one of the executors thereof. Legal proceedings have been filed, namely CV 85 of 2021, whereby the first claimant and two other sons of the deceased have challenged the validity of the Will, however, the matter has not yet been determined by the High Court.
The remaining balance on the deceased's account, sometime after 15 June 2020, was withdrawn from the deceased's premium account and placed in the defendant's personal account at the Bank of Nova Scotia.
By claim form filed on 16 June 2021, which was subsequently amended and filed on 21 October 2021, the claimants claimed against the defendant the following relief:
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“(a) That a full account be given in relation to the funds withdrawn from account number 9005119 held with Bank of Nova Scotia subsequent to the death of the Deceased;
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(b) That the amounts due and owing to the Claimants that were withdrawn from account number 9005119 by the Defendant without the...
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