Barclays Bank International Ltd v Mapp; Mapp Claimant

• Jurisdiction: Barbados
• Court: High Court (Barbados)
• Judge: Douglas, J.
• Judgment Date: 18 July 1986
• Neutral Citation: BB 1986 HC 54
• Docket Number: No. 287 of 1984
• Date: 18 July 1986

High Court

Douglas, C.J.

No. 287 of 1984

Barclays Bank International Ltd.

and

Mapp; Mapp Claimant

H. deB. Forde, Q.C. and Mr. S.R. Hinkson for the plaintiff.

Colin Williams for the Claimant.

The defendant did not appear and was not represented.

Family law - Husband and wife — Matrimonial property — Plaintiff bank filed a writ against defendant, its customer, for moneys due under a mortgage — Judgment entered for the plaintiff bank — The claimant, wife of the defendant, sought a declaration that she was beneficially entitled to half share or interest in the mortgaged matrimonial home — Claimant contributed substantially to the building of the matrimonial home and remained in continuous occupation of it — Court held that claimant was entitled to a declaration that the defendant was a trustee for her to the extent of half share in the property.

Equity - Priority of claims — Whether claimant entitled to claim in priority to the plaintiff — Conflicting equities — Plaintiff filed a writ against the defendant its customer claiming that the defendant was indebted to it for a sum of money — Plaintiff bank claimed sale of the property in default of payment — Judgment was entered for the plaintiff — Claimant, the defendant's wife sought a declaration that she was beneficially entitled to half share in the mortgaged matrimonial home — Court noted that equity aids the vigilant and not the indolent — Claimant had done nothing to assert her rights in the property prior to filing her claim — She acquiesced in the removal of the title deeds from her home and made no enquiries as to their whereabouts — Such a course of conduct deprives the claimant of any right to priority over the Bank — Order made that on any sale of the mortgaged premises, the bank's claim would rank first.

Douglas, J.

1 The plaintiff (“the Bank”) filed its writ against the defendant on the 7 ^th of April 1981. The Bank claimed that the defendant, its customer, was indebted to it in the sum of $104,113.72 together with interest thereon at 11% per annum from the 17 ^th of February 1981 until payment. The Bank also pleaded that by a memorandum of deposit of title deeds it held an equitable mortgage on a parcel of land at Regency Park, Christ Church, by way of security for the payment and discharge on demand of all moneys and liabilities owing by the defendant on any account. The Bank claimed sale of the property in default of payment of the sum due and owing.

2 On the 4 ^th of May, 1981 judgment was entered for the Bank ordering payment of the sum of $104,113.72 and interest and secondly that in default of payment within three months the property be advertised and appraised in accordance with Order 37 of the Rules of the Supreme Court, 1958.

3 On the 21 ^st of January 1982, the claimant filed her claim. In it she states that from about 1947 she and the defendant carried on a grocery business at Greens, St. George, for Mr. James A. Tudor. In the following year they started to live together as man and wife. In 1950 they took over the business entirely. In 1952 they were married. In 1954 they opened another grocery business at Eagle Hall, St. Michael. In 1961 the defendant acquired a property at Dover, Christ Church out of the profits of the business. The property was sold in 1962 and the defendant bought the land at Regency Park the subject matter of this suit. The matrimonial home was built there and the defendant and the claimant lived there until he left the claimant in 1973.

4 The claimant states that she retired from active participation in the business in 1969. She also says that the defendant built and sold several properties about 15 — between 1962 and 1971. The claimant states that since 1964 she has been in continuous occupation of the property in Regency Park.

5 On the 17 ^th of March, 1976 the claimant obtained a decree nisi of dissolution of her marriage with the defendant.

6 The claimant claims:–

• i. A Declaration that she is beneficially entitled in equity to a half share or interest (or such other share or interest as the court determines) in the said property which is the subject matter of these proceedings;

• ii. A Declaration that the plaintiff took its said mortgage over the said property with notice of whatever beneficial and equitable share or interest the claimant had in the said property;

• iii. A Declaration that she is beneficially entitled to her said share or interest in the said property free of the said mortgage in favour of the plaintiff.

7 In her evidence the claimant says that the title deeds for the property were taken from the safe at Regency Park to be put in the safe at Eagle Hall. She knew he dealt with the Bank. In 1968 there was no dispute between them. She says:–

“I left everything up to him, being the man. I trusted Richard. I don't know how he got money to run the businesses. I don't know if he borrowed money or how he repaid it. He ran it as if he was the sole owner …I didn't know what he did with the deeds. I never inquired. I trusted him He never consulted me about borrowing on the title deeds.”

8 Mr. Colin Williams cites Rimmer v. Rimmer [1952] 2 All E.R. 863. That was a case brought under the Married Women's Property Act, 1882 of the United Kingdom. The husband and the wife had both contributed to the purchase of the house and the payment of the mortgage. Romer L.J. said at page 870:–

“It seems to me that the only general principles which emerge from our decision are, first, that cases between husband and wife ought not to be governed by the same strict considerations, both at law and in equity, as are commonly applied to the ascertainment of the respective rights of strangers when each of them contributes to the purchase price of property, and secondly, that the old-established doctrine that equity leans towards equality is peculiarly applicable to disputes of the character...