Waterman v Belgrave

• Jurisdiction: Barbados
• Court: High Court (Barbados)
• Judge: Reifer, J.
• Judgment Date: 10 February 2016
• Neutral Citation: BB 2016 HC 4
• Docket Number: 1430 of 2005
• Date: 10 February 2016

Waterman

and

Belgrave

Reifer, J.

1430 of 2005

High Court

Property Law - Whether the defendant was a licensee or beneficiary of an equitable interest in the property.

Evidence - Whether the affidavit of a witness who was unable to attend court should be read at trial — Proprietary estoppel — Representation or assurance — Act of detrimental reliance — Unconscionable denial of the claimant's right — Order 28, Rule 2(1) of the old rules of the Supreme Court.

Appearances:

Mr. Ernest Jackman Attorney-at-Law for the plaintiff

Mrs. Beverley Franklin Brewer and Ms. Mya Daniel Attorneys-at-Law for the defendant

Reifer, J.

INTRODUCTION

1 Family disputes over property are invariably bitter and often doggedly contentious. This matter does not disappoint in that regard. The importance of and need for mediation, especially court ordered mandatory mediation, is especially evident in cases of this nature.

HISTORY

2 This matter has a long and difficult history resistant to attempts at mediation; an extremely bitter tale of sibling rivalry.

3 It commenced as an Urgent Application by way of Originating Summons under the ‘old’ Rules of the Supreme Court filed July 18th 2005 by the plaintiff Neale Emille Waterman (Executor of the Estate of Stella Isada Belgrave, Deceased), principally to “… recover possession of “Gertdale”, Lot 1 Stanmore Crescent, Black Rock in the parish of Saint Michael and Lot 2 Near Retreat Terrace, Black Rock also in the parish of Saint Michael in this Island, on the ground that he is entitled to possession and that the persons in occupation are in occupation without licence or consent.”

4 There were two Respondents to the first action, the defendant in this action Judy Belgrave and the third sibling, Julian Anthony Waterman.

5 This followed a Notice to Quit served on the First defendant in April 2004. The inference to be drawn here is that the plaintiff deemed the defendant (and his other sibling) to be a mere licensee and proceeded to terminate/revoke that licence.

6 The two (2) parties to this action are two of the three children and beneficiaries of the Estate of Stella Isada Belgrave, the plaintiff being the duly qualified executor of her Last Will and Testament dated June 2nd 1993.

7 Stella Isada Belgrave died on the 2nd December 2001 in this Island. Letters Testamentary were issued to the plaintiff in November 2003.

8 The defendant was and remains in possession of the top floor of the premises situate at Lot 2 Near Retreat Terrace, Black Rock, St. Michael in this Island, where she has resided with her two sons since 1987.

9 The Second defendant to the Originating Summons was originally in possession of the bottom floor, but gave up possession after service of this action.

10 There is no evidence that either party was in possession of “Gertdale”.

11 By Order dated 2006-10-17 this Court ordered this matter continued as if begun by Writ of Summons and thereafter the matter was case-managed to trial under the ‘old’ Rules of the Supreme Court.

12 The course of this action has been plagued by changes in attorneys by both parties, most significant of which being the plaintiff's which was mid-trial. There were also challenges with the incapacity and unavailability of witnesses, as well as the complication caused in this jurisdiction by transfers from the Civil jurisdiction of the Court to the Criminal.

THE PLEADINGS

13 The Writ of Summons was filed in November 2006 against only one party, Judy Elene Belgrave; the Second defendant in the first action having vacated that part of the property in his possession.

14 The plaintiff filed pursuant to his lawful authority, seeking possession and mesne profits with respect to the property situate at Lot 2 Retreat Terrace, Black Rock, Saint Michael in this Island. He pleaded that the property fell within the remainder or residue clause of the Will which provided as follows:

“I DIRECT THAT ALL THE REST RESIDUE AND REMAINDER of my estate and property of whatever kind and wheresoever situate whether real or personal in remainder or expectancy be sold and the net proceeds of such sale be divided in equal shares among my three children namely … absolutely.”

15 There was no specific devise of real property in the Will.

16 The defendant filed an Amended Defence and Counter-claim in February 2007. In her Counter-claim she sought a Declaration, inter alia, that she has an interest in the property proportionate to her contribution to the acquisition and upkeep of the property; and a further Declaration that the “plaintiff holds the property on trust for the defendant to the extent of the defendant's contribution to the acquisition and upkeep of the property and that she be paid out for the value of such interest therein.” At the end of this proceeding the defendant, however, expressed a strong determination to remain in her home of over twenty-five (25) years.

17 This claim is based on the substantive and substantial allegation of fact by the defendant, namely, that in reliance on the promise of her mother, reduced to writing by letter dated January 6 1986, she “constructed a two storey concrete bungalow on the said property with the assistance of a friend who owned his own construction business, and on completion of the construction, sometime in 1987, moved into the top storey of the house.”

18 She alleged further and significantly at paragraph 11 of the said Defence and Counterclaim that “the full cost of constructing the house was borne by the defendant with assistance from her said friend who graciously provided the equipment, materials and some funds to construct the house. The deceased, she alleges, never made any financial contribution to the construction of the property.”

19 At paragraph 17 of the Defence and Counter-Claim the defendant pleads that she “has been solely responsible for the maintenance and upkeep of the top storey”, where she had (in 2007) been residing for over 20 years rent free.

20 These allegations of fact are all strongly disputed by the plaintiff and the authenticity of the alleged letter was initially challenged, but not pursued during trial.

THE ISSUE

21 The issue raised by these pleadings directs this Court to a determination of whether the defendant was a mere licensee or whether she is the beneficiary of an equitable interest in the subject property, which is held in trust by the Estate of Stella Belgrave.

THE EVIDENCE

THE PLAINTIFF'S CASE

22 The plaintiff gave evidence in support of his claim, and after expressing an intention to call three (3) witnesses, in fact called only one (1). This, in the opinion of this Court, proved to be a significant error.

23 His evidence was that Lot 2 Stanmore Crescent was acquired by Deed of Gift by the deceased from her sister Ilene Day in 1988. In 1980 there was a wooden house on this parcel of land which was occupied by his brother Anthony Julian Waterman, but sometime between 1980 and 1987 the present house was constructed. He was obviously vague as to the date and year of construction commencement.

24 It was his evidence that the construction of that structure was financed by his mother who was at that time living and working in the United States of America and sending money home. She also inherited her brother's home in Chicago, which she sold around 1985/1986. The obvious inference to be drawn is: that she would therefore have been financially capable of building a home in Barbados during this period because she was financially solvent.

25 It is to his knowledge that his mother transferred funds from the sale of her brother's home to Barbados to his aunt Ilene Day; and it is his belief that these funds were used to fund the construction at Lot 2. The inference this Court is also being asked to draw is that these funds did not finance her day to day living for the next fourteen (14) years as she had a pension for this purpose. But later in his cross-examination he did state as follows:

“My mother did not work in Barbados after 1986. She died about 14 years later. She had another source of income. She received a pension from England. She collected rents from 3 apartments. She also paid water rates, electricity and land taxes for both properties, that is, lots 1 and 2.”

26 No evidence was led as to the quantum of this pension from England and the only evidence as to the nature of her employment was that she ‘looked after’ people in the United States. The defendant gave evidence that she has had to support her mother while she was between jobs in the United States. (See Exhibit “J.B5”, a letter from Stella Belgrave to Judy Belgrave dated December 8th 1985).

27 It can be concluded that these funds were non-existent at her death if one draws certain inferences from the evidence of the plaintiff, but there is a lack of information as to how they were spent. It however can be reasonably inferred that her pension was supplemented over the fourteen (14) years of her living in Barbados by the use of her cash fund. Or alternatively, (as the plaintiff would have us believe) that this cash fund was used in the construction of Lot 2.

28 His sister's role was to oversee the construction as his mother was overseas when the construction commenced. She also had access to bank accounts that his mother kept both in Barbados and the United States. He has knowledge of his mother's financial affairs showing that she withdrew money from various accounts in the United States and brought that money to Barbados. One document discovered by him after his mother passed away, showed an amount of $20,520.15 (presumably US) drawn on an account at Exchange National Bank of Chicago, Illinois. While this document was produced to the Court, there was no corresponding entry provided to this Court showing a deposit in Barbados.

29 As Executor, he has access to documents showing that on December 12th 1986,...