Blanchfield v Blanchfield; Blanchfield v Blanchfield

• Jurisdiction: Trinidad & Tobago
• Judge: Mohammed, J.
• Judgment Date: 19 February 2015
• Neutral Citation: TT 2015 HC 59
• Docket Number: CV 2013-04792; CV 2014-00745
• Court: High Court (Trinidad and Tobago)
• Date: 19 February 2015

High Court

Mohammed, J.

CV 2013-04792; CV 2014-00745

Blanchfield

and

Blanchfield

Blanchfield

and

Blanchfield

Appearances:

Ms. Laura Bailey for the claimant in both Claims

Ms. Rhea Sookhai for the defendant in both Claims

Civil practice and procedure - Defendant's application for summary judgment in relation to the defence to the counterclaim filed — Claimant's application to strike out parts of the defendant's affidavit and the defendant's supplemental affidavit — Whether the defendant was entitled to costs arising from the claimant's discontinuance of her claim — Whether certain paragraphs of the defendant's affidavit and the entire supplemental affidavit should be struck out — Whether the defendant is entitled to summary judgment on the counterclaim — Whether the claimant had a realistic prospect of success on her defence to the counterclaim — Whether the claimant was entitled to monthly rent for the defendant's occupation of the disputed property.

Mohammed, J.

1 Before this Court is the defendant's Application of the 20th March, 2014 for summary judgment against the claimant in relation to the Defence to the Counterclaim filed. The defendant also seeks an order for costs. Also before this Court is the claimant's Application of the 3rd June, 2014 to strike out parts of the defendant's affidavit of the 12th May, 2014 and the defendant's supplemental affidavit of the 22nd May, 2014.

2 Before proceeding any further, an appreciation of the background of this matter is necessary. The claimant is the ex-wife of the Deceased, Clyde Blanchfield (“the Deceased”) and the defendant is the widow of the Deceased. On the 21st November, 2013, the claimant filed a Fixed Date Claim Form and Statement of Case against the defendant, seeking an Order for possession of property situate at No. 9 Tenth Avenue, Bon Air Gardens, Arouca, Trinidad (“the Arouca property”) pursuant to Part 68 of the Civil Proceedings Rules 1998, as amended (“CPR”). The claimant also sought costs of the claim and such further and/or other relief as the Court sees fit.

3 In her Statement of Case, the claimant claimed that she and the Deceased are the Lessees named as joint tenants in a Deed of sub-lease of the Arouca property. She stated that she and the Deceased were previously married but later divorced. The claimant claimed that the Deceased died on the 1st September, 2013 at the said property without having severed the joint tenancy created by the Deed referred to above. Accordingly, she contended that she was now the sole owner, by operation of the doctrine of survivorship, of the leasehold interest in the Arouca property. The claimant further claimed that while the defendant, the lawful widow of the Deceased, lived with him at the said property prior to his death, she was not and never was a tenant of the claimant and has remained in occupation of the said leasehold property without the license or consent of the claimant.

4 According to the claimant, on the 1st November, 2013, the claimant's Attorney-at-Law, acting on behalf of the claimant, gave written notice to the defendant via a pre-action protocol letter informing her that the claimant was anxious to have immediate possession of the said premises and that the option was being offered to the defendant to take all the appliances and furniture from the dwelling house, inclusive of any other property owned by the Deceased. The claimant contended that she received no response of any kind from the defendant and consequently, she gave instructions to her Attorney-at-Law to file a Claim in the High Court as she had no other option but to seek the intervention of the Court to bring the matter to a close.

5 An appearance was entered on behalf of the defendant on the 7th January, 2014 and on the 20th January, 2014 the defendant filed a Defence and Counterclaim. She indicated therein that on or around the 15th August, 2013, during the lifetime of the Deceased, he transferred his share, title and interest in the Arouca property to her. The Deed of Assignment was registered on the 18th December, 2013. The defendant stated that she thereafter became the legal owner of a half share in the said property.

6 According to the defendant on or about the 11th November, 2010 the claimant filed a summons against the Deceased for her share of the said leasehold property and around the 25th October, 2012 Charles J. ordered by consent as follows:

• a. That within 90 days of the date of the order, the defendant/petitioner (Deceased) to pay the respondent/applicant (claimant) the sum of 117,000 as full and final settlement in this matter and in exchange therefore, the applicant/respondent (claimant) do assign to the petitioner/defendant (Deceased) all of her leasehold interest in the Arouca property;

• b. The petitioner/defendant (Deceased) shall be responsible for having a Deed of Assignment prepared and registered by his Attorney-at-Law and all expenses incidental thereto shall be paid by the petitioner/defendant (Deceased); and

• c. The respondent/applicant (claimant) or her nominee shall execute the said Deed of Assignment for the consideration received and in default thereof the Registrar of the Supreme Court is authorized and empowered to execute the relevant Deed of Assignment for the said leasehold property, should the respondent/applicant or her nominee fail and/or refuse to do so after the expiration of 30 days from the date of the said payment.

7 According to the defendant, prior to the expiration of the 90 day period stipulated in the consent order referred to above, the Deceased and the claimant agreed to an extension of time to the end of September, 2013 for the payment of the sum of 117,000. The defendant contends that pursuant to the consent order and agreed variation, the defendant prepared a cheque to the claimant for the sum of 117,000.

8 The defendant says that she, her two children and the Deceased lived in the Arouca property from 1998 to present. She claims that she and the Deceased did extensive renovations to the said property, spending approximately 150,000 on improvements. She further states that after the death of the Deceased, and on the knowledge that she was now the legal owner of the said property, she expended the sum of 176,000 and did renovation works on the property.

9 The defendant claims that around the 14th November, 2013 through her Attorney-at-law she responded to the letter dated the 30th October, 2013 informing her (the claimant) of the Deed of Assignment (Gift) and the cheque made payable to the claimant. To date, the claimant has failed to respond to the said letter.

10 Relying on the facts claimed above, in her Counterclaim of the 20th January, 2014, the defendant seeks the following orders:

• a. A declaration that by virtue of the Consent Order dated the 25th October, “2013” and the Deed of Assignment registered as DE201303426596001 she is now the legal holder of the said leasehold property situate at No. 9 Tenth Avenue, Bon Air Gardens, Arouca; [It is to be noted that the consent order was actually dated “25th October, 2012” and not “201377

• b. An Order compelling the claimant to accept payment of the sum of 117,000 and transfer her Y. share of the said property to the defendant;

• c. In the alternative a declaration that the defendant has an equitable interest in the share of the said leasehold property that is owned by the claimant;

• d. Costs;

• e. Interest;

• f And such further and/or other relief as the Court deems fit.

11 On the 6th February, 2014 the claimant filed a Notice of Application to file a Reply to the Counterclaim [she really meant a defence to counterclaim] and an affidavit in support of same. On the 14th February 2014, the claimant filed her Defence to the Counterclaim. Therein, the claimant denied that the consent order dated the 25th October, 2012 allows the defendant to be the legal holder of the Arouca property as claimed in the Counterclaim. She further stated that the defendant has not provided any proof that the “alleged letter” mentioned in paragraph 10 of the Defence was ever delivered to the claimant's Attorney-at-Law and contends that the Deed of Assignment upon which the defendant relies was registered on the 18th December, 2013, long after she (the claimant) had filed her claim. The claimant further contends that she only became aware of the Deed of Assignment when her Attorney-at-Law was served with the Defence and Counterclaim. The claimant further contends that the defendant is not entitled to costs, interests and/or any further or other relief in this matter.

12 On the 24th February, 2014 the claimant filed a Notice of Discontinuance of her Claim. In the said Notice, the claimant stated that she discontinued the Claim because the Deed of Assignment registered on the 18th December, 2013 was sufficient evidence that the defendant is a co-owner and consequently, her (the claimant's) cause of action is now unsustainable. She further stated that she made an offer to sell her leasehold interest in the subject property to the defendant who accepted same save and except that she is not in agreement with the sum of 200,000 proposed by the claimant as the value of her leasehold interest in the subject property. The claimant further stated as a reason for discontinuance that she has other legal options/rights available to her.

13 The claimant thereafter commenced legal proceedings CV 2014-00745 against defendant on the 28th February, 2014 by way of a Fixed Date Claim Form which said claim was docketed to Boodoosingh J. In that action, the claimant seeks, inter alia, an order for sale of the Arouca property pursuant to section 3 of the Partition Ordinance Chapter 27:14 and a further Order that the defendant purchase her (the claimant's) interest in the said property within 90 days of the Order for one-half the value stated as 400,000 in the Valuation Report...