Persad v Persad

• Jurisdiction: Trinidad & Tobago
• Judge: Ramkerrysingh, J.
• Judgment Date: 15 June 2012
• Neutral Citation: TT 2012 HC 206
• Docket Number: FH 785 of 2010
• Court: High Court (Trinidad and Tobago)
• Date: 15 June 2012

High Court

Ramkerrysingh, J.

FH 785 of 2010

Persad

and

Persad

Appearances:

Ms. Indrani Mootoo for the petitioner

Ms. Ratucharitar for the respondent

Family law - Matrimonial property division

Ramkerrysingh, J.

1 The parties before me had been married for approximately four years (March 2005 to 2009) when the petitioner returned to her parents' home in May 2009 just before filing a petition for divorce and a Financial Application on 22'd April 2010. A decree nisi was pronounced at the Directions Hearing on 13th July 2010 and permission was granted to the petitioner to file an amended application. The parties had no children and the petitioner by her amended application now applies for an order for:

• a. Property settlement and/or lump sum payment and

• b. Costs.

THE ASSETS

2 The marital assets in which the petitioner claims an interest include the furniture, furnishings and equipment of the matrimonial home and a 25-seater maxi-taxi, registration number HCE 6216. The petitioner estimates that she spent about $50K on the household items most of which were left at the matrimonial residence when she returned to her parent's home. No value has been placed on the maxi-taxi. The petitioner also stated that after she left the matrimonial home, the respondent sold a Mitsubishi Lancer motor car for $38K and that she received no portion of the sale proceeds.

WEIGHING THE EVIDENCE

3 The case for the petitioner is that upon the marriage the parties moved into the respondent's family's home where they remained for the duration of the marriage. She claimed that she purchased a dressing table, living room suite, microwave, blender and other household items and utensils worth approximately $50K, using the savings she had accumulated from the time she was 17 years old, when she claimed to have entered the work force. In support of her claim that she purchased the items, she produced two invoices for March 2005 and August 2005 for the following items to wit:

• a. A five-drawer chest of drawers

• b. Stainless steel microwave

• c. Washer

• d. Living room suite

• e. Blender

The respondent denied that the petitioner bought these items, saying that they were purchased by him and that he had accompanied her to the store Fen's of Marabella where the items were purchased. Further, he intimated that the petitioner was not in a position to purchase anything as, prior to the marriage she had only worked for a year as a medical transcriptionist and that for the majority of the marriage, while she was engaged in her studies to qualify as a nurse she received a stipend of $1400 per month. I shall refer to this stipend later in the judgment. The respondent stated that he was responsible for maintaining the petitioner and providing the household with all that they needed including the household articles.

4 The items the petitioner said she had purchased and which were mentioned in the list given in her affidavit, but not in either of the two invoices above, are the cake mixer, utensils and curtains. The said invoices (Exhibit [SNP1]) contain the other items and I accept the petitioner's evidence as to the purchase of the items over the respondent's. It is reasonable to assume and it is my finding that she purchased all the items that is to say, those itemized in the invoices and those mentioned in her affidavit. The respondent said that the items were purchased from Fen's of Marabella, when it is clear from the invoices that they were bought from Teelucksingh's Furniture and Appliances and General Store Company Limited. The first invoice dated a mere 8 days after the marriage further supports the petitioner's evidence that she purchased these items for the parties' household. However, while I do find that the petitioner purchased these items, I reject her testimony that the cost of the items amounted to $50K. In fact the invoices indicate that inclusive of transport, the total cost of the items was $6425 and I am certain that the cake mixer, utensils and curtains could not have cost $43,575. If I were to include a costing for the last three items, I would estimate that the petitioner spent no more than $8000 for all the items combined.

5 Furthermore, it was revealed that not all the money spent on these items came from the petitioner and that some of the money, at least $300, came from the “kitchrie” or donations from well-wishers at the wedding.

6 Ms. Mootoo submits that the Court must make robust inferences about the respondent's obvious attempt to mislead the Court when he said that he had purchased the household items. She referred to the case of ( Demi v DesaiDesai v Desai (1983) 12 Fam. LR 46) in support of that submission. However while I do accept that the evidence is not in the respondent's favour and that he may have been guilty of misleading the court in this aspect, I do not think that it reflected a general attitude of untruthfulness in the case. Moreover, it is my finding that the petitioner was guilty of non-disclosure on her Form 8 when she did not mention the joint account she held with her mother at Republic Bank Limited. She said that she made no reference to this account because her mother was the primary holder on the account and she “cannot interfere with it” (petitioner's Evidence, Cross-Examination — 24/05/12), even though her evidence is that the account was opened for her by her parents. A strict adherence to the principle of “robust inference” would mean that she should be penalized for that non-disclosure, but, like the respondent's failed attempt to persuade the court that he bought the items at Fen's, I do not think that in either case, any leverage would be gained by making such inferences in this case.

7 Both parties agree that the respondent bought HCE 6216 with the help of two loans, one of them being from the petitioner's mother in the amount of $100K. The petitioner said that the respondent had no savings at the time, whereas the respondent stated that he held a joint account with his mother, which was used to facilitate the loan he took to buy his first maxi-taxi. He also had the sale proceeds of the first maxi, which he intended to use to supplement the second bank loan of $100K he intended to apply for, in order to meet the purchase price for HCE 6216. However, it was on the petitioner's insistence that the respondent borrowed the $100K from his mother-in-law instead of the bank. It was also arranged that he pay her the interest that he would have paid to the bank. The petitioner, perhaps with the aim of establishing an interest in the maxi-taxi, deposed that “(h)ad it not been for the loan from my mother, the respondent and I would not have been able to purchase the maxi … and any of the vehicles we subsequently purchased” (petitioner's Affidavit filed 19/11/10; para. 7).

8 I reject the petitioner's argument on two grounds. Firstly it is a fact that the respondent repaid the loan to his former mother-in-law in full, together with interest, although the parties differ as to the amount of that interest. The petitioner at trial stated that the interest amounted to $5K whereas the respondent insisted that it was $17K. Whatever the amount it is accepted that interest was paid and the petitioner accepted further, that she made no contribution to the purchase of the maxi, nor did she take part in the negotiation process. Secondly, I do appreciate that the vehicle was purchased during the subsistence of the marriage, but by the petitioner's own account the marriage by that time had already started to crumble. In fact, in her petition she stated that in 2008 she discovered that the respondent was engaging in an extra-marital affair and for the next year “pleaded with him (sic) to bring an end to the relationship, to no avail — the respondent has persisted in his improper conduct and is currently conducting same openly.” So the purchase of the maxi-taxi, coming as it was towards the end of the marriage in my judgment further lessens any beneficial interest for the petitioner. That is not to say that this fact taken alone is enough to disentitle her, but rather that the timing of the purchase juxtaposed against the petitioner's non-contribution and the repayment of the mother-in-law loan negatively affect her interest in the vehicle.

9 With respect to the sale of the Mitsubishi Lancer PBU 3641, the respondent's evidence is that he never owned that vehicle. He said that it belonged to a friend who works on contract, harvesting crops out of the jurisdiction and that the car was left for repairs at his (the respondent's) neighbour's garage. When the repairs were completed the neighbour asked him (the respondent) to keep the car on his premises. The respondent deposed that the vehicle is currently in the possession of his friend's wife. From his disposition and demeanour in court I formed the impression that the respondent was being truthful in his testimony regarding this vehicle and I accept his evidence in this regard. He testified that the car he purchased was a Fielder wagon motor car registration number PBS 6236 in 2010, which he bought after the petitioner left the matrimonial home. He denied that the vehicle was sold, but rather stolen and that it was never recovered. He claimed that he made a report of the theft although no such report was tendered into evidence.

10 Apart from PBS 6236 the respondent said under cross-examination that he had purchased another Fielder wagon in 2011, which he later sold to the petitioner's uncle for $60K in the hope, he said, of settling this matter and clearing off debts in relation to the marriage. He said he had bought this car in order that he might have a vehicle for his personal use, since the only vehicle he owned was the maxi-taxi, which was not convenient for domestic use. He denied that he was in the business of selling vehicles as suggested by Ms. Mootoo, having bought and sold three...