IN THE HIGH COURT OF JUSTICE BETWEEN DAYNE ROBERT DANIEL AND DALANA ST ROSE

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No: C.V BETWEEN DAYNE ROBERT DANIEL Claimant AND DALANA ST ROSE Defendant Before The Honourable Mr. Justice Frank Seepersad Appearances: 1. Mr. Anthony Manwah for the Claimant 2. Ms. Allanna Rivas for the Defendant Date of Delivery: 27 th July, 2015

2 REASONS 1. By consent order dated the 15 th April, 2013 the parties agreed as follows: IT IS ORDERED BY CONSENT: i. That the premises situate at 15 Eden Court, Paradise Gardens Tacarigua be sold and the proceeds of sale therefore be applied to the existing mortgage and the balance if any be divided between the parties in such proportion as they may agree, said sale to be effected on or before the 29 th November, 2013 ii. Liberty to apply iii. There shall be no order as to costs. 2. Subsequent to the consent order by a written agreement signed by the parties the Claimant agreed to accept the sum of $7, as being his share of the surplus of the proceeds of sale of the property. The said agreement provided as follows: TO WHOM IT MAY CONCERN: I Dalana St.Rose of #88 Williams Street Ext Five Rivers Arouca, hereby agree to give Dayne Robert Daniel as agreed and discussed seven thousand dollars ($7,000) from the sale of the property jointly owned at #15 Eden Court Paradise Gardens Tacarigua.. Ms. Dalana St. Rose Agreed Upon, Mr. Dayne Daniel 3. Subsequent to the agreement the Defendant was informed in writing by the purchaser Mr. Ian Romain that a payment of $60, was paid in cheque to Mr. Dayne Daniel alone, as down payment for the two bedroom dwelling house located at #15 Eden Court Paradise Gardens Tacarigua, and a further payment of $8, was paid to offset land Page 2 of 5

3 and building tax and a WASA clearance certificate and all outstanding WASA payments. No portion of the aforesaid sums were remitted to the Defendant 4. On the 21 st October, 2014, the Defendant applied to the court under the Liberty to Apply provision, for directions for the carrying out of the Consent Order dated the 15 th April, The Defendant asked the Court to order that the sum of $ as was agreed subsequent to the entry of the consent order had to be paid to the claimant and that the balance of any surplus beyond the $ was to be remitted to her. 5. The Claimant filed nothing in response to the said application and the uncontroverted evidence as it stood before the court was that there was an agreement for the Claimant to accept $7, from the proceeds of the sale and consequently any sum in excess of that $7, had to be paid to or retained by the Defendant. 6. On the 27 th April, 2015, the Court made the following order with respect to the Defendant s application : i. The Claimant Dayne Daniel is to pay to the Defendant Dalana St. Rose the sum of sixty one Thousand ($61,000.00) pursuant to the Consent position arrived at on the 15 th April, 2013, said sum representing the surplus that was received from the sale of the premises and liquidation of the mortgage less the sum of Seven Thousand Dollars ($ ) that was agreed between the parties to be kept by the Claimant. 7. On the 27 th May, 2015, the Claimant by notice of application, applied to the Court for an order setting aside the order of the Court made on the 27 th April, 2015, on the ground interalia, that the order amounted to a variation of the Consent Order dated the 15 th April, 2013 and was not within the ambit of the Liberty to Apply provision. 8. The claimant in support of his notice of application, submitted that after a final judgment or order, liberty to apply allows the parties to apply to the Court for assistance in working out the order, which means giving such directions or further orders as are necessary to give effect to the final order and does not enable the court to vary the final order. According to the Claimant, the order of the 27 th April, 2015, sought to vary the Consent Page 3 of 5

4 order by determining the proportion of the surplus which was to be divided and rendered the Consent order nugatory. 9. According to Halsbury s Laws of England Vol 11 (2009) para 1165 : The circumstances or the nature of a judgment or order often render necessary subsequent applications to the court for assistance in working out the rights declared. All orders of the court carry with them inherent liberty to apply to the court, and there is no need to reserve expressly such liberty in the case of orders which are not final. Where in the case of a final judgment the necessity for subsequent application is foreseen, it is usual to insert in the judgment words expressly reserving liberty to any party to apply to the court as he may be advised. The judgment is not thereby rendered any the less final; the only effect of the declaration is to permit persons having an interest under the judgment to apply to the court touching their interest in a summary way without again setting the case down. It does not enable the court to deal with matters which do not arise in the course of working out the judgment, or to vary the terms of the order except possibly on proof of change of circumstances. 10. In the Court of Appeal case of Christel.v. Christel [1951] 2 K.B 725, the court noted that prima facie the words liberty to apply in an order meant that when the order was drawn up its working out might involve matters on which it might be necessary to obtain a decision of the Court; they did not confer any right to ask the Court to vary the order. In the local cases of Dowlateah Seepersad.v. Moonia Seepersad CV the Court reaffirmed the position that under the liberty to apply provision, the Court is permitted to deal with matters that arise in the course of working out the judgment. 11. This Court formed the view that the Order dated the 27 th April 2015, was not a variation of the Consent Order. The parties pursuant to the terms of the original consent order arrived at a written agreement which reflected that the Claimant was to accept $7, from the sale of the property and the order issued on the 27 th April 2015, merely gave Page 4 of 5

5 effect to the mutual agreement of the parties as was contemplated by the provisions of the Consent order. 12. Accordingly the Claimant s application to set aside the order was dismissed and the Claimant was ordered to pay to the Defendant costs which was agreed in the sum of Three Thousand Five Hundred Dollars ($3,500.00). FRANK SEEPERSAD JUDGE Page 5 of 5