[2017] JMSC Civ 111
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
CLAIM NO. 2008HCV05458
BETWEEN
CLAUDETTE WHITE
CLAIMANT
AND
CYRIL MULLINGS
1
ST
DEFENDANT
AND
ELDRED MULLINGS
2
ND
DEFENDANT
Mr. Vincent Chen & Ms. Sylvan Edwards instructed by Chen Green & Co. for the
claimant.
Mr. Linton P. Gordon & Ms. Tamika Smith instructed by Frater, Ennis & Gordon for the
defendants
November 26, 27 & 28, 2012, July 31, 2017
Whether claim limited to causes of action specifically pleaded– breach of contract–
elements of contract– informal family arrangements– intention to create legal relations–
presumption of fact– mutual love and affection–assurance by word or conduct–
reliance– detriment– whether defendants’ action unconscionable– unjust enrichment–
restitution– receipt of benefit at claimant’s expense– whether unjust to retain benefit–
principles of equity– no agreement or promise made in writing– to what extent equity
mitigates the rigours of the law
D.
FRASER
J
THE CLAIM
[1]
On November 17, 2008 the claimant filed a claim whereby she sought to recover
from her parents, the defendants, possession of a portion of their dwelling house
previously occupied by her. She also sought an order for the transfer of the title
to the property registered at Volume 1262 Folio 598 to her, as joint tenant with
her mother, the existing registered proprietor.
[2]
In the alternative, she claimed the sum of Four Million, Eight Hundred Thousand
Dollars ($4,800,000.00) plus interest at 6% per annum, for work done in
construction of the two storey house on the property by her.
[3]
The claimant further sought a declaration that she is the equitable mortgagee
by way of deposit of title deeds for the amount claimed and an order that the
property be appraised, sold and the said amount with interest and cost be paid
out of the proceeds to her.
[4]
The main averments in the claimant’s particulars of claim were that there was a
verbal agreement between herself and her parents that she would provide them
with financial assistance to re-construct their house on the understanding, that
her name would be added to the Duplicate Certificate of Title as a joint tenant,
which she would keep, and on completion she would be permitted to occupy a
room in the house. She maintained that in pursuance of that agreement, from
time to time she provided substantial sums of money to help the defendants with
construction of the house and to pay for building materials.
[5]
In their defence filed on April 1, 2009, the defendants agreed that the claimant
assisted with the construction of the house, but contended that the property was
always treated as family land and there was no agreement with the claimant
regarding the construction of the house. Instead, the construction of the house
was done with the understanding of all family members that it was for the
occupation by and improvement in the living accommodations of the defendants.
[6]
The defendants also filed an ancillary claim/counterclaim on April 02, 2009,
claiming damages against the claimant for detinue and conversion and/or
trespass to goods, on the premise that she had taken and failed and/or refused
to return the Duplicate Certificate of Title and a Deed of Indenture for the
property. The 2
nd
defendant is registered as the sole proprietor on the
Duplicate Certificate of Title whereas on the Deed of Indenture, the 1
st
defendant
is recorded as the sole proprietor.
[7]
On May 7, 2009, the claimant filed a reply and defence to counterclaim in which
she contended that she had not wrongfully retained the property documents but
rather held them as a chargee, requiring the defendants to repay her in full with
interest the monies she expended to construct the house on the property, in
exchange for the release of her interest in the property and the return of the
documents.
[8]
On March 30, 2012, the 1
st
defendant filed a notice of application for court orders,
with supporting affidavit, seeking an order striking out the claimant’s statement
of case against him. The basis of this application was that the 2
nd
defendant
is the sole owner of the property and the 1
st
defendant lives on the land with her
permission. He was therefore not in a position to transfer title to the claimant.
[9]
On May 25, 2012, the claimant’s statement of case as against the 1
st
defendant
in respect of a) claim for possession of the portion of the house formerly
occupied by her; and (b) claim for the transfer of title in her name and/or the
claimant to be registered as joint tenant in respect of the parcel of land registered
at Volume 1262 Folio 598, was struck out by K. Anderson J.