REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

(Sub-Registry, Tobago)

M 26 OF 2004

BETWEEN

WENDY DALRYMPLE
Petitioner

AND

ESBERT DALRYMPLE
Respondent

Before the Honourable Mr. Justice R. Rahim

Appearances:

Mr. L. Phillips instructed by Ms. Myrna Walters for the Petitioner.

Mr. M. George for the Respondent.
 Judgment

1. By summons dated 6th August 2013, the Petitioner applied under section 44 (1) (c) of the
Matrimonial Proceedings and Property Act Chapter 45:51 (‘the Act’) to have the Court
exercise its discretion to set aside Deeds of Conveyance dated 2nd January 2004 and 1st
July 2005 and registered as numbers DE200400007073D001 and DE200501724233D001
respectively. By the deed dated 2nd January 2004, the Respondent purported to convey
the land described therein unto he and his mother, Margaret Dalrymple, as joint tenants.
By the deed dated 1st July 2005, the Respondent purported to convey to his mother his
undivided share and interest in the said land for the sum of $250,000.00.

2. The grounds of the application are that the execution of the said Deeds was done by the
Respondent with the intention of defeating and did actually defeat the Petitioner’s claim
for financial relief.

3. The judgment of the court shall be as follows:

i. Judgment for the Petitioner in the following terms:

a. Deeds of Conveyance dated 2nd January 2004 and 1st July 2005
and registered as numbers DE200400007073D001 and DE2005
01724233D001 respectively and made between the Respondent of
the one part and his mother Margaret Dalrymple of the other part
in respect of ALL AND SINGULAR that certain piece or parcel
of land situate at Rockley Vale in the Parish of St Andrew in the
island of Tobago (being portion of a larger parcel of land
comprising ONE ACRE AND TWO ROODS) comprising SIX
HUNDRED AND EIGHTY POINT EIGHT SQUARE
METRES (680 .8 m2) more or less and bounded on the North by a
Road Reserve 4 .5 metres wide on the South by lands of Blondell
Louis on the East by Lot No 2 and on the West by a Northside

Page 2 of 20
 Road which said parcel of land is delineated and coloured pink on
the Survey Plan marked “A” annexed to Deed registered as No
13866 of 2000 together with the building and appurtenances
thereon are hereby set aside (hereinafter referred to as "the said
premises").

b. The Registrar General is hereby directed to expunge Deeds number

DE200400007073D001 and DE200501724233D001 from the
Registry of Deeds.

c. The Registrar of the Supreme Court is hereby empowered and

authorised to execute a deed of conveyance on behalf of the
Respondent consistent with the terms of paragraph 1 of the order
of the Honourable Mr. Justice Ventour made the 26th day of
October 2006, namely to convey the said premises to the Petitioner
Wendy Dalrymple for the term of her natural life with remainder to
the seven children of the family, namely Darion Richard
Dalrymple, Dellisa Eslyn Dalrymple, Karina Esther Dalrymple,
Wendon Esbert Dalrymple, Anna Delora Dalrymple, Janae
Wendyann Dalrymple and Daria Deloris Dalrymple in equal shares
absolutely.

d. The Respondent is restrained whether by himself or through his

servants and/or agents whether by way of conveyance or otherwise
from transferring or disposing of his legal and/or beneficial interest
in said premises save and except in manner appearing in the terms
of this order.

e. The Respondent is to pay to the Petitioner the costs of the

application to be taxed by a Registrar in default of agreement.

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The Evidence

4. By Affidavit in support of her summons, the Petitioner deposed that she and the
Respondent were married on the 10th June 1982 and that she filed divorce proceedings on
the 19th May 2004. A decree nisi was granted on the 15th October 2004. The parties have
seven children together. By application dated 10th May 2006, the Petitioner sought an
order for ancillary relief. The parties thereafter on the 26th October 2006, entered into a
consent order whereby the Respondent agreed to transfer land situate at Rockley Vale,
Tobago together with the house thereon (hereinafter referred to as ‘the disputed
property’), to the Petitioner for her natural life and to the children of the family in
remainder. The disputed property had been the matrimonial home and the Petitioner had
been living there at the time of the conveyance.

5. The Petitioner stated that the Respondent, through several letters of correspondence from
his Attorney, had led her to believe that pursuant to the consent order the conveyance
would be done. However, the Petitioner deposed that despite leading her to believe this,
the Respondent conveyed the disputed property in an effort to defeat her claim for
ancillary relief. Further, the Petitioner’s evidence was that the conveyance by deed dated
1st July 2005 was a sham as no money had passed between the Respondent and his
mother and in fact the Respondent’s mother had actual notice of the Petitioner’s presence
on the disputed property as she lived there with the children of the family.

6. By his Affidavit in reply the Respondent denied that he gave any assurances that he
would execute any transfers or conveyance to the Petitioner. Further, the Respondent
deposed that at the time the consent order was entered into, both the Petitioner and her
attorney knew that the disputed property had already been conveyed to his mother at the
time of the application for financial relief. He stated that at the date of making the order
the disputed property was no longer his to transfer as the conveyance to his mother of his
share had already been executed.

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7. The Respondent’s mother Margaret, also swore to an affidavit in opposition to the
Petitioner’s application having been served by order of the court she being a party with
an interest in the disputed property. She deposed that that the parties moved into the
disputed property in August 1998. Before this, the parties had been living at a property in
Crown Point. Margaret stated that prior to the Respondent moving into the disputed
property, he borrowed $100,000.00 from her to repair the house and promised to repay
her by 2002. However, by 2002 the Respondent still had not repaid the money.
Margaret’s evidence was that the Respondent told her he would get a mortgage secured
on the disputed property to obtain the money to repay her, but when that did not
materialise he decided to transfer his share to her in lieu of the repayment of the sum.
According to Margaret, when the Respondent informed her that he and the Petitioner
were getting divorced he told her that he would move back to his home in Crown Point.
He decided to build apartments on those premises for which he would need the sum of
$250,000.00. Margaret stated that owing to the fact that the Respondent still had not
repaid her for the $100,000.00 loan she was hesitant to lend him that sum. Thus, in
exchange for the money he needed to build the apartments, the Respondent conveyed his
half share in the disputed property to her.

8. Margaret deposed that she was unaware of any dispute between the parties at the time of
the conveyances. She stated that she was merely securing an asset which had formed part
of her deceased husband’s estate and of which she would have been called upon to
account to the other beneficiaries.

9. In response to both affidavits in opposition, the Petitioner stated that there would have
been no need for the Respondent to borrow the alleged sum from his mother as he had
around that time sold several pieces of land for sums in excess of the stated loan and in
any event if such a loan did exist, the proceeds from these sales could have repaid the
loan.

10. It was the Petitioner’s evidence that the Respondent threatened her that he would ensure
she never got the disputed property “for any man to come there and live with her”.

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 Further, the Petitioner stated that she did not know of the conveyance of the disputed
property to Margaret and that it would have been simple for the Respondent to have her
execute the required deed to her to facilitate the court order.

11. The Petitioner admitted that she did move to the disputed property in August 1998, but
claims she expended the sum of $300,000.00 in repairs on the house to make it habitable
as it had been in a deplorable state. She denied that the Respondent ever spent any money
on the disputed property. The Petitioner claimed she spent a further sum of $350,000.00
in adding apartments on the disputed property.

12. The Petitioner also denied that the Respondent was building any apartments on the
Crown Point property. She further stated that there would be no need to transfer his share
of the disputed property to his mother as he too would have been entitled to a share in his
father’s estate and any loan to him could have been deducted therefrom.

13. It was also denied by the Petitioner that Margaret knew nothing of her (the Petitioner's)
intention to claim a share in the disputed property. This is because when the Respondent
had moved out, Margaret would come to the disputed property and curse her and tell her
that her son does not live there and she should leave as she knows it is the disputed
property that she wants and she would never get her hands on Dalrymple’s property.

14. The Petitioner deposed that it was the Respondent’s intention to deceive her, her attorney
and the court.

Issues

15. The relevant section of the Act is as follows:

“44. (1) Where proceedings for relief under any of the relevant provisions of this Act
(hereafter in this section referred to as “financial provision”) are brought by a person
(hereafter in this section referred to as “the applicant”) against any other person

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(hereafter in this section referred to as “the other party”), the Court may, on an
application by the applicant—
(a) if it is satisfied that the other party is, with the intention of defeating the claim
for financial provision about to make any disposition or to transfer out of the
jurisdiction or otherwise deal with any property make such order as it thinks fit
for restraining the other party from so doing or otherwise for protecting the
claim;
(b) if it is satisfied that the other party has, with the intention mentioned in
paragraph (a), made a disposition to which this paragraph applies and that if the
disposition were set aside financial provision or different financial provision
would be granted to the applicant, make an order setting aside the disposition and
give such consequential directions as it thinks fit for giving effect to the order
(including directions requiring the making of any payment or the disposal of any
property);
(c) if it is satisfied, in a case where an order under the relevant provisions of this
Act has been obtained by the applicant against the other party, that the other
party has, with the intention mentioned in paragraph (a), made a disposition to
which this paragraph applies, make such an order and give such directions as are
mentioned in paragraph (b),
and an application for the purposes of paragraph (b) shall be made in the proceedings
for the financial provision in question.

(2) Subsection (1)(b) and (c) apply respectively to any disposition made by the other
party (whether before or after the commencement of the proceedings for financial
provision), not being a disposition made for valuable consideration (other than
marriage) to a person who, at the time of the disposition, acted in relation to it in good
faith and without notice of any such intention as is mentioned in subsection (1)(a) on
the part of the other party.

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(3) Where an application is made under this section with respect to a disposition which
took place less than three years before the date of the application or to a disposition or
other dealing with property which is about to take place and the Court is satisfied—
(a) in a case falling within subsection (1)(a) or (b), that the disposition or other
dealing would (apart from this section) have the consequence; or
(b) in a case falling within subsection (1)(c) that the disposition has had the
consequence, of defeating the applicant’s claim for financial provision, it shall
be presumed, unless the contrary is shown, that the other party disposed of the
property with the intention mentioned in subsection (1)(a) or, as the case may
be, with that intention, about to dispose of or deal with the property.
(4) In this section—
“disposition” does not include any provision contained in a Will or codicil but,
with that exception, includes any conveyance, assurance or gift of property of
any description, whether made by an instrument or otherwise;
“property” has the meaning assigned to it in section 41(7);
“the relevant provisions of this Act” means any of the provisions of sections 23,
24, 25, 26, 27, 31 [except subsection (6) thereof] and 39,

and any reference to defeating an applicant’s claim for financial provision is a

reference to preventing financial provision from being granted to the applicant, or to the
applicant for the benefit of a child of the family, or reducing the amount of any financial
provision which might be so granted, or frustrating or impeding the enforcement of any
order which might be or has been made at the instance of the applicant under the
relevant provisions of this Act.

(5) The provisions of this section shall not apply to a disposition made more than three
years before the commencement of this Act.”

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16. In relation to this claim it means that:

a. Where proceedings are brought for financial provision under the Act (under
sections 23, 24, 25, 26, 27, 31 [except subsection (6) thereof] and 39) and an order
under the relevant provision has been made, the court may set aside a disposition
made by the Respondent, if it is satisfied that the Respondent has made such a
disposition with the intention of defeating the Petitioner’s claim for financial
relief.
b. The court’s power to set aside a disposition applies whether the disposition is
made before or after the commencement of the proceedings for financial relief.
However, the disposition must not have been for valuable consideration and ought
to have been made to a person who acted in good faith without notice of the
Respondent’s intention to defeat the Petitioner’s claim for financial provision.
c. It would be presumed that the Respondent intended the disposition to defeat the
Petitioner’s claim for financial relief if (1) the disposition was made less than
three years before the application under s. 44 or the disposition is about to take
place, (2) the Petitioner shows that the disposition has the consequence of
defeating the Petitioner’s claim for financial relief. The presumption can be
rebutted by the Respondent showing that the disposition was not made with the
intention of defeating the Petitioner’s claim for financial relief.

17. Counsel for the Petitioner submitted that by the application of the 19th May 2004 the
Petitioner instituted financial relief proceedings. Counsel further stated that the relief fell
under s. 24 of the Act as it embraced the current situation where there was an application
for transfer of property. The section which relates to transfer of property however is
section 26 and not 24 as was stated by the Petitioner’s attorney. Nevertheless, it is not in
issue that proceedings were brought by the Petitioner for Financial relief. The Petitioner
did, first in her petition of the 19th May 2004 and then in her application for ancillary
relief of the 10th May 2006, seek inter alia, an order that the matrimonial home be
transferred to her. Further, an order by consent, pursuant to the Petitioner’s claim for
financial relief was made on the 26th October 2006.

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 18. Thus, the issues for the court in determining whether to set aside the deeds disposing of
the disputed property are:

i. Whether the Respondent intended to frustrate or impede the Petitioner’s

claim for financial relief;
ii. Whether the disposition by the Respondent to Margaret was for valuable
consideration;
iii. Whether Margaret acted in good faith without notice of the Respondent’s
intention to defeat the Petitioner’s claim for financial provision

All of the above must be answered in the affirmative for the court to set aside the deeds.

The First Issue

19. The disposition was made more than three years before the instant application to set aside
the deed disposing of the disputed property. Consequently, the presumption in s. 44(3)(b)
of the Act does not apply and the Petitioner must prove that the Respondent made the
disposition with the intention of defeating the Petitioner’s claim for financial relief.

20. The intention required does not have to be the disponor's sole or even his dominant
intention. It is enough if it played a substantial part in his intention as a whole: Rayden
and Jackson on Divorce and Family Matters. Volume 1 Text, Chapter 27 para T27.16.

21. Both Counsel for the Petitioner and Respondent submitted that the main issue here is the
intention of the Respondent that the deed was done by the Respondent with the intention
to defeat the Petitioner’s claim.

22. Counsel for the Petitioner submitted that it is the Petitioner’s burden of proving the
statutory intent of the Respondent and further that the standard of proof is on a balance of
probabilities. The case of Kemmis v Kemmis [1988] 1 W.L.R. 1307 was referred to by

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 Counsel for the Petitioner for the meaning of intention under the Act. The legislation in
that case was materially similar to the Act in operation here. Lloyd LJ explained:

“First, we are concerned with the husband's intention in a subjective sense. It is

his state of mind which we have to investigate, not the consequence of his acts.
This much at least is clear from section 37(5) of the Act, whereby the relevant
intention is presumed if the disposition has the relevant consequence, but only if
the disposition is less than three years before the date of the application, and then
only unless the contrary is shown. Secondly, as in every case where we are called
on to investigate a person's intentions, the court is necessarily thrown back on
inference. It will be a rare case where the spouse declares his state of mind in
advance, and even then his declaration would not be conclusive, or even very
persuasive, unless it is against interest. Thirdly, in determining whether a spouse
has the requisite state of mind, a court may have regard to the natural
consequences of his act. It is true that there is no presumption, unless section
37(5) applies. Nor, generally, would the natural consequence of the disposition be
enough by itself to support an inference of intention. But the natural consequence
of the disposition would certainly be a factor to be taken into account in deciding
whether or not to draw the inference of intention in any given case.”

23. Attorney for the Respondent submitted that the effect of the dicta of Lloyd LJ in Kemmis
(supra) is that for the section to apply, the intention to deprive must go against interest.
Thus it was submitted that the deeds of transfer were more of attempts at protecting
Margaret’s interest rather that of depriving the Petitioner of any share therein. Counsel
stated that the fact that the Respondent only transferred a one half share in the property to
Margaret and not the entire interest clearly supports this argument. However, this
argument appears to the court to be based somewhat on an incomplete view of the
evidence as it is an undisputed fact that the Respondent eventually transferred his entire
interest in the disputed property to his mother.

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24. Counsel for the Petitioner pointed out that the evidence of the Petitioner was that prior to
her filing of her Petition the Respondent had, on the 9th December 2003, filed divorce
proceedings at the Sub Registry, Tobago on the fact of two years separation with her
consent. Further, that on the 4th December 2003 when the Respondent brought the typed
consent for the Petitioner to sign she indicated to the Respondent that she would be
seeking, and expected to have, the said lands transferred to her as the children of the
family were living with her and she had made significant contributions to the marriage
and to the acquisition of the matrimonial home.

25. The Petitioner stated that the Respondent did not say anything in reply but from the
record it was clear that on the 2nd January 2004, less than one month later, he had
surreptitiously executed the first deed vesting a half share of the said lands in Margaret,
to hold the same together with him as joint tenants. In cross-examination, Counsel sought
to make the point, and the court thinks quite effectively, that the deed would have been
executed immediately upon the end of the New Year holiday and that therefore there
must have been a sense of urgency operating in the mind of the Respondent to have the
deed done as quickly as he could. The court is of the view that from a perspective of
common sense, the submission of the Petitioner in this regard is a reasonable one.

26. Counsel for the Petitioner also noted that the evidence is that on the face of the deed itself
it was a voluntary conveyance not made for valuable consideration. The argument
therefore follows that if the explanation provided in the evidence by both the Respondent
and Margaret is to be believed, that is, that by the time of execution of the 2004 Deed, the
Respondent had been owing $100,000.00 to Margaret, then what prevented the parties
from making it clear in that deed that the transfer was for valuable consideration. The
answer is quite simply that nothing prevented it. In those circumstances it is obvious that
the explanation provided by the Respondent and his mother is of recent vintage, designed
to conceal the real reason behind the transfer in the first place and the court so finds.

27. The court also considers and accepts the evidence of the Petitioner who testified that both
Margaret and the Respondent on occasions threatened her that she would not get any

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 property. It means that the issue of the disputed property was a live one actively operating
in the minds of all the parties since that time. The court notes also that the extent of the
cross examination of the Petitioner related solely to the time she discovered that the
disputed property had been transferred. Her evidence in every other material respect was
not challenged.

28. Counsel for the Petitioner highlighted that the evidence of the Respondent showed clearly
his intent in executing the deeds disposing of the disputed property. He stated that in
cross examination the Respondent admitted that he was aware that the title to the disputed
property was not in his name at the time he entered into the consent order. Counsel also
pointed out that the Respondent admitted that he was being untruthful but then sought to
correct himself by saying that he was being truthful. It was submitted by Counsel that the
Respondent thought that if he entered into the consent order and did not own the said
lands then he would have had nothing to transfer. On this point Counsel stated that when
the Respondent deposed in his affidavit that the terms of the order could not be complied
with because the disputed property was no longer in his name, this was exactly what was
uppermost in his mind at the time he made the conveyance.

29. Counsel for the Petitioner asked the court to consider the evidence of the Respondent
wherein he denied that when he had gone to the Applicant with a consent for her to sign
(when he was about to file his divorce petition) that she told him that she would be
seeking to have the said property transferred to her and the children. Counsel noted that
when in cross examination, the Respondent was shown the acknowledgement of service
filed by the Petitioner and her indication therein that she wanted property and it was put
to him by Counsel that the only property she could have been speaking about was the
subject property and other properties he owned he said that he so understands it “now.”
Counsel submits that his latter answer is inconsistent with his denial and therefore affects
his credibility on the issue. With this the court agrees.

30. It is also was further noted by this court that the Respondent admitted that he and the
Petitioner had expended a great deal of money in adding three three-room apartments to

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 the subject property and admitted that he “thought” about the Applicant when he was
effecting the transfer. In the courts view this shows clearly that the intention of the
Respondent at the time of the first transfer was to deny the Petitioner her entitlement to a
share in the disputed property, her entitlement being on his mind at the time of the
execution of the conveyance.

31. It was contended on behalf of the Petitioner that the Respondent’s evidence shows that he
was prepared to be dishonest with the court by representing that he was the owner of the
disputed property and his demeanour and lack of candour in answering questions lend
support to this inference.

32. While Margaret testified that she attended the offices of Messrs. Gift & Co. in cross
examination she stated that she did not know where those offices were and the only
lawyer she dealt with was Mr Taylor.

33. Attorney for the Petitioner submitted that the evidence of the Respondent and Margaret,
contradict not only themselves but each other. On this point he noted the evidence of
Margaret that when asked whether the Petitioner assisted in repairing the subject house,
she replied that the Petitioner did not but that the Respondent helped a little and that she
borrowed money and put on the little she had to repair the house in question. Counsel
argued and the court fully agrees that this was in stark contrast to her Affidavit where she
stated that she lent the Respondent $100,000.00 to repair the house and that this loan led
to the conveyance of the disputed property. Margaret quite simply could not be telling the
truth on this issue.

34. A further aspect of Margaret’s evidence that Counsel noted was the evidence arising out
of cross examination that she knew that the Pettitioner and her children lived at the
disputed property. She stated that she made arrangements with the Attorney, Mr. Taylor
to have the deed done and she did this because she had heard of the behaviour of the
Petitioner and she wanted back the land. This is contrasted with her evidence contained

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 in her Affidavit that she learned about the pending divorce proceedings from the
Respondent and she knew nothing of the any dispute over the disputed property.

35. The court agrees with the submissions of Counsel for the Petitioner and notes the
following:

a. In his affidavit, the Respondent states that he is unaware of assurances given that
he would execute any transfer to the Petitioner. However, by letter dated 27 th
March 2008 from the Respondent to his attorney, he stated “With respect to the
deeds for the property, I assure you I am working on it”. While it does not
explicitly state the property to which he refers, the letter expressly refers to the
court order of financial assistance. It is the logical conclusion that the property to
which he referred is in fact the disputed property.

b. The Respondent in his affidavit stated that at the time of the consent order, the
property was already entirely vested in his mother and so was no longer his to
transfer. He testified that at the time of the making the order both the Petitioner
and her attorney would have been aware of the conveyance as such document is
available for public inspection. The court cannot conceive that this is a legitimate
explanation for entering into a consent order, that is, knowledge by one party only
that execution of the order was not possible. It is important to note that this was
not an order of the court in the usual course of a hearing. The Respondent, with
full knowledge of the state of the disputed property, agreed before a court of
law to carry out certain acts in relation to the disputed property which he knew
was not possible. For the purpose of his explanation why the consent order was
entered into, it matters not whether the Petitioner or her attorney knew of the
deeds before the order. In any event it is unimaginable that the Petitioner would
seek a truncated end to her application for financial relief knowing that what she
was agreeing to could not be carried out. The actions of the Respondent in so
doing amounts to reprehensible conduct on his part which can only be
characterized as blatant dishonesty to both the Petitioner and to the court.

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 Certainly, had the court at the time been informed that the property was not vested
in the Respondent, it would not have approved such an order. It was therefore the
intention of the Respondent to mislead the court. This action and the subsequent
attempt to justify it by means of a wholly disingenuous argument by way of his
testimony have affected the credibility of the Respondent in an adverse manner.

c. It is Margaret's evidence that she lent the Respondent the sum of $100,000.00 to
repair the house on the disputed property. She stated that his inability to repair led
him to execute the first deed conveying a beneficial share in the disputed land.
Further that because that loan had not been repaid when he needed more money to
carry out construction on another property, his entire share was transferred to her.
In cross examination however, she testified that she repaired the house when the
Respondent and his family then moved in. She stated that the Petitioner is
untruthful when she says she spent $30,000.00 to fix the house. According to
Margaret, the Respondent assisted her a little in different ways in fixing the
house, however, it was her money being spent which she had borrowed. This
evidence is clearly contradictory and affects her credibility in material particular.

d. The deed dated 2nd January 2004 whereby the Respondent conveyed a half share
beneficial interest to Margaret as joint tenants, states that the disputed land forms
part of a family inheritance and that it has been handed down from generation to
generation in the Dalrymple clan. If anything this appears to be a further
indication of the Respondent’s intention to keep the disputed property in the
Dalrymple family and out of the hands of the Petitioner despite her entitlement
and his agreement.

36. In all the circumstances therefore the court is of the belief that on the evidence, the
Respondent intended to frustrate or impede the the Petitioner’s claim for financial relief.
Further, the timeline of events is an even clearer indication of this intention. They are as
follows:

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 - 4th December 2003: Respondent (in first Petition) gives Petitioner consent for
divorce
- 9th December 2003: Petition for divorce filed by Respondent
- 2nd January 2004: Execution of first deed conveying to his mother a half share
interest as joint tenant
- 23rd April 2004: Discontinuance of divorce proceedings
- 19th May 2004: Fresh petition for divorce by Petitioner ( in second Petition)
- 15th October 2004: Decree nisi granted
- 1st July 2005: Execution of second deed conveying his entire interest to his
mother
- 10th May 2006: Petitioner’s application for ancillary relief
- 26th October 2006: Parties enter into consent order pursuant to the petitioner’s
application for financial relief

37. The court is of the view that the evidence in this case is extraordinarily clear that the
actions of the Respondent were dishonest, deceitful and calculated to defeat the
Petitioner’s claim for financial relief. This court would not ordinarily use words with
such strong connotations to describe the actions of litigants but it is of the opinion that the
evidence of the actions of the Respondent in this case has left it with no choice in the
circumstances.

The Second Issue

38. The first deed whereby the Respondent conveyed to his mother a half share interest in the
disputed property as joint tenant was not for valuable consideration.

39. The second deed whereby the Respondent conveyed his entire share and interest in the
disputed property is stated as being in consideration of $250,000.00

40. Notwithstanding this, Margaret in her affidavit explained that after the Respondent had
gotten the decree nisi he moved into a family home in Crown Point. He desired to build

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 apartments on that land and required the sum of $250,000.00 to do so. Owning to the fact
that a previous loan had not yet been repaid, Margaret was hesitant to lend him the sum
and so caused the disputed property to be transferred to her entirely. This does not give
the impression that money was actually passed in consideration of the disputed property
and save and except for the deed itself, there is no evidence of money having been
passed.

41. In his affidavit, the Respondent merely denies that no money was passed in the second
conveyance. In cross examination he stated that:

“I was paid by my mother for the land. She gave me $150,000.00. That was not at
the lawyer’s office. After I signed she took me to Rockyvale and gave me the
money

Put: when you told us $150,000.00 you are not speaking the truth.
A: That was cash, I owed her money before which she had loaned me.

The deed does not say anything about she lending me money before. I own several
parcels of land. I sold several parcels during and before the divorce. I was not
selling out. I sold property, lands. I needed cash. I sold land to Lalchan Kissoon.
And to Harrilal Kissoon and to Gerald Kalloo. In 2003 I sold to harrilal and
Soogaya Kissoon. I amassed over $500,000.00 from those sales. “

42. There are grave inconsistencies in the evidence of the sum allegedly paid in consideration
of the disputed property and this again affects the credibility of the Respondent. Further,
the evidence that he had sold other properties during and before the divorce and collected
over $500,000.00 leads the court to doubt that he would have had to borrow $250,000.00
from his mother to construct apartments on the Crown Point land. Additionally, this
evidence of the Respondent’s other property sales is the source of further doubt that
$100,000.00 was deducted from the purchase price of the disputed property since the
Respondent would have been in a position to repay this loan if it was in fact owed to his

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 mother. In any event, Margaret’s evidence that it was she who expended her own cash on
repairs to the house on the disputed property lends to the conclusion that there was never
any loan to repay.

43. The inconsistency between Margaret and the Respondent in relation to evidence of what
was paid in consideration of the disputed property has therefore led the court to
disbelieve their evidence that any consideration passed. The result is that the court is of
the view that the disposition by way of the second deed was not one for valuable
consideration.

The Third Issue

44. This issue can be dealt with briefly with reference to Margaret’s evidence in cross
examination. In her affidavit Margaret indicated that she knew nothing about any dispute
between her son and his ex-wife. She stated that she was merely securing an asset should
she be called on to account for the money by the other beneficiaries. In cross
examination however she testified:

“I give him with a clean heart and when I see things going contrary I call
him back and put it back in my name. From the time I heard that there
was a break going on between my son and daughter-in -law I tried to get
a deed to get back my property. I wouldn't say I didn't want her to get her
hands on the property.”

45. This is a clear indication, not only of Margaret’s part in the Respondent’s plan to defeat
any financial relief claim, but also of her knowledge of the Respondent’s intention. It
shows that the transfers were a deliberate act on her part also calculated to deprive the
Petitioner of her entitlement. The court finds therefore that Margaret did not act in good
faith and that she did have notice of the Respondent’s intention to defeat the Petitioner’s
claim for financial provision.

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 46. The court is satisfied therefore that the Respondent has made a disposition of the disputed
property with the intention of defeating the Petitioner’s claim for financial relief. For the
preceding reasons therefore, the court would dispose of this case in manner appearing at
paragraph 3 above.

Dated this 9th day of June, 2014.

Ricky Rahim
Judge

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