Pridgeon v Pridgeon [1995] FJHC 125; Hbd0007d.92s (19 July 1995)

IN THE HIGH COURT OF FIJI
(AT SUVA)
MATRIMONIAL CAUSE NO. 7 OF 1992

BETWEEN:

ANTHONY GERARD PRIDGEON
of Suva, Fiji, Retired
Petitioner

AND

CHERIE ELIZABETH PRIDGEON
of Pacific Harbour, Deuba
Respondent

V. Maharaj for the Petitioner
A. Gates for the Respondent

Date of Hearing: 30th June 1995
Date of Ruling: 19th July 1995

RULING ON APPLICATION BY PETITIONER
FOR LEAVE TO APPEAL

On the 12th and 18th of April 1995 I made two orders herein both on a Summons for interim maintenance and other orders issued by the Respondent on the 7th of April 1995. The first Order was that Villas 88 and 308 at Pacific Harbour be sold by the Petitioner no later than 17th June 1995 either by auction or by private treaty and that the matter be adjourned to the 18th of April 1995 for the parties to furnish to this Court a valuation in respect of Villa 88.

On the 18th of April I made the following orders:

(1) That the Petitioner do pay the sum of $180.00 (ONE HUNDRED AND EIGHTY DOLLARS) per month to the Respondent and $60.00 (SIXTY DOLLARS) each per month for the twin children of the marriage between the Petitioner and the Respondent as interim maintenance commencing on 26th April 1995.

(2) That the reserve price for sale of Villa 88 at Pacific Harbour be $150,000.00 (ONE HUNDRED AND FIFTY THOUSAND DOLLARS) and that of Villa 308 be $60,000.00 (SIXTY THOUSAND DOLLARS).

(3) That both the above properties be advertised for sale in such a way as to endeavour to ensure that the best possible prices are obtained from the sale.

(4) That the Petitioner do instruct Raine & Horne International Real Estate Agents, no later than 26th of April 1995.

(5) That any offers that would be received for the sale of either of the properties by private treaty be conveyed to the Respondent's solicitors.

(6) That the costs of the application be costs in the cause and that the matter be adjourned for mention on the 23rd of May 1995 for a progress report.

On the dates on which both orders were made the Petitioner was represented by Mr. S. Chandra a partner in the firm of the Petitioner's solicitors and the Respondent was represented by his present counsel Mr. Gates.

On 4th of May 1995 the Petitioner's solicitors issued a Notice of Motion seeking leave to appeal against the above orders and an order that all further proceedings be stayed pending the determination of the appeal by the Fiji Court of Appeal. The Petitioner swore an affidavit on the 5th of May 1995 in support of his Motion and also filed proposed grounds of appeal to the Court of Appeal. These are:

(1) That I erred in law and acted in breach of the rules of natural justice in ordering the sale of the Villas 88 and 308 and further in ordering maintenance in favour of the Respondent in chambers when any purported sale or otherwise maintenance and ancillary relief sought by the Respondent were and still are matters in dispute between the parties and subject of the substantive hearing by me scheduled to be heard by consent of both parties in open court on 5th, 6th and 7th of September 1995.

(2) That in ordering the sale of the said Villas and maintenance in favour of the Respondent before the substantive hearing I pre-determined the issues between the parties in favour of the Respondent and thereby caused the Petitioner a grave miscarriage of justice.

In his Affidavit in support of his motion for leave to appeal the Petitioner states that it was always his belief that at the scheduled hearing on 5th, 6th and 7th September one of the issues for determination by this Court would have been the Respondent's claim for an equity if any, in Villa 88 of which the Petitioner remains a sole registered proprietor.

The Petitioner also deposes that so far as Villa 308 is concerned he is the owner of only one undivided half share. The remaining half is owned by a Martin Tyler. This Villa is subject to another action pending in the High Court of which so far I have no knowledge.

The Petitioner states that he was somewhat surprised when I made an order for sale of both Villas on the 12th of April on an application for interim maintenance for the Respondent.

Lastly he states that he has been advised and believes that in any event, if the Respondent succeeds in establishing her share in either Villa an order for the sale of the Villas is not the only option open to this Court. Any sale therefore would put him at a considerable disadvantage in that he would be deprived of a roof over his head and that of his children.

On the 21st of June 1995 pursuant to leave which I gave on the 16th of June the Respondent filed an affidavit in reply to that of the Petitioner. She refers to a consent order made by Mr. Justice Scott on 24th September 1993 which dealt with Villa 88 so far as relevant as follows:

(1) That Villa No. 88 situate at Pacific Harbour at Deuba and presently owned by the Petitioner be sold within three months from the date of the order.

(2) That the net profits of the sale after deduction of all repair costs (if any) to be divided equally between the parties.

(3) In the event that the Villa is let out pending the sale all rental proceeds be apportioned equally between the Petitioner and the Respondent.

In her affidavit the Respondent admits that the Petitioner is the owner of only one undivided half share in Villa 308 in so far as she understands that whoever holds the shares in the company called MIRAMAR PTY LIMITED does so as Trustee for the joint owners namely the Petitioner and Martin Tyler both of whom provided the purchase money. The Respondent states that this arrangement was entered into since at that time the Petitioner was not a citizen of Fiji.

She then refers to the two orders made by me and claims that the Petitioner:

(1) Failed to pay the first month's payment into the High Court Registry as ordered.

(2) Then issued a cheque to the Registry in the names of the 8-year old twins both of which actions were designed to delay the maintenance;

(3) Has only obeyed the order for maintenance by paying into the High Court Registry last May a payment 21 days late and only after prompting by her solicitors and herself.

(4) Has failed to obey any part of the order and direction for the sale of the Villas.

The Respondent deposes that she has equitable rights in the Villas having regard to all the circumstances of their marriage in that she has contributed financially towards the day-to-day running of the matrimonial home and assisted the Petitioner in various ways to enhance their financial position.

She states that the reason I gave for ordering the Villas to be sold was to free funds to enable the Petitioner to meet his obligations to pay maintenance for his children.

Finally she refers to the fact that my orders were interim only and alleges that the Petitioner in filing his present motion is engaged in delaying tactics. She also says that in the event after the trial of the action no final order is made in her favour she will give credit for any interim payments made by the Petitioner.

Without leave of this Court the Petitioner swore and filed an affidavit in reply to the Respondent's affidavit. Since no objection was taken by the Respondent's counsel on the hearing of the present motion I will refer to some parts of it. The Petitioner says that the orders made by Scott J. on the 24th of September 1993 were made with the genuine desire of all parties to reach an amicable settlement. They were also based on certain assumptions which unfortunately turned out not to be true. One such assumption was that all the household furniture including a substantial amount of the Petitioner's personal items were inside the Villa which at the time was in the possession of the Respondent.

Subsequently the Petitioner says he visited the Villa and was horrified to discover that almost all of his household items of substantial monetary value had been either sold by the Respondent or removed by her from the Villa. Furthermore he says it was agreed that the Villa would be let out pending the sale and the rental income would be distributed equally between himself and the Respondent. He says that in breach of Mr. Justice Scott's orders the Respondent moved out of the Villa but allowed someone else to occupy it without his consent forcing the Petitioner to take legal proceedings to remove the occupants from the Villa.

He says that these alleged breaches by the Respondent were brought to the notice of Mr. Justice Scott who commented on them in his ruling on the 27th of January 1995.

Whether or not any of these allegations are true are matters of fact which presumably may be debated in the hearing before me in September. The Respondent purports to give an explanation as to why he made out a cheque in the names of the twin children which explanation may or may not be credible depending on the view I form if the Petitioner is cross-examined on his allegations.

He makes other allegations against the Respondent including (1) that her tenants who were in occupation of his Villa had accumulated water bills amounting to nearly $1,800.00. He says that he is not seeking a stay in regard to payment of maintenance to his two children in the total sum of $120.00 per month despite the fact that he is solely looking after and maintaining his elder son James and the twins when they are with him without any contributions from the Respondent. She is said to be gainfully employed.

Lastly he says that he objects to paying any maintenance to the Respondent and that if the Villa is sold he will lose a roof over his head and due to his old age will not be able to raise sufficient funds to purchase another decent home.

Before Mr. Maharaj counsel for the Petitioner began his submission to me on this motion on the 30th of June I expressed my surprise that the motion had been issued in view of what had occurred before me on the 12th and 18th of April last. I pointed out to Mr. Maharaj that the Petitioner had been represented by his partner Mr. Chandra and had not uttered as much as a murmur of protest when I indicated that I proposed to order the immediate sale of the Villas and that it seemed to me that the Respondent had established a prima facie case for interim maintenance for herself and the twins.

I also reminded Mr. Maharaj of the affidavit sworn by the Petitioner on the 12th of April 1995 in opposition to the Respondent's claim for interim maintenance. It is useful to quote from the last portion of paragraph 18 of that affidavit which reads thus:

"I set out herein my expenses per month:-

Income - Six hundred pounds to six hundred and fifty pounds = $1,430.00 approx. - Pension from England.

(A copy of pay advice slip is attached hereto and marked with the letter "A".)

Commitments in England

- Insurance

- Professional fees

- Sixty pounds p.a. to Philatelic Office

- Presents for children in England.

Local expenses

Rent - $460.00

Garden - 30.00

Power - 80.00

Gas - 30.00

Phone - 100.00

Medical - 40.00

Car - 150.00

Food - 500.00

Clothing - 30.00

Entertainment - 100.00

Security - 90.00

(food for dog) -------------

$1,610.00

-------------

Currently my personal account with my Bank is overdrawn by $6,256.00. A copy of letter from Westpac Bank is attached hereto and marked with the letter "B"."

I told Mr. Maharaj that at the time I had remarked that if the Petitioner were to be believed on that affidavit it would be impossible for him to pay the Respondent even one cent by way of maintenance and that it seemed to me something would have to be done to enable her and the twins to receive some interim maintenance. I also pointed out to Mr. Maharaj that in paragraph 12 of that same affidavit the Petitioner stated that he believed no maintenance was payable by him in respect of the twins it being the joint responsibility of both parents to contribute.

I also informed Mr. Maharaj that I had said to Mr. Chandra that it seemed to me the Petitioner would have to re-adjust his way of living.

In fact this was the reason why, given the Petitioner's claims as to his inability to pay any maintenance, that I ordered the sale of the two properties to be expedited.

Thereupon Mr. Maharaj began his submissions and sought to add a further reason why I should grant leave to appeal. He said that if I were to refuse leave this would be inconsistent with my ruling of 8th October 1992 in Civil Action No. 116 of 1990 21C Garden Island Woo Il Pacific Co. Ltd. and Others v. National Bank of Fiji and Others. Mr. Maharaj said that in that case I had granted leave to the Defendants to appeal to the Court of Appeal against my refusal to order the Plaintiff to provide security for costs before the action proceeded any further.

Mr. Maharaj claimed that I had granted leave to appeal because the Defendants had been represented by inexperienced lawyers and that in the instant case Mr. Chandra was an inexperienced lawyer.

When I opined that the facts in 21C Garden Island were different from those in the instant matter Mr. Maharaj disagreed and he tendered me a copy of my ruling in that case.

Subsequently after argument concluded I again read my ruling which only confirmed my original impression that I had not granted leave in that case because the Defendants were represented by inexperienced lawyers but rather that because I considered the point of law was sufficiently important for the Court of Appeal to rule on it namely whether the Plaintiff should provide security for costs before the action went any further.

In view of the fact that Mr. Maharaj was counsel for the successful party both before me and the Court of Appeal in 21C Garden Island his submission in the present case has continued to surprise me. It appears to indicate that Mr. Maharaj has not understood my ruling of the 8th of October 1992 in which among other things I stated on page 3 that the fact that allegedly inexperienced lawyers had agreed to a date of hearing being fixed for that case was no explanation at all. That was the only reference I made in that ruling to inexperienced lawyers and it was not, I repeat, given by me as a reason for allowing an appeal to the Court of Appeal.

As I remarked in my interlocutory judgment in the matter of Judicial Review HBJ0020 of 1994 Jagdip Singh v. The Director of Town and Country Planning and Suva City Council, delivered on 28th February 1995 at p.18:

"Counsel who either misquote or do not accurately quote or quote in isolation extracts from legislation or decided cases in the hope of persuading a court do neither themselves nor their client any service. Judges did not come down in the last shower and unless a judge is already familiar with a case or a passage cited by counsel he will invariably look at the Law Report or relevant legislation to satisfy himself that it has been quoted accurately."

In the instant case I did look at my ruling in 21C Garden Island again with the result I have just stated.

Any lawyer who appears in any Court has a duty both to his client and to the Court to know the relevant law and procedure applicable to his client's case. If for some reason the lawyer feels unable either because of ignorance of the law or relevant procedure to appear for a client he has a duty to that client to so inform him and give the client an opportunity to engage other counsel. The Courts will not be made the whipping boy for the inadequacies or inexperience of counsel.

In the instant case I have given the reason why I went beyond the strict terms of the Summons for interim maintenance which reason I have no doubt was understood by Mr. Chandra at the time. To claim now as Mr. Maharaj does that I should not have made any order for interim maintenance until the Respondent had been cross-examined on her affidavit in support completely overlooks the fact that at the time there was no word of protest by Mr. Chandra when I indicated the course I proposed to take.

Ground two of the proposed grounds of appeal to the Court of Appeal seems to suggest that this Court has no power to award interim maintenance. In rebutting such a claim I need to refer only to Section 84(2) of the Matrimonial Causes Act Cap. 51 which reads:

"Subject to this section and to the rules, the court may, in proceedings for an order for the maintenance of a party to a marriage, or of children of the marriage, pending the disposal of proceedings, make such order as it thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances."

I also must comment on the Petitioner's change of mind concerning his liability to pay maintenance to the twin children. Originally as I have stated he disputed this liability but now, and quite correctly, concedes it.

There is one further matter which calls for comment namely that if I were to grant the Petitioner leave to appeal I have every reason to believe that this case could not be heard by the Court of Appeal at its next available sitting in November. To grant leave would mean presumably that the Respondent would have to whistle to the wind in the hope of obtaining any maintenance until at the earliest February 1996. She has satisfied me that she should receive interim maintenance. I am satisfied that the Petitioner's grounds for leave to appeal lack any merit and I therefore reject his motion. Because of the view I have taken about the merits of his application I also order him to pay the Respondent her costs which I fix at $200.00 and order this amount to be paid to the Respondent's solicitors no later than 2nd August 1995.

JOHN E. BYRNE
J U D G E

Legislation and cases referred to in judgment:

Matrimonial Causes Act Cap. 51 Section 84(2).

Civil Action No. 116 of 1990 21C Garden Island Woo Il Pacific Co. Ltd. and Others v. National Bank of Fiji and Others.

Judicial Review HBJ0020 of 1994 Jagdip Singh v. The Director of Town and Country Planning and Suva City Council.

HBD0007D.92S