Pridgeon v Pridgeon [1996] FJHC 137; Hbd0007x.92s (13 August 1996)

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

Vijay Maharaj for the Petitioner
A. Gates for the Respondent

Date of Hearing: 6th August 1996
Date of Decision: 13th August 1996

DECISION

This matrimonial cause is one of the most protracted I have ever had to deal with professionally or on the bench. Most of the reasons for this are set out in the decision of Scott J. of 27th January 1995 and I shall not repeat them.

Earlier on the 24th of September 1993 Scott J. made a consent order relating to the disposition of matrimonial property between the Petitioner and Respondent and custody of the three children of the marriage. Effect was not given to some of the provisions of that order and when the matter finally came before me first on the 12th of April 1995, Scott J. having disqualified himself from further adjudication in the matter for reasons given in the decision of the 27th of January 1995, it became obvious to me that drastic action was required to resolve the matter as quickly as possible. In the ensuing fifteen months I made various interlocutory orders the details of which now are irrelevant. Finally on the 11th of June this year I was informed by the parties that the only matter now in dispute between them was paragraph 4 of Scott J's order of 24th September 1993 which reads:

"All furniture and other household items owned jointly and in common by the Petitioner and the Respondent to be divided equally and fairly by agreement between the parties hereto."

It was then that I suggested to the parties that rather than take sworn evidence from them as to the location and value of the various items and property in issue the parties consider taking the unusual, but, as I saw it, the most expeditious way of concluding this matter namely that I should act as arbitrator between them and that any decision I gave would be final and without the right of appeal by either party to either the Court of Appeal or the Supreme Court.

On the 18th of June I was informed by counsel that the parties agreed to my suggestion and I fixed the matter then for hearing on 6th August.

On that day I informed the parties of the manner in which I proposed to proceed namely by hearing opening submissions by their counsel and then talking to both parties separately and privately with a view to ascertaining whether there was any common ground between them and, if not, then proceed to dispose of the matter as I thought best.

At the beginning of the hearing I told them that there would be no doubt that neither of them would be completely satisfied by my decision but this was the inevitable result of any litigation or of compromise of litigation. To their credit and I believe also to the credit of their counsel they accepted my proposal and I then took a sworn statement from each of them as follows:

"I swear that I agree that Mr. Justice Byrne is to act as arbitrator today in these proceedings for settlement of property between my former wife/husband Cherie Elizabeth Pridgeon/Anthony Gerard Pridgeon and myself.

I further undertake that I will not appeal the decision of Mr. Justice Byrne in these proceedings to any other Court in Fiji namely the Court of Appeal or Supreme Court, the reason being that I appreciate the desirability of bringing finality to this action so that my former wife/husband and I may now resume our new lives as from today."

I then interviewed the parties separately being assisted in this by a letter written by the Respondent's solicitors to the Petitioner's solicitors on the 18th of June 1996 that left the following matters for decision:

(1) The value of the former matrimonial home at Pacific Villa 88 of which I had earlier ordered a valuation to be obtained with a view to sale. This valuation was by MPC Mosese Property Consultants and was between $170,000-$180,000.00.

(2) The Respondent claimed joint custody of the three children of the marriage but did not wish to enforce the custody of the eldest child James. All three children to reside with the Petitioner.

(3) Access to James was not to be enforced, but he be allowed to contact unhindered his mother if and when he desires.

(4) Access to twins

(i) on alternative basis for long weekends, mid year school breaks and annual school holidays.

(ii) weekends, other than long weekends, by reasonable arrangement.

In view of possible legal problems to give effect to paragraph 11 of Scott J's order counsel for the Respondent informed me that the Respondent would not press for a decision on that paragraph.

I was then supplied by the Petitioner with a list of personal items and expenses. This comprises:

(a) Items that the Respondent admits to have sold during a conference in the offices of Koya & Co. The value of these which was not disputed by the Respondent is $10,800.00 but the Respondent told me that a Foodwarmer Trolley was sold by her for $650.00 for the purpose of buying Christmas presents for the children in the early years of the marriage.

The Petitioner did not dispute this and I therefore consider it fair to deduct the amount of $650.00 from the $10,800.00 leaving the amount of $10,150.00 due to the Petitioner for these items.

The Respondent agreed to return all personal clothing of the Petitioner in her possession and I direct that she do so.

Finally in this heading the Petitioner claims the sum of $2,600.00 for tools which were missing from the house at Pacific Harbour after the Petitioner returned to take possession, the Respondent having had tenants in the house for some 2¼ years.

I accept that these items were missing when the Petitioner returned to the house and I direct that the Respondent pay him the amount claimed.

The next heading (B) comprises items found missing on the Petitioner's return to the Villa. These consist of barbecue equipment, a broken pool pump and a bathroom hot water heater. The pool pump is valued by the Petitioner at $500.00 but the Respondent told me that she paid $84.00 per month for maintenance of the pool while she had the Villa tenanted.

$500.00 seems too high to me to replace a pool pump and bearing in mind the Respondent's evidence I do not propose to allow this item to the Petitioner so that the amount of $4,000.00 claimed under B will be reduced to $3,500.00.

The next item (C) is Debts Left consisting of water rates $800.00 and general rates $450.00. The Respondent agrees that these are her responsibility as she had tenants in the Villa but disputes the amounts claimed by the Petitioner. She suggests they should be $500.00 and $200.00 respectively and I take the Petitioner now to concede this. These items are therefore to be reduced accordingly.

The next item (D) covers repairs needed to the Villa of $14,000.00 which the Respondent admits.

The Respondent disputed the sum of $6,500.00 claimed by the Petitioner as her share of the debt due to Westpac Banking Corporation incurred by her and Mr. Martin Tyler. I am satisfied that the Respondent should pay this. There is a copy letter dated 8th February 1989 annexed to an affidavit of the Petitioner signed by Martin C.D. Tyler on the letterhead of Fiji Air Limited to Westpac Banking Corporation, Thompson Street, Suva stating that the Villa was jointly owned by himself and Mrs. Cherie Elizabeth Pridgeon. This of course was untrue and I see no reason why the Respondent should not contribute half of the amount due.

The Petitioner also claims $1,850.00 for a new cooker because he says the old one in the Villa was neglected by the Respondent and now cannot be used. The Respondent told me that it was still in the Villa but even if it is I am satisfied that it has been so damaged as not to be usable again and I therefore allow this item to the Petitioner.

The final and major item in dispute consists of items which the Petitioner claims are in the possession of the Respondent and which he wants. I shall deal with them separately giving directions as to their disposition with any comment necessary.

Nest Carved Tables Ex Singapore $2,000.00

1 Teakwood Camphorwood Chest 3,500.00

I formed the impression that the Petitioner was particularly attached to these items and although the Respondent told me that she wanted to keep them I direct that they be returned to the Petitioner unless the Respondent is prepared to pay the value stated by the Petitioner.

1 Painting by Lyn Bishop $750.00

I direct that this be returned to the Petitioner.

I direct that the following items be returned to the Petitioner:

1 Antique Crucifix

1 Antique Hand Painted Wall Vase

2 Cane Bucket Chairs (white)

1 Cane Table (white)

1 Sri Lankan Tandori

2 Silver Plated Serving Trays.

The Respondent also claimed the right to retain the 1 Antique Fluted Wood Carved Coffee Table which the Petitioner values at $1,000.00.

On the footing that this coffee table was part of the matrimonial home and shared by both the Petitioner and the Respondent I rule that the Respondent should retain this.

The Respondent stated that the next item claimed, 1 Brass Ship's Barometer which he values at $1,600.00, should also be returned to him. The Respondent told me that she does not have it but I believe that it is something of which the Petitioner is very fond and in the absence of any evidence from the Respondent as to where it is I direct her to allow the Petitioner $1,000.00 for this item.

I direct the Respondent to return the 3 Copper Ships Lamps and 1 Antique Rosewood Chair.

The Petitioner also claims 1 Antique Rosewood Sideboard valued at $1,500.00 but as this was shared by both parties in the matrimonial home I consider the Respondent should be allowed to retain this and I so direct.

The Respondent also claims she does not have the 2 Sri Lankan Vases claimed by the Petitioner. In those circumstances I accept her word and make no order for these.

I direct the return to the Petitioner all 12 Crystal Whisky Glasses and 12 Crystal Beer Mugs all valued at $100.00 each.

From enquiries I have made at Prouds I am told that if these are Waterford Crystal they would cost $80.00 each so that in my view $20.00 per glass and mug should be deducted from the value of each of these claimed. In any event I direct that they be returned to the Petitioner.

The Petitioner claims the return of 3 Antique Cut Glass Trifle Bowls. The Respondent told me there were only 2 which I accept and direct their return to the Petitioner.

The Petitioner claims the return of 1 Antique Cut Glass Sugar Basin which the Respondent wishes to retain. I consider it fair to let her have it and disallow this item for the Petitioner.

The Petitioner also claims 1 Cut Glass Craft Set Salt Pepper Vinegar on Silver Stand for $1,000.00. The Respondent says she does not have this and I make no order as to its return and disallow the amount of $1,000.00 claimed by the Petitioner.

I direct the return to the Petitioner of a Pair of World War German Field Glasses but accept the Respondent's statement that the 2 Nikon Lenses 50mm 35-75mm claimed at $1,000.00 by the Petitioner are not with her and I disallow this item for the Petitioner.

I direct the return of the Brazilian Butterfly Wings Plates to the Petitioner.

The Respondent told me she does not wish to return the 1 Laz-E-Boy Chair valued by the Petitioner at $750.00. As this was used by both parties in the matrimonial home I will allow the Respondent to retain it.

I direct the return to the Petitioner of a Rattan Coffee Table Brass Plate Insert.

The next item claimed by the Petitioner is 2 Tall Carved Wooden Lamps with Rattan Shade $600.00. The Respondent told me she would like to retain this and again on the footing that they were shared by the parties in the matrimonial home I shall allow her to do so.

The Respondent told me that she did not have the 2 Dressing Tables with Drawers claimed by the Petitioner. I accept her word on this and make no order for their return.

The Respondent also wishes to retain the 1 Antique Tea Trolley valued at $500.00. I consider it fair that if she does wish to keep this she should allow the Petitioner $250.00 or return it.

Finally I direct her to return to the Petitioner the Leaded Light Shade formerly in the Villa kitchen.

Summarising the Petitioner's claim for these items I direct the Respondent to allow him $1,000.00 for the Ship's Barometer and $250.00 for the Antique Tea Trolley.

Pursuant to directions I had previously given Villa 308 was sold for $85,000.00 in July 1995 and on the 25th of July I directed that the Petitioner's share of the net profit of this be paid into an interest bearing account in the ANZ Bank Suva by the Chief Registrar of this Court in the name of the Petitioner and that no money be paid out of this account without the order of this Court. The term deposit expires on the 12th of November 1996 and is currently standing at $29,681.92 which for purposes of arithmetic I shall call $29,680.00.

The Respondent claims arrears of maintenance of $12,000 and states that she wants the money in Court together with another $32,000.00 giving her a lump sum settlement of approximately $62,000 altogether. She says that in making this offer she is willing to give up arrears of maintenance claimed by her at $12,000 which she says is a low estimate of the maintenance due to her.

After considering all the factors I believe it reasonable to allow the Respondent $9,500.00 for arrears of maintenance. This means that this together with payment to her by the Petitioner of her half share of the value of the matrimonial home which she allows, I think very reasonably at $50,000.00, that for these two items the Petitioner must pay the Respondent $59,500.00.

Set off against this are the following amounts mentioned previously:

Item (A)

Beds etc. $10,150.00

Tools 2,600.00

Giving a total of $12,750.00 under this heading.

$3,500.00 under Item (B).

$700.00 under Item (C) and all the items claimed by the Petitioner under Item (D) namely repairs $14,000.00, Debt with Westpac $6,500.00 and new cooker for $1,850.00. This giving a total of $22,850.00 under this heading.

I must also allow the Petitioner $1,000.00 for the Brass Ship's Barometer and $250.00 for the Antique Tea Trolley giving a total allowance by the Respondent of $41,050.00 which for ease of calculations I round off to $41,000.00. This will be paid by the money in Court. Deducting this from the Respondent's half share of the value of the Villa 88 and arrears of maintenance of $9,500.00 this means that her net entitlement is $18,500.00 I deduct this from the $29,680.00 in Court and direct that $18,500.00 be paid to the Respondent by this Court on behalf of the Petitioner. This will leave $11,180.00 in the account which I direct to be paid out to the Petitioner by the Chief Registrar of the Court.

The only final comments I wish to make about this unfortunate litigation concern the statement by the Petitioner that he wishes to refurnish Villa 88 to its former beauty. I do not doubt him but I accept the comment by the Respondent that it is the mother and wife that makes a house a home. I personally have no doubt about this.

I was informed by the Respondent that Anthony Junior has a reading problem and that she has taken him to see a professional expert in this field. She believes that he should receive help from this person. I agree. The boy seems to me to be intelligent and it would be a tragedy for him and his parents if this problem were not corrected quickly. If it is not it goes without saying that he would have great difficulty in obtaining employment.

Finally it is my earnest wish that both parties will now bury their past years and as they stated in their sworn statements resume their new lives with new partners as from now.

Caveat on Villa 88 to be removed forthwith.

JOHN E. BYRNE
J U D G E

HBD0007X.92S