"The Court doth further order that the Respondent do pay maintenance to the Petitioner at the rate of $360.00 (Three Hundred
and Sixty Dollars) per month with effect from 22nd January 1976."
9. That Patrick Joyce Doyle duly paid the Plaintiff maintenance in accordance with with the Decree from the 22nd of January 1976 until
January 1990.
10. On or about 13th February 1990 Patrick Joyce Doyle died an First Defendant was thereahereafter appointed executor and trustee
of his estate.
11. As atmber 1995 arrears of maintenance owed to the Plaintiff amounted to $F25,200.00 computed at d at 70 months at the rate of
$F360.00 per month.
The Petitioner states in her affidavit that the Decree Nisi ordered that she be paid $F360.00 for the rest of her life but this is
not strictly true because the Decree Nisi merely states that the Respondent that is Patrick Joyce Doyle, "pay Petitioner $360.00
per month with effect from 22nd January 1976." It will be seen later that I do not consider this means that maintenance is to
be paid to the Plaintiff only during her late husband's life time.
The Plaintiff states that she considers NZ$70,00is a fair reflection of her expected future income based oned on her estimated life
expectancy and claims this sum in settlement of future maintenance. If the Plaintiff's prediction is correct that means that she
may expect to live to the age of about 90.
The Plff states that the continuous failure by the Defendants to pay her arrears of maintenance tnce together with a lump sum payment
representing further maintenance is causing her great hardship and inconvenience. She has been forced to sell four acres of her land
and all her pine trees to repay a mortgage over that land and avoid a mortgagee sale. The home in which she lives is also mortgaged
and she says that it has been a great struggle for her to keep up with the mortgage payments.
She receives NZ$460.52 petnight from National Superannuation. Her mortgage payments and rates amount to NZ$237.00 pe00 per fortnight
leaving her NZ$223.52 to on. This leaves her with a nett NZ$111.76 per week and she thus has very little money to lito live on. She
has been forced to sell her excess furniture and her car. Her home is in serious need of renovation. The roof is in a bad state of
dis-repair and the roof leaks as the water has damaged the ceiling and comes through to such an extent that she is forced to use
large basins to contain it. The exterior of her house needs to be re-stained.
Her metal drive, some 70 metres long, is in serious need of re-surfacing e-metalling as it has ""pot holes" all over
it. She relies on tankwater and her pump has become faulty and needs to be repaired. Until this matter is resolved she does not have
the money or ability to remedy these problems.
Before turning to the lverning this case I should state that none of the allegations as to facts stated by the Plae Plaintiff is denied
by either of the Defendants. For what it is worth, nor is her claim to have sound health and a life expectancy of some 18 years.
Neither side has provided me with any actuarial figures from which I am entitled to presume that the Defendants concur in the Plaintiff's
own estimates of her life expectancy.
The Defendant's submissions amount purely to a denial of any right remaining in the Plaintiff to maintenance beyond the date of her
husband's death. I shall come to the submissions by the Second Defendant in a moment but before doing so it is desirable to refer
to the Orders sought by the Plaintiff which are set out in the Amended Summons filed on her behalf on 28th February 1996. The relief
prayed for is in the following terms:
"2. An Order that the Defendantforthwith pay all maintenance owing to the Plaintiff includncluding arrears of $25,200.00 as at
November 1995 and interest thereon;
3. An Order that the Defendants do pay a lump sum in the amount of NZ$70,000.00 or such other amount as future maintenance to the
Plaintiff in lieu of the said periodic payments;
4Order that the Defendants do pay costs of and incidental to these proceedings on an indemnidemnity basis;
5. Such other order or orders as this Honourable Court deems just and expedient.&qnt."
It is important to highlight thatrelief in prayer 1 in the Summons has two components, either in addition to or in thin the alternative. The latter relief is in relation to the enforceability of the Deed of Settlement dated 4th June 1975 and hereinafter called (the
"Deed").
The Deed was made on the 4th of June 1975 between Patrick Joyce Doyle of Yanuca Islands, Fiji, Hotel Manager and states that he,
together with his executors, administrators and assigns is hereinafter called the husband and Phyllis Latour Doyle of Auckland, New
Zealand, Married Woman, of the other part. It then recites that the parties had previously issued separate divorce proceedings against
each other, the wife issuing a Petition against her husband on the ground of the husband's adultery in the Supreme Court of New Zealand
and the husband issuing a Petition for divorce against the wife in the Supreme Court of Fiji; that the parties had then agreed to
withdraw their respective Petitions for Divorce and enter into the Deed of Settlement on certain terms and conditions which are then
set out. Here I emphasise the description of her husband: it includes not only himself, but importantly as I consider in these proceedings,
his executors, administrators and assigns.
Clause 1 provides the husband shall pay the sumF360.00 per month to the wife for the rest of her life or u or until her re-marriage.
The Deed also provided a mechanism for resolutiothe parties' existing divorce Petitions in clause 4(iii) whi) which reads:
"After the withdrawal of boe petitions the wife is to issue a new petition in the Magi Magistrate's Court in Fiji for divorce
on the ground of the husband's adultery."
In conformity with clause 4(iii) the wife instituted divorce proceedings constituted as Matrimonial Cause No. 144 of 1975 (Suva Magistrate's
Court) and Matrimonial Cause No. 20 of 1976 (Supreme Court).
As I have said earlier it be will noted is no reference to the Deed in the Decree Nisi. The questiuestion is whether this is relevant
to the application before the Court, the Second Defendant contending it is and thus absolves the estate from any further liability
in maintenance to the Plaintiff, and the Plaintiff contending that despite the absence of a reference to the Deed in the Decree Nisi,
the Deed remains valid and effectual for all purposes to this day. The Plaintiff claims that the Decree Nisi merely reflects the
agreed maintenance in the Deed.
In elaboration of the above, the Second Defendant argues the Deed was intended to be only a temporary one pending the filing of fresh
action in Suva and specifically relating to settlement of the Matrimonial property set out herein.
The Second Defendant submie maintenance order in the Decree Nisi was a completely new order for maintenance effectivective from the
22nd of January 1976. It is further said that the Decree Nisi Order does not state the maintenance payments shall continue for the
wife's life time.
I have referred to numerous cases in the submissions of the parties and to the similarities betweeetween the Fiji Matrimonial Causes Act Cap. 51 and the Commonwealth of Australia Matrimonial Causes Act 1959. It is not surprising there are many similarities between the
Fiji Act and the Commonwealth Act because the former was clearly modelled on the latter.
Section 101 of the Fiji Act is in theses:
"Recovery of moneys as judgment debt
(1) Where a decree made under this Act orders the payment of money to a person, any moneymoneys payable under the decree may be recovered
as a judgment debt in a Court of competent jurisdiction.
This provision is specifically directed to a decree made unhe Act which in my judgment would include the Decree Nisi misi made in
favour of the Plaintiff awarding maintenance of $360.00 per month. Sub-section 2 provides for enforcement of a decree by leave of
the Court against the estate of the deceased party. The Plaintiff's application and indeed the prayer in the Amended Summons is for
an order in terms envisaged in this provision.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> In additiom clearly of the opinion that the right of the Plaintiff to continuing maintenance has not not been extinguished by the
Decree Nisi but depends on the Deed re-inforced by Section 101 of the Matrimonial Causes Act.
To my mind the dates of the Deed of Settlement he Decree Nisi are important. It will be noted that the Deee Deed was made eight months
before the Decree Nisi was pronounced and although the Deed is not referred to in the Decree there is nothing in the material to
indicate that between the date of the Deed and the date of the Decree Nisi the parties had changed their minds as to the liability
of the husband to pay continuing maintenance from his estate if necessary after his death to the Plaintiff. It is true looking at
the matter twenty years later, and perhaps to put the question beyond any doubt, it would have been preferable for the Decree Nisi
to have referred to the Deed and incorporated the Deed in the Decree but in my judgment failure to do so is not fatal to the Plaintiff's
case.
In this regard I find econd Defendant's submission that the maintenance order in the Decree Nisi is intended to b to be a completely
new order for maintenance effective from 22nd of January 1976 unconvincing. I have read the various cases cited to me, and here congratulate
counsel for the Plaintiff on the professional quality of his submission containing as it does photocopies of all the relevant cases
including those relied on by the Second Defendant and by the Plaintiff. It is refreshing and it makes the task of a Judge much easier,
to have such material provided in such a very accessible form. The various cases on which the Second Defendant relies are English
and referable to their own facts and the particular legislation which is different from the Fiji legislation. For these reasons I
am of the opinion that in the circumstances the Deed of Settlement dated 4th June 1976 is valid, effectual and enforceable against
the executors, administrators and assigns of Patrick Joyce Doyle's estate and I make the declaration sought in the alternative prayer
No. 1.
I likewise make an order in terms of the first paragraph of paragraph 1 of the relief namely that the Plaintiff have leave to enforce
the maintenance order made in the Suva Magistrate's Court in Matrimonial Cause No. 144 of 1975 against the Second Defendant as executor.
The only remaining question is the amount to which the Plaintiff is entitled.
She is clearly entitled tosum of $25,920.00 in arrears of maintenance up to the date on which the first Summons was iwas issued herein
on the 15th of January 1996.
It is regrettable that the Second Defendant Julie Doyle did not make any submissions in the alternative on quantum in the event that
I held against her on the interpretation of the Decree Nisi, which I have done. There can be no doubt that the Plaintiff is in need
of money to pay for repairs to her house and ordinary living expenses. She has asked for a lump sum in redemption of future maintenance
payments and it is therefore only reasonable that some reduction should be made in the total due to her for an immediate payment.
I must also take into account the contingencies and that there is a possibility she may not live as long as at the moment she expects.
Doing the best I can I consider it to be reasonable to allow the sum of $60,000.00 in redemption of future maintenance payments which,
if added to the arrears of maintenance gives an amount of $85,920.00.
I round this sum off to $86,000.0ere will be judgment for the Plaintiff against Trustee Corporation Limited in the sum of $Fof $F$86,000.00.
I make the award in Fijianars because as at the date I dictated this judgment the exchange rate between the Fijian anan and New Zealand
dollars was approximately the same and I can see no point in making an award in New Zealand dollars. If anything, by making the award
in Fijian dollars the Plaintiff will benefit slightly.
As to costs, the Plaintiff asks that the Defendants pay costs to her on an indemnity basis.n the notorious fact that that the current
scale of costs in the High Court is almost a laughing-stock in the absence of any initiative by those responsible to make the scale
more realistic, I consider it reasonable in this case, in view of the fact that liability has been denied and in view of the fact
that the Defendant Julie DOYLE has made detailed submissions disputing the Plaintiff's right to any future maintenance and the Plaintiff's
obvious need that the Plaintiff's costs be paid by the First Defendant on an indemnity basis and I so order.
JOHN E. BYRNE
JUDGE
Legislation
1. Fiji Matrimonial CaAct Cap. 51.
2. Commonwealth of Australia Causes Act 1959.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> No cases are referred to in the judgment.
The following cases were referred tcounsel
1. Re Bidie (Deceased) (1948) 1 Ch.D. 885.
2. Hinde (1953) 1 All E. R. 171.
3. Johnston v. Krakowski [1965] HCA 57; (1966) A.L.R. 357.
4. Lake v. Quinton & Others (1973) 1 N.S.W.L.R. 111
5. Perpetual Trustee Co. (Ltd.) v. Alldrift & Others [1942] NSWStRp 36; 42 S.R. (NSW) 246.
6. Sudgen (1957) 1 ALL E.R. 300.
Hbc0011j.96s
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/1996/73.html
