Sharma v Lata [2005] FJHC 436; HBC0618j.1993s (25 November 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0618 OF 1993

Between:

SURESH PRAKASH SHARMA
f/n Satrughan Sharma
Plaintiff

and

1. JUDITH SASHI LATA
f/n Parshu Ram

2. ANZ BANK LIMITED
Defendants

Mr. D. Sharma for the Plaintiff
Mr. V. Maharaj for the Defendant

Date of Judgment: 25 November 2005

JUDGMENT

The plaintiff issued writ of summons dated 30 November 1993 against his former wife Judith Sashi Lata (‘Judith’) seeking in effect ‘matrimonial property settlement’

The claim

The plaintiff claims:

(a) a declaration that the assets and monies are ‘matrimonial property’

(b) an order requiring the defendant to account for whereabouts of the monies and the assets.

(c) An order that the assets and monies are not to be disposed off or dealt with in any way until the determination of the issues relating to the ownership and distribution of such property.

The learned counsel for the defendant Mr. Maharaj raised a preliminary issue in his written legal submission.

He said that the plaintiff commenced this action as a normal civil action, but the relief sought by him is in the nature of division of matrimonial property. He says that this claim really should be under the Matrimonial Causes Act, Cap. 51 and which it in actual fact is under the guise of an ordinary civil action.

Under s86 of the Matrimonial Causes Act Cap. 51 (now repealed by Family Law Act 2003 (Act No. 18/03) there is provision for ‘settlement of property’. It provides:

“The Court may, in proceedings under this Act, by Order require, the parties to the marriage, or either of them, to make for the benefit of all or any of the parties to, and the children of the marriage such a settlement of property to which the parties are, or either of them is, entitled (whether in possession or reversion) as the Court considers just and equitable in the circumstances of the case.”

Sub para 2 of the section stipulates the factors that a Court will take into account when considering settlement of property, one of which happens to be welfare of children.

In the case of Aisha Bi and Aruf Dean v Mohammed Fida Hussain 41 FLR p.85, I held that the matrimonial jurisdiction of a Magistrate was not confined to the limits of their civil jurisdiction. In other words Magistrates have jurisdiction to deal with property settlement irrespective of value of property in matrimonial matters.

Because the plaintiff did not pursue this course counsel says that the claim is misconceived and ought to be dismissed with costs.

Although it is not disputed that the first defendant (Judith) had commenced divorce proceedings against her husband (the plaintiff) on 16 December 1993 on the grounds of his cruelty, and the plaintiff on the other hand commenced this action on 30 November 1993, he could have continued his action under the Matrimonial Causes Act by consolidating it with the divorce action. If he had done this the Court in making settlement would have taken into account maintenance for the welfare of the two children of the marriage as well.

It is to be noted that there is now in force the Family Law Act 2003 (Act No. 18 of 2003) which came into effect on 1 November 2005. Property settlement matters will now be dealt with in the Family Court. The present action was heard by me before the Family Law Act came into force and hence this judgment is as in an ordinary civil action and principles pertaining to settlement under the said s.86 would be applied.

Background

The plaintiff and the first defendant (‘Judith’) were married on 23 May 1984 at Suva. This marriage was dissolved on 31 May 1995.

That over the years a certain sum of money has been accumulated in the bank accounts operated by Judith.

The accounts are operated with the third defendant the ANZ Bank Limited (the ‘Bank’). The account numbers are 272-847 219-85, 272-847 219-30 and 272-847 219-31.

That as a result of certain differences which arose between the defendant and the plaintiff, the defendant moved out of the matrimonial home in September 1993 taking with her some assets acquired during the marriage.

On or about 26 November 1993 there was close to $41,000.00 in fixed account, $2100.00 in the savings account and $220.00 in the passbook account.

The first defendant has denied the plaintiff all access to the bank accounts and the assets of the marriage.

The properties in issue

There are the following two sets of property that are in issue in this case for Court’s determination:

(i) Term Deposit in ANZ Bank Account No. 272-847219-85

(ii) List of Chattels – Defendant’s Document No. 13.

It is an agreed fact that the Plaintiff delivered to Judith’s flat at Bau Street the items which are set out in Document No. 13. The Defendant confirmed receipt of the items whilst giving evidence.

The plaintiff claims that he is entitled to a share in the monies held in the ANZ Bank account; and that the defendant should compensate him for half the value of the items that he delivered to Judith’s flat.

Disputed facts

The disputed facts are:

1. What was the extent of the matrimonial property as at September 1993.
   
2. Whether the monies in the bank account were intended to be joint property.
   

The issues

The issues for Court’s determination are as follows (as stated in the Pre-trial Conference Minutes):

1. What was the extent of the matrimonial property as at September 1993?
   
2. Whether the Plaintiff has any claim to the matrimonial property and if yes, the percentage of his share.
   
3. Whether the Plaintiff has any claim to any part of the monies awarded to the First Defendant in Action No. 234 of 1989, if yes, what percentage?
   
4. Whether the Plaintiff had any claim to the monies held in the other bank accounts, if yes what percentage?
   

Determination of the issues

The plaintiff and the defendant both testified on oath in regard to their respective claims.

I have before me helpful written submissions from both counsel.

I shall now consider the issues.

First issue: What was the extent of the matrimonial property as at September 1993?

On the evidence before the Court it is clear that Term Deposit referred to hereabove and the said List of Chattels (defendant’s document) were all acquired during the marriage of the plaintiff and defendant.

I find this as a fact on the civil standard of proof.

In fact these are the only two “properties” which are in issue for Court’s determination.

As to what portion of the amount in the Term Deposit and how much of the Chattels or their value the plaintiff is entitled to, I shall deal with this aspect in the second issue hereafter.

Second issue: Whether the plaintiff has any claim to the matrimonial

property and if yes, the percentage of his share?

I shall first deal with the issue of who is entitled to the items and how much of it, if any, listed in the defendant’s Document No. 13.

The plaintiff had delivered the items to Judith’s flat at her request. He thought that they were going to make a new start. The defendant ‘kicked’ him out and will have nothing to do with him. They have not lived together ever since that time.

I find on the evidence before the Court that the items in Document 13 were all matrimonial property which were acquired during the course of the marriage and were in the plaintiff’s custody and possession until they were delivered to Judith’s flat.

The value of the property according to the plaintiff in items 1-27 is $17,725.00.

The counsel for the plaintiff has put forward a proposition that even if the Court were to reduce these values by 50%, this would have a valuation of $8862.50.

Mr. Sharma invites the Court to order the defendant to pay the plaintiff 50% of the said sum of $8,862.50 which comes to $4,431.25.

On this aspect of the claim, all that Mr. Maharaj submitted is that the plaintiff ‘did not even produce a list of household items to the Court in support of his claim’ or ‘tender any documentary evidence to support his claim.’

Upon due consideration of all the evidence before the Court and after hearing both counsel, I agree with the figure suggested by Mr. Sharma and accept same as a reasonable figure to be paid to the plaintiff. The items listed in Document 13 are matrimonial property.

Therefore the sum of $4431.25 is awarded to the plaintiff as his share of the matrimonial property under this item of the claim.

Third issue: Whether the plaintiff has any claim to any part of the monies awarded to the first defendant in Action No. 234 of 1989 if yes, what percentage?

On this issue I have before me helpful written submissions from both counsel.

While the parties were still married and lived together, Judith suffered personal injuries in respect of which Court proceedings were instituted on her behalf.

The plaintiff says that he engaged a lawyer Mr. R.I. Kapadia to commence the action.

On 25 November 1997 Mr. Kapadia wrote to the Plaintiff that the case ‘was eventually settled ... with consent and approval of Judith and
Mr. Sharma’.

The action was settled for $47,000 out of which, the sum of $8000 was plaintiff’s solicitor’s costs leaving the balance sum of $39,000.00 which was paid out to the plaintiff. The following extract from the said letter explains what is comprised in the settlement figure:

“A writ of summons was issued on behalf of Judith by us on 13^th July, 1989 claiming damages. The Statement of Claim as per our instructions listed the following special damages:-

Medical and Transport Expenses incurred in

Fiji and Australia 16,522.41

Loss of earnings for 1 year 10,356.00

Loss of personal effects 25.00

Medical Reports 25.00

Police Reports 10.00

_________

$26,938.41

_________

Special damages were not admitted by the solicitors for the defendants. Initially they made a without prejudice offer of $30,000 in full settlement of the claim. This was rejected. After considerable further work and conferences, the claim, was eventually settled for a total sum of $47,000.00 on 20^th November, 1990 with the consent and approval of Judith and Mr. Sharma. This was an all inclusive global figure which was not separated into various heads. Our costs were agreed at $8,000 which was deducted with the authority of Judith from the sum of $47,000.00 received in settlement. A cheque for a sum of $39,000 was given to Judith”.

As far as the claim against the funds held in ANZ Term Deposit is concerned, Mr. Sharma has made lengthy submissions on the items shown in Mr. Kapadia’s letter suggesting that the plaintiff should have an equal claim in the amount held in the Bank.

Mr. Sharma says that this amount is matrimonial property as it was the intention of the parties to keep all the funds in a fixed term deposit so that they could buy a family home.

The defendant’s counsel’s submission is that there was no such common intention and the monies belonged to her totally.

Mr. Sharma submits that under s86 of the Matrimonial Causes Act any settlement of property must take into account the parties to the marriage and also the children. He suggested that the term deposit be divided in three equal parts with one third being given to the plaintiff, one third to the defendant and the remaining one third to be divided equally and held in trust for the two children for their education and welfare.

The law

I am now led to a consideration of the correct principles to apply on the subject of settlement of matrimonial property.

I have already referred to the statutory provision in property settlement in section 86.

It is not in dispute that the amount in the Bank is the money paid out to Judith on settlement of personal injury claim. The question is what is the existing interest of the plaintiff in this sum. It has to be remembered that the parties have lived separate and apart and are now divorced.

The personal injury action commenced whilst the parties lived together and the plaintiff travelled to Australia to see his wife Judith during her treatment there. He said that he also gave her some money but this is disputed by the defendant.

Now I have to decide whether the defendant’s right to money should be disturbed to any degree in the circumstances. I consider that I should, because the plaintiff incurred some expenditure in caring for his wife when she was injured.

In the exercise of my judicial discretion it is just and equitable to do so in all the circumstances.

In coming to this conclusion the following statement of Windeyer J in Sanders v Sanders (1967) 116 C.L.R at pp 380-381 is apt:

“One consideration, in and many cases no doubt the main or only consideration, when an order for the settlement of specific property is sought is how that property came to belong to the party entitled to it. Was it acquired directly or indirectly through the other party? Was it, for example, obtained as a result of a marriage settlement? Was it the result of matrimonial contributions or the endeavours or enterprise of the other party?

Bearing in mind the history of the marriage it is such that it would be inequitable and unjust if a re-adjustment of the rights of the parties in the property was not now made.

Having come to this conclusion it is for me to now consider what order should be made on any of the sums stated in Mr Kapadia’s said letter.

In the conclusion that I have come to, I am supported by the case of In the Marriage of Jacobson (Family Court of Australia – 1998) where it is stated in the headnote:

“per curiam: Where one party saves money or accumulates assets solely from post-separation efforts, the savings or accumulated assets will be credited to that party only where the other party has made no contribution, direct or indirect, towards that end.”

The main issue in this case is whether the plaintiff is entitled to any portion of the damages recovered by the wife (Judith) arising out of the action for personal injuries suffered by her.

I am of the view that the interests of the parties in the property such as this being a substantial sum of money awarded as a result of personal injuries claim, can be altered regardless of when or how it was acquired (Family Law by Anthony Dickey 4^th Ed. p 651 – under the Caption ‘Order can be made against any property owned by a party’). In this context the author referred to the case of Williams v Williams [1985] HCA 52; [1985] FLC 91-628 (High Court of Australia at 80,093 (court able to make an order out of damages for personal injuries). It was held in that case:

“(a) There is no general presumption that an award of damages for pain, suffering and loss of amenity should be left out of account in determining what orders should be made under sec. 79” of the Family Law Act 1975.”

Mr. Sharma in his submission asked: ‘Does the Defendant expect the Court to believe that the monies were only for her benefit solely in November 1990? The truth of the matter is that when the defendant decided to leave the plaintiff in 1993 she acquired a windfall in that the term deposit was in her name and she decided to claim the whole amount for herself.’.

The personal injury money is not a ‘windfall’ for this money is not derived from an ‘unexpected or chance event’ such as a spouse winning ‘a substantial amount of money in a lottery’ (Family Law – p 700). The author goes on to say that:

‘Family Court has, however, now made it clear that any such unexpected or chance event should still be considered in the context of contributions by the parties .... The increase in fortune should then be treated as a contribution by one or both of the spouses, depending on the circumstances’. (emphasis added)

This case is not one where there was a ‘windfall’. It has to be treated as one where moneys have been received from personal injury and the principles I have stated in that regard hereabove apply.

For these reasons, in regard to the plaintiff’s claim against the funds held in ANZ Term Deposit, in the light of the just and equitable principle I hold that the plaintiff is entitled to some share in the said funds at ANZ Bank.

Both the plaintiff and defendant have separate Bank accounts of their own and each made his/her own savings.

The plaintiff’s evidence in regard to his accounts are very unsatisfactory. At first he denied that he had a separate Bank account – but later admitted. His evidence that he borrowed $10,000 in cash from his employer to pay for his wife’s medical and travel expenses I do not accept as there is no proof of that borrowing. Similarly, his borrowing of $17,000 from Unique Motor Spares Ltd is a complete concoction. The third item of alleged expenditure of $7000 of paying to Dr. Vinod, a civil servant for his services in accompanying his wife for medical treatment to Australia is not accepted by me as how could a Doctor employed by the Government charge that amount for any service rendered by him.

I have also considered the expenditure alleged to have been incurred by the defendant for her injuries. Her evidence is acceptable but he is also entitled to some expenditure which I consider that he legitimately incurred on her. This sum has to be assessed by me on the evidence.

I find that she did incur considerable expense in her treatment and this was paid for by her from her own funds and some from moneys provided by others as she states.

On the basis of the evidence before the Court and bearing in mind the principles which ought to be applied in a case of this nature which involved compensation for personal injuries, the plaintiff is only entitled to the contribution which he has actually made when ultimately payment of compensation was made.

In my view he would only be entitled to the expenses which he incurred in travelling to Australia and return, accommodation, some expenses on his wife and allegedly paying her some money ($4000) while he was there and other incidental expenses. For these I would assess $8000.00 as being payable to the plaintiff from the lump sum settlement which sum forms part of moneys held in the said Term Deposit with the second defendant.

Fourth issue: Whether the plaintiff had any claim to the monies held in the other bank accounts, if yes, what percentage?

The plaintiff and defendant each kept separate bank accounts. Apart from the said Term Deposit No. 272-847219-85 with ANZ and which is in issue, the other accounts kept by them is no concern here in this case and the parties should be free to draw upon them as they like.

Therefore, out of the ANZ said Term Deposit account the defendant should pay out to the plaintiff the sum of $8000.00 referred to hereabove.

Conclusion

For these reasons, the plaintiff succeeds partially on his claims.

There were only two issues in this case, which concerned Term Deposit in ANZ Bank Account No. 272-847219-85 and List of Chattels being Defendant’s Document No. 13.

It is ordered that the sum of $8000.00 being the plaintiff’s assessed share in the said Term Deposit, be paid out to the plaintiff’s solicitors within 28 days by defendant from the Term Deposit in ANZ Bank Account No. 272-847219-85 And it is further ordered that the sum of $4431.25 be paid by the defendant to the plaintiff’s solicitors being the value of chattels referred to in the Defendant’s document No. 13 as the plaintiff’s share which sum is to be withdrawn from the said ANZ Account and paid out within 28 days making the total payment out the sum of $12,431.25.

On costs, at the conclusion of the hearing I find that the plaintiff has been successful on some aspects and unsuccessful on others. Taking those matters into account, together with the history of this litigation and the parties’ financial circumstances, I do not consider that any order should be made as to costs of these proceedings. Hence each party to bear his or her own costs.

D. Pathik
Judge

At Suva
25 November 2005