Annie Rose Moxam Applicant v Frank Benard Moxam Respondent

• Jurisdiction: Cayman Islands
• Judgment Date: 21 April 2016
• Judgment citation (vLex): [2016] CIGC J0421-1
• Date: 21 April 2016
• Docket Number: CAUSE NO: D0055 OF 2006
• Court: Grand Court (Cayman Islands)

Between

Annie Rose Moxam

Applicant

and

Frank Benard Moxam

Respondent

[2016] CIGC J0421-1

Before

IN CHAMBERS

THE HON. CHIEF JUSTICE

CAUSE NO: D0055 OF 2006

IN THE GRANT COURT OF THE CAYMAN ISLANDS

Order made by consent of the parties for division of matrimonial assets — wife's notice of motion for committal for husband's failure to comply with consent order — husband's cross-application to vary or revoke consent order on grounds of common or mutual mistake as to value of matrimonial assets — whether husband's application should be struck out as an abuse of process of the court or whether it should be allowed to proceed and if so, on what terms — jurisdiction of court to hear applications to vary or revoke consent order.

RULING

1 By consent of the parties, both having been represented throughout the proceedings, this Court made an order on 12th September 2013 for the division of matrimonial assets which the husband, Mr. Moxam, now seeks to set aside or vary. He seeks to doso on the basis that the consensual agreement of the parties was premised upon a fundamental mistake as to the value of some important matrimonial assets.

2 These assets comprised share-holdings in companies which held valuable commercial properties and enterprises in Central George Town (‘the Companies’).

3 On behalf of Ms. Moxam, Ms. Brooks seeks an order to strike out Mr. Moxam's application on the basis that it amounts to an abuse of the process of the Court for himto now seek to interfere with the Consent Order. She makes a number of points which I will discuss below.

4 Before so doing, however, I describe more fully the premise of Mr. Moxam's application.

5 It relies upon a recent valuation of the matrimonial assets, as those assets are said to have existed at the date of the Consent Order on 12 September 2013.

6 That valuation undertaken by Mr. Theodore Bullmore, MA, FCA, shows the following:

Residential properties: (CI$2,362,000 (less CI$460,000 for properties held in trust by Mrs. Moxam for youngest son)	$ 1,902.000
Companies	2,359,000
Bank and Brokerage Accounts	2,979,000
Other Assets	619,000
	CI$7,859,000

7 Compared to that valuation, assets of the following value were or are to be transferred to Mrs. Moxam under the Consent Order:

Residential properties: ($2,362,000 (less $460,000 for properties held in trust by Mrs. Moxam for youngest son)$ 1,902,000 Companies (ascribed value)	2,700,000
Bank and Brokerage Accounts	1,724,774
Other Assets	34,424
	CI$6,361,198

8 Thus, by virtue of the Consent Order, Mrs. Moxam would get some 80% of the assets based on Mr. Bullmore's valuation of the assets at CI$7,859,000 as at the date of the Consent Order.

9 Based on Mr. Bullmore's valuation, if given an even share of the value of the Companies, Mrs. Moxam would have received CI$ 1,179,500 instead of the CI$2,700,000 ascribed value and the difference of CI$ 1,179,500 would have been allocated instead to Mr. Moxam. That division would have given him a settlement of CI$3,018,302 instead of the CI$ 1,497,802 (CI$7,859,000 — CI$6,361,198) which, based on Mr. Bullmore's valuation, it appears he received.

10 Consequently, Mrs. Moxam would have received CI$4,840,698 (CI$6,361,198 – CI$ 1,520,500), giving her roughly 62% of the assets (as valued by Mr. Bullmore at CI$7,859,000) and Mr. Moxam the other 38% as shown in the following table.

TABLE BASED ON MR. BULLMORE'S VALUATION BUT SHOWING AN EVEN SHARE OF THE COMPANIES' VALUE
Particulars	Anne Moxam	Frank Moxam	Total based on Valuation
	CI$	CI$	CI$
Residential Properties	1,902,000	—	1,902,000
Companies	1,179,500	1,179,500	2,359,000
Bank and Brokerage Account	1,724,774	1,254,226	2,979,000
Other Assets	34,424	584,576	619,000
TOTAL	4,840,698	3,018,302	$7,859,000
	Approx. 62%	Approx. 38%

11 On the face of the matter and taking Mr. Bullmore's valuation as conclusive, there would seem therefore to have been a lopsided settlement in favour of Mrs. Moxam by the allocation to her of more than 80% of the assets.

12 But this outcome, by itself, would be no proper basis for the Court setting aside or varying the Consent Order.

13 As mentioned above, what Mr. Walters asserts and relies upon on behalf of Mr. Moxam, is a common or mutual mistake of the parties which vitiated the agreement upon which the Consent Order is based1. He submits that if the Court is satisfied that such a mistake in the understanding of the true values and division of the assets, in particular the Companies, did in fact occur, there is jurisdiction in the Court to set aside or vary the Order and it would be just to do so.

14 The statutory jurisdiction tovary the Consent Order appears from section 23 of the Matrimonial Causes Law which provides that:

‘Either spouse or the personal representative may make an application for variation of any order made under section 21, and the court, after hearing the parties, may make such variation.’

15 It was said of this provision by the Court of Appeal inRange v Range2, that whatever the intentions of the parties on agreeing an order (and unlike the position in England and Wales under section 25A of the Matrimonial Causes Act 1975): ‘…no clean break principle can therefore be said to be established by the legislation and the Grand Court has jurisdiction to vary all ancillary orders. In our view however, that

jurisdiction ought to be sparingly exercised where the order itself appears to contemplate finality and is made by consent of the parties.’

16 There is, as well, strong and compelling dicta subsequently from the Court of Appeal inMcTaggart v McTaggart3 that, notwithstanding this difference between the English and in the Cayman legislation in that regard, the clean break principle is to be preferred. The Court of Appeal declared that:

‘Anobject of the modern law is to encourage divorced parties to put the past behind them and begin a new life which is not over-shadowed by the relationship which has broken down. It would be inconsistent with this principle if the court could not make, as between the spouses, a genuinely final order….’ (citing the dictum of Lord Scarman from Minton v Minton [1979] A.C. 593, at 608).

17 Thus, it seems to me that a consequence of that combined dicta from these Court of Appeal decisions, is that the desirability of achieving a‘clean break’, is itself a strong reason for regarding the statutory jurisdiction to re-open a case as one to be exercised only sparingly. But the jurisdiction to vary an order undoubtedly exists and so the issue confronting me now is whether Mr. Moxam — if his application were allowed to proceed instead of being struck out — would be able to show proper grounds for the exercise of the jurisdiction.

18 I emphasize that I approach this question in the context of Mrs. Moxam's strike out application, being very mindful, as Bennett J wisely reminded inRose v Rose [2003] EWHC 505 (Fam) that:

‘…it is absolutely essential in ancillary relief cases that the court should be able to put a stop to applications seeking to reopen matters already decided by a court, whether by consent or after a contested hearing, if the court is satisfied that no useful purpose will be served by reopening the matter’.

19 It is already plain that Mr. Moxam is confronted with serious difficulties, some of which are evident from the points of objection raised on behalf of Mrs. Moxam.

20 In the first place, while he asserts that the mistake in valuation of the Companies — that which he claims so severely skewed the outcome in favour of Mrs. Moxam — was a common or mutual mistake, she does not accept that. In this regard, Ms. Brooks asserts on her behalf that Mr. Moxam controlled the Companies and that there are serious concerns of her client that there never was any proper disclosure given about the affairs of the Companies, in particular about the income which they generated.

21 The parties had been estranged for some seven years before the Consent Order was settled on 12 September 2013, the petition for divorce having been filed in 2006. During that period of separation, it is said by Ms. Brooks that Mr. Moxam alone benefitted from the income or dividends derived from the Companies before they were sold in 2011 and 20134 and there has been no accounting for any of it. Such was the level of income that Mrs. Moxam is concerned that although...