Between: Dianne Patrice Fleiger Petitioner v Frank George Fleiger (Deceased) Respondent Michele Lenore Fleiger as Administratrix of the Estate of Frank George Fleiger (Deceased) Applicant
| Jurisdiction | Cayman Islands |
| Judge | Mr. Justice Richard Williams |
| Judgment Date | 13 July 2022 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO: FAM 120 of 2015 |
Hon. Mr. Justice Richard Williams
CAUSE NO: FAM 120 of 2015
IN THE GRAND COURT OF THE CAYMAN ISLANDS
FAMILY DIVISION
Ancillary Relief — Consent order — legal issues hearing (i) concerning application for declaration as to true agreement in the order relating to a joint tenancy (ii) concerning lack of clarity as to whether an application expressed by the Applicant to be one for a variation of the order is actually a variation application or ort whether it is a set aside application or an appeal — legal issue hearing at request of Petitioner to determine whether the variation, declaratory relief and disclosure orders claimed in the Applicant's Summons are as a matter of law available to the Applicant — The procedure in relation to the submission of and approval of consent ancillary relief orders
Ms. Zeena Begum for the Applicant
Ms. Amanda Minto & Mr. Bhavesh Patel of Travers Thorp Alberga for the Petitioner
The hearing before me concerns the Summons dated 24 November 2020 (“the Summons”) filed by the Applicant, Ms. Michele Lenore Fleiger as Administratrix of the Estate of her brother Frank George Fleiger (deceased) (“the Respondent”). 1 The Summons relates to the Consent Ancillary Relief Order reviewed and approved by me on 30 September 2015 (“the Order”). The Summons is supported by the Applicant's Affidavit sworn by her on 10 November 2020 and the Affidavit of her sister, Jacqueline Clare Geremis sworn on 12 November 2020. The Deceased's former wife, Dianne Patrice Fleiger (“the Petitioner”), opposes the application for the remedies sought in the Summons and relies upon the Affidavit sworn by her on 5 February 2021.
The Applicant submits that, due to the way that the Petitioner has construed the Order and due to events that have occurred following the approval of the Order, it was “ necessary and in the interests of justice and fairness” for her to issue the Summons to seek assistance from the Court to clarify the effect of the Order and/or vary the Order “to provide for both a fair division of the assets and a clean break”. She also contends that the Order does not make “sensible or reasonable provision for separation of the parties' finances in terms of joint mortgages and and/or joint accounts and instead ties the parties together in a complex arrangement and intermingles the parties' personal financial resources” with those of the liquidated business DFLM Management Ltd (referred to as ‘Copper Falls Steakhouse’ in the Order) (“the Business”) 2, adding that it is not practical for the Estate to be tied into the arrangements with the Petitioner for many years whilst mortgages are paid. She states that, in any event, the Business no longer exists and therefore, a variation of the Order is required to clarify and conclude all of the financial dealings between the present parties.
In the Summons, the Applicant seeks the following orders:
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(1) A declaration that by virtue of the agreement between the parties as embodied in the Order, the parties agreed to sever the joint tenancy in respect of the property Registration Section
WBBS, Block 12C, Parcel 261 (“the Strand Property”) and thereby became entitled to the Strand Property as proprietors in common in equal shares; -
(2) That the Registrar of Lands is to forthwith cause the registration of the Strand Property in the Lands Register to be rectified so that the Strand Property is registered in the names of the Applicant and the Petitioner as proprietors in common in equal shares;
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(3) That the Petitioner is to deliver up to the Applicant's attorneys-at-law forthwith any Land Certificate that has been issued to her in her sole name in respect of the Strand Property for cancellation by the Registrar of Lands;
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(4) That, save for the delivery up of the said Land Certificate referred to in (iii) above, the Petitioner, whether by herself, her servants and/or agents is inhibited and/or restrained from dealing with, selling or otherwise disposing of the Strand Property for so long as the same remains registered in her sole name;
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(5) That the Order be rectified or alternatively varied to provide that the Strand Property be sold and the net proceeds of sale be divided equally between the Petitioner and the Respondent;
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(6) That the Order be varied in such manner as the Court shall consider fair in light of the changed circumstances including the death of the Respondent on 17 December 2017 and the liquidation of the Business so as to provide for a fair division of the fruits of the marriage and a clean break;
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(7) That the Order be varied to remove the requirement at paragraph 23 that each party should execute an individual irrevocable life insurance policy naming the other party as sole beneficiary;
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(8) That, the extent that such provisions of the Order survive any order for variation, there shall be an account in respect of the parties' RBC joint account (#706-402-5) (“RBC Account”) since the date of the Order and generally in relation to the:
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a. rental income received in respect of the rear rental unit pursuant to paragraph 18 (whether paid into the RBC Account or otherwise);
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b. rental expenses in respect of the rear rental unit pursuant to paragraph 19 (whether paid out from the RBC Account or otherwise);
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c. mortgage payments which were to be met jointly from the account pursuant to paragraphs 2, 10 and 14 (whether paid from the RBC Account or otherwise);
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d. distributions which were made of any surplus above the CI$50,000 reserve as referred to in paragraph 18 (whether made from the RBC Account or otherwise); and
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e. any sums paid out of the RBC Account since the date of the Order which are not in relation to permitted expenses pursuant to paragraphs 2, 10, 14 and 19 of the Order.
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(9) That, to facilitate the making of the above orders, the Petitioner do in advance give full and frank disclosure in relation to the entering into of the Order, her income, assets, liabilities and all other matters relevant to the Court's exercise of its statutory powers under the Matrimonial Causes Act (2005 Revision) (“the Act”).
The Applicant characterises the remedies under four headings, namely (i) declaration as to the proper construction of the Order; (ii) variations; (iii) restrictions and/or rectifications; and (iv) requests for further disclosure.
On 5 February 2021 the Petitioner filed a Summons, listed for hearing on 2 June 2021, seeking an order that the Summons be struck out on the following basis:
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a. that the declaration was a spurious claim, frivolous and an abuse of process of the Court, hopeless and wrong in law and fact and is a re-litigation of a claim already settled by the Court in winding-up proceedings and determined by an independent, Court appointed Official Liquidator.
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b. that the claim for a rectification of the Land Register concerning the Land Registry 3, that the claim for delivery up of the Land Certificate 4 and that the injunction claim concerning the
Strand Property 5 were spurious claims, frivolous and an abuse of process of the Court, hopeless and wrong in law and fact. It was claimed that the pleading by the Applicant was embarrassing in its lack of specificity as it did not set out the legal basis of the remedies sought and as pleaded disclosed no cause or action. In relation to the Applicant's claim at paragraph b. in her Summons, it was also pleaded by the Petitioner that the remedy sought was not available to the Court as the rectification sought is to a state of affairs that never existed and seeks a transfer of the property to a person who is deceased. -
c. that the claims to rectify or alternatively vary the Order relating to the Strand Property 6 and for an unspecified variation of the Order “In such manner as the Court consider fair” 7 were spurious claims, frivolous and an abuse of process of the Court, hopeless and wrong in law and fact. It was claimed that the pleading by the Applicant was embarrassing in its lack of specificity, as it did not set out the legal basis of the remedies sought and as pleaded disclosed no cause or action. It was contended that a rectification of an order is not available to the Court on the facts of case and that a partial variation cannot be granted on the grounds relied upon by the Applicant, “which as pleaded are grounds for an appeal over 5 years after the Order and over 3 years from the death of the Respondent”. It was submitted that it was an abuse of process as the order sought for a sale was “so far removed from the intention of the Parties to the divorce”.
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d. that the claim to vary the Order by removing the life insurance policy clause was a spurious claim, frivolous and an abuse of process of the Court, hopeless and wrong in law and fact;
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e. that the claims for disclosure were spurious claims, frivolous and an abuse of process of the Court which do not relate to the other remedies sought and were a “fishing expedition” with the aim of re-litigating afresh the ancillary relief proceedings.
That strike out Summons was later withdrawn as recorded in the order of Carter J (Actg) on 3 June 2021. Although this was not proceeded with, a number of the contentions that would have been better made in a striking out application were resurrected in the present hearing before me.
At the case management hearing held on 25 February 2022, the Court acceded to the Petitioner's request that there be a legal issues hearing fixed at which the Court should make a determination as to whether the relief claimed in the Summons is, as a matter of law, one that is available to the Applicant.
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