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: 20 July 2023
• Docket Number: CAUSE NO: FAM 120 of 2015
• Court: Grand Court (Cayman Islands)

Between:

Dianne Patrice Fleiger

Petitioner

and

Frank George Fleiger (Deceased)

Respondent

Michele Lenore Fleiger as Administratrix of the Estate of Frank George Fleiger (Deceased)

Applicant

Before:

Hon. Mr. Justice Richard Williams

CAUSE NO: FAM 120 of 2015

IN THE GRAND COURT OF THE CAYMAN ISLANDS

FAMILY DIVISION

HEADNOTE

Ancillary Relief — Consent order — Procedure when Court is approving consent ancillary relief orders and Practice Direction No. 1/2013 Consent Orders in Ancillary Relief Proceedings — Application for declaration made pursuant to the Court's inherent powers as to true agreement in a consent ancillary relief order (“the Order”) — Declarations cannot be made pursuant to S 13 Married Woman's Property Act (1977 Revision) post the granting of a certificate of dissolution of marriage — Application for variation of the Consent Order where Summons issued 5 years after Consent Order — Section 23 Matrimonial Causes Act — Test for variation application set out in the ‘Tibbles Criteria’, Tibbles v SIG plc (t/a Asphaltic Roofing Supplies) [2012] EWCA Civ 518.

Appearances:

Ms. Zeena Begum of Priestleys for the Applicant

Ms. Louise Desrosiers & Mr. Bhavesh Patel of Travers Thorp Alberga for the Petitioner

The Background — The identity of the parties and the Applicant's application

1 The hearing 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 (“the Order”) 2 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 Geremia 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.

2 Having regard to the circumstances that existed at the time of the approval of the Order, an almost equal division of the assets was agreed. The Applicant contends that the events that have occurred since the Order was approved are “grossly unfair” and mean that the Petitioner received roughly 85.25% of the assets and the Respondent obtained at best 14.75% of the assets. The Petitioner correctly contends that this percentage calculation is “flawed” as it fails to take into account the liabilities solely met by the Petitioner or the assets which have been liquidated following the date of the Order.

3 The Applicant submits that, due to the way that the Petitioner has construed the Order and due to what has happened post 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”. The Applicant states that, if the Petitioner was to succeed in the Insurance Writ proceedings and in the Mortgage proceedings brought against the Estate 3, the percentage figure would rise to just under 100% in her favour. It is contended that the clarity and fairness will come from the granting of declarations as to the effect of the Order and/or a variation of the Order.

4 The Applicant 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 (“DFLM”) (referred to as ‘Copper Falls Steakhouse’ in the Order) (“the Business”) 4, 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 the financial dealings between the present parties.

5 In the Summons, the Applicant as Administratrix of the Estate seeks the following orders:

• (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;

• (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;

• (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;

• (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;

• (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;

• (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;

• (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:

  • (i) rental income received in respect of the rear rental unit pursuant to paragraph 18 (whether paid into the RBC Account or otherwise);

  • (ii) rental expenses in respect of the rear rental unit pursuant to paragraph 19 (whether paid out from the RBC Account or otherwise);

  • (iii) 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);

  • (iv) 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

  • (v) 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.

• (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”).

6 Although there are five matrimonial properties addressed in the Order 5, it is evident that the dispute concerns the Strand Property upon which the now insolvent “Copper Falls Steak House” and the “rear rental unit” were/are located. The Strand Property was purchased on 11 November 2009 by the Petitioner and the Respondent as joint proprietors. The primary dispute is whether they continued to hold it as joint proprietors following their divorce and pursuant to the Order. The Strand Property was purchased with a CI$875,000 mortgage from the Royal Bank of Canada and the mortgage payments were made jointly from the Copper Falls Steakhouse joint account as

confirmed by paragraph 17 in the Order. The Applicant argues that, putting aside the Strand Property, there is no issue that all of the other matrimonial property under the Order was to be split equally and that it would therefore be “incongruous” for the Order to be interpreted as the Petitioner and Respondent intending the rules of survivorship for the Strand Property

7 The Applicant in her Skelton Argument characterises the remedies, which she says will achieve clarity, fairness and a clean break moving forward, 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.

Background – Proceedings brought relating to the Summons – Strike out Summons and legal issue hearing

8 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:

• 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 was a re-litigation of a claim already settled by the Court in winding-up proceedings and determined by an independent, Court appointed Official Liquidator.

• b. that the claim for a rectification of the Land Register 6, that the claim for delivery up of the Land Certificate 7 and that the injunction claim concerning the Strand Property 8 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...