Diane Patrice Parsons v Michele Lenore Fleiger
| Jurisdiction | Cayman Islands |
| Judge | Kawaley |
| Judgment Date | 31 March 2020 |
| Date | 31 March 2020 |
| Docket Number | CAUSE NO. 171 OF 2019 |
| Court | Grand Court (Cayman Islands) |
The Hon. Justice Kawaley
CAUSE NO. 171 OF 2019
IN THE GRAND COURT OF THE CAYMAN ISLANDS
Plaintiff's application for summary judgment-enforcement by former wife of consent order in matrimonial proceedings against estate of deceased former husband-whether triable issue-Defendant's cross-application for Request for Further and Better Particulars
Mr Ian Huskisson and Mr Bhavesh Patel of Travers Thorp Alberga on behalf of the Plaintiff
Mr Guy Dilliway-Parry of Priestleys on behalf of the Defendant
The Plaintiff is the former wife of the late Mr Frank Fleiger, and the Defendant, his sister, is the Administrator of Mr Fleiger's Estate.
The divorce took place on September 30, 2015. Mr Fleiger died, seemingly unexpectedly, on December 17, 2017. The Defendant was granted Letters of Administration on February 12, 2018. There is a dispute about the Plaintiffs claim against the Estate.
The present action was commenced on October 14, 2019. The Plaintiff seeks to recover US$250,000 which she would have recovered on her ex-husband's death had he complied with his obligations under a Consent Order dated September 30, 2015 in Cause No. FAM 0120 of 2015 (the “Consent Order”/the “Divorce Proceedings”).
By a Summons dated November 5, 2019, the Plaintiff applied for summary judgment under GCR Order 14. A week later, the Defendant filed a Summons seeking Further and Better Particulars of the Statement of Claim. Both applications came before the Court at the same hearing on February 19, 2020.
The Plaintiff's claim is essentially pleaded in less than 10 lines:
“Life Insurance Policy
4. In the months prior to their divorce, the Plaintiff and Mr Fleiger agreed that following their divorce they would each execute life insurance policies in the sum of US$250,000, naming the other party as the sole beneficiary (the “Agreement”). The Plaintiff has complied with her obligation in this regard.
5. The Agreement is evidenced amongst other things by a Consent Order dated 30 September 2015.
Breach of the Agreement
6. In breach of the Agreement, Mr Fleiger failed to take out a life insurance policy. The Plaintiff has suffered loss as a result of the breach, namely the sum of US$250,000 which she should have received upon his death.”
The Plaintiff in her First Affidavit deposes as follows:
“ 7. In the lead up to the divorce, Frank and I had agreed that we would each execute life insurance policies in the sum of US $250,000, naming each other as the sole beneficiary. This was set out in the Divorce Decree at paragraph 23 (the Agreement).
8. I complied with my part of the Agreement and took out a life insurance policy via Americo on 10 October 2019…Frank did not comply with his part of the Agreement. Had he done so then I would have received US$250,000. This is the basis of my claim.”
The policy naming Mr Fleiger's Estate as beneficiary is exhibited. In paragraph 10 of her Affidavit the Plaintiff responds to the Defendant's Further and Better Particulars Request, most significantly deposing:
“b. The Agreement is set out in the Divorce Decree, though the terms were discussed orally in the lead up to its signing. I am not aware of any documents or information that alter the terms of the Agreement in any way.”
The Defendant in her First Affidavit firstly complains that adequate particulars of, inter alia, “an oral contract” leading up to the Order are required to enable a Defence to be pleaded. However, the summary judgment application is crucially responded to in the following averments:
“16. On proper pleading of the Statement of Claim other defences may be open to me and further issues of fact may emerge but, in any event, there are defences to the whole of the claim. Refinement of their pleading will depend on the case particularised by the Plaintiff.
17. The Plaintiff failed to perform the ‘Agreement’ either by taking out a policy naming Frank as the sole beneficiary or doing so forthwith after the Consent Order.
18. In the 2 1/4 years after the Consent Order and before Frank's death Frank and the Plaintiff evidently varied any agreement about insurance policies so that they were not taken out. I cannot give particulars of such variation at least until discovery but plainly there is an issue of fact to be tried. There was until after his death no suggestion by the Plaintiff of breach of contract or even any suggestion that Frank should take out such a policy.
19. Alternatively, the Plaintiff waived, expressly or alternatively impliedly by her conduct, performance and waited until after Frank's death and the impossibility of him performing to raise any question about it. I draw the Court's attention to what the Plaintiff said about it in paragraph 4.6 of her affidavit in the winding up proceedings FSD Cause number 142 of 2018 (IKJ) related to her and Frank's business company (p. 17).
20. Further, Frank was induced to enter into the Consent Order both by the Plaintiff's parent's collateral contract with him…and by the Plaintiff's own representations relating to the shares in the company. These are evidenced by contemporaneous emails: (pp.25–35). The Plaintiff and her parents now dispute the transfer of a share by her mother to Frank. The Plaintiff waited until rescission was impossible (divorce proceedings abate on death) until asserting a claim.
21. I respectfully suggest that there are obvious and substantial questions of fact to be decided and real defences. I invite the Court to dismiss the Plaintiff's application and give me unconditional leave to defend.”
The Defendant's hotly contested waiver defence relied in part upon the following sworn statement by the Plaintiff in her Affidavit sworn on October 2, 2018 in FSD No. 142 of 2018 (Re DFLM Management Ltd):
“4.6 Whilst we meant to implement the Ancillary Order, we never in fact did so, but continued to act within its spirit. The truth is, after our divorce, our relationship actually improved and we continued to trust and work with each other better than we had towards the end of our marriage. We trusted each other so we didn't feel in a rush to action things. For example, we did not get round to entering into the life insurance policies for $250,000 or transfer any of the properties that we had intended to transfer. Nevertheless, when Frank sold the Shores property, I did not dispute that the sales proceeds would go to him, and endorsed the cheque for him even though the land was still in my name. Similarly, as the various documents show, I thought that we had given effect to our agreement in relation to the shares, but my parents never signed anything and we had not even thought about the necessary formalities for any transfer.”
It is not disputed that, as averred by the Plaintiff in her First Affidavit herein, Mr Fleiger died “suddenly”.
Mr Huskisson, in addition to complaining that no draft Defence had been exhibited in accordance with the usual practice ( Ebanks v Simpson [ 2007 CILR Note 3]) commended the following guiding principles to the Court. Firstly, he referred to ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725 and the following dicta of Moore-Bick LJ:
“12. …It is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better.
13. In cases where the issue is one of construction the respondent often seeks to persuade the court that the case should go to trial by arguing that in due course evidence may be called that will shed a different light on the document in question. In my view, however, any such submission should be approached with a degree of caution. It is the responsibility of the respondent to an application of this kind to place before the court, in the form of a witness statement, whatever evidence he thinks necessary to support his case. Where it is said that the circumstances in which a document came to be written are relevant to its construction, particularly if they are said to point to a construction which is not that which the document would naturally bear, the respondent must provide sufficient evidence of those circumstances to enable the court to see that if the relevant facts are established at trial they may have a bearing on the outcome.”
Reliance was also placed on the following dictum of Ackner LJ in Banque de Paris et des Pays-Bas (Suisse) SA v Costa de Naray [1984] 1 Lloyds Rep 21 at 23:
“It is of course trite law that Order 14 proceedings are not decided by weighing the two affidavits. It is also trite that the mere assertion in an affidavit of a given situation which is to be the basis of a defence does not, ipso facto, provide leave to defend; the court must look at the whole situation and ask itself whether the defendant has satisfied the court that there is a fair or reasonable probability of the defendants having a real or bona fide defence.” 1
These principles were clearly sound. It was also argued that no further particulars of the Statement of Claim were properly required because the Plaintiff's case was clearly and simply an attempt to enforce the terms of an agreement now...
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