DJ (Junior), DS (Senior) and SW v AR and NK (Grand Cayman) (a Bank)
| Jurisdiction | Cayman Islands |
| Judge | Smellie, C.J. |
| Judgment Date | 05 July 2005 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | 141 of 1999 |
| Date | 05 July 2005 |
Smellie, C.J.
141 of 1999
Grand Court
Civil Practice and Procedure - Application by the plaintiff for an order to set aside an ex — parte order as to the first defendant's costs — Beneficial interest in funds in joint account of the parties — Finding that plaintiff's summons is dismissed and the first defendant shall be entitled to access funds for founding her legal representation on the full indemnity basis.
Counsel for the plaintiffs, Mr. Ross McDonough and Ms. Melanie Crinis of Campbells.
Counsel for the first defendant, Mr. Christopher Russell of Ogier and Boxalls.
On the September 27th, 2001, I made an order requiring the second defendant bank to pay into Court the balance held on account #0036978. That account was held in the joint names of the first plaintiff and the first defendant who were then husband and wife.
I later, by ex-parte order made on 29th March, 2004, allowed the wife, AR, access to the funds paid into Court in order to fund the costs of her defence of the action.
This is the first plaintiff's, DJ's application, for an order to set aside that ex-parte order as to AR's costs.
DJ's case is that AR never had a beneficial interest in the funds in the joint account and can, in any event, no longer properly contend for such a claim; being estopped from so contending by her own renunciation on two occasions separately by Deed and by written declaration of any interest in the funds. He also cites his own reliance on her renunciations for the payment or transfer to her of certain assets (the value of which is disputed) by way of the final settlement of any claim she may have had to a division of matrimonial property.
AR seeks to repudiate her Deed and declaration citing the plaintiff's exercise of undue influence over her, in extracting, by duress, her renunciations expressed in them.
She also cites what she describes as the betrayal of her own legal adviser in respect of the part he played in advising her to make the Deed and declaration. She says she was improperly advised to forego her entitlement to claim one-half of all the matrimonial assets, but for what she says is the small fraction proffered by the Deed; and that he failed to act timeously in the presentation of her case before the Argentine Court, the Court of the parties' domicile.
Further, she points to the first plaintiff's own solemn renunciation in the context of the Argentine proceedings, of any claim to the funds in the bank account. While this renunciation by him may have been made for the expediency — which has been intimated — of avoiding certain tax consequences in Argentina, AR nonetheless asserts that he must be estopped in these proceedings, from arguing contrary to such a formal and solemn renunciation.
Of some moment will be the fact that all the purported renunciations, on both sides, were made after the commencement of these and the Argentine Court proceedings.
From just that brief summary of the allegations and counter-allegations in this case, it will be apparent that the circumstances will require of full examination before the true beneficial interest in the account can be fairly and properly determined.
The starting point will be the fact that the account was a joint account and so prima facie one of equal entitlement, even if that prima facie position can be displaced by a later finding that the amount was so held only for administrative purposes and that the true beneficial entitlement is AR's. This is what is contended on his behalf by Mr. McDonough, citing Steel v. Steel [2001] NPC 141 (at paragraph 5). In actuality, AR claims only 40% of all the amounts which the account held as her share of the proceeds which, she asserts, represent the profits of a boxing promotion business she had with DJ. For his part, he asserts that she had no such interest at all and that all the proceeds of the account represent the income from a...
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