Johnson v Johnson

• Jurisdiction: Cayman Islands
• Judge: (Harre, J.)
• Judgment Date: 30 June 1989
• Court: Grand Court (Cayman Islands)
• Date: 30 June 1989

Grand Court

(Harre, J.)

JOHNSON

and

JOHNSON

A. Jones for the petitioner;

R.D. Alberga, Q.C. and N. Clifford for the respondent.

Cases cited:

(1) Davy v. GarrettELR(1877), 7 Ch. D. 473; 47 L.J. Ch. 218, observations of Thesiger, L.J. applied.

(2) Deadman, In re, [1971] 1 W.L.R. 426; [1971] 2 All E.R. 101, dictum of Stamp J. applied.

Legislation construed:

Grand Court (Civil Procedure) Rules, r.3:

‘Subject to the provisions of any law or rule of court, civil proceedings in the Grand Court may be begun by writ, originating summons, originating motion or petition, and

A. claims-

. . .

(b) alleging fraud . . .

shall be begun by writ. . . . ’

Matrimonial Causes Rules, 1987, r.24: The relevant terms of this rule are set out at page 415, lines 12–13:

Family Law-divorce-financial provision-fraudulent conveyance-spouse seeking to set aside fraudulent conveyance by other spouse as preliminary to application for financial provision to start separate proceedings by writ specifically alleging fraud and joining all relevant parties

Family Law-divorce-financial provision-fraudulent conveyance-disposition defeating claim for financial provision-no power to set aside fraudulent conveyance before making order for financial provision

In the course of proceedings for divorce and financial provision, the petitioner sought to have set aside as fraudulent certain leases granted by the respondent”s company.

The petitioner applied by summons, inter alia, to have set aside certain leases granted by the company controlled by the respondent on the ground that they were fraudulent conveyances. She also stated, for reasons specified, that it could not be said that the lessees were innocent third parties who had had no notice of these proceedings.

The respondent applied to strike out the relevant paragraph from the petitioner”s summons. He submitted that, since it was based on an allegation of fraud or conspiracy, the Grand Court (Civil Procedure) Rules, r.3 required that it be pursued by separate action commenced by writ.

The lessees, who had not been made third parties to the proceedings, objected to the petitioner”s seeking a final determination of rights in relation to the leased property without their being properly brought into the proceedings.

The petitioner submitted that (a) under the Matrimonial Causes Rules, 1987, r.24, applications in matrimonial proceedings were to be made by summons, whatever their nature, and that this rule was an exception to the Grand Court (Civil Procedure) Rules, r.3; and (b) even though the Cayman legislation did not incorporate a specific provision giving power to set aside dispositions made with the intention of defeating claims for financial provision, the English procedure giving...