EW v PW

• Jurisdiction: Bahamas
• Judge: Winder, J.
• Judgment Date: 18 July 2017
• Court: Supreme Court (Bahamas)
• Docket Number: 2016/FAM/div/00102
• Date: 18 July 2017

Supreme Court

Winder, J.

2016/FAM/div/00102

EW

and

PW

Appearances:

Geoffrey Farquharson for the petitioner

Robert Adams for the respondent

Civil practice and procedure - Whether court had jurisdiction to entertain a summons seeking to vary a consent order — Whether court was functus officio.

Winder, J.

This is my decision on the Petitioner's preliminary objection as to jurisdiction to vary an undertaking made in a consent order.

1 Immediately following the pronouncement of a Decree Nisi on 18 March 2016 the parties entered into a consent agreement to settle the education needs of the child of the marriage and for property adjustment. That consent agreement was memorialized in a consent order of the same date and provided, at paragraph 2(1) and (2) as follows:

2. MATRIMONIAL ASSETS:

(1) The respondent shall immediately seek to liquidate the mortgage over the matrimonial home situate at Park Royal Subdivision, Freeport, Grand Bahama with FirstCaribbean International Bank (Bahamas) Limited thereby releasing the matrimonial home from the said mortgage. The respondent shall convey her interest in the matrimonial home to the Petitioner. The cost of the transfer shall be borne by the Petitioner.

(2) The Petitioner shall convey his interest in Emerald Bay Subdivision, Freeport, Grand Bahama and Fortune Bay Subdivision, Freeport, Grand Bahama to the respondent. The cost of the transfers shall be borne by the respondent.

2 The respondent initially applied by Summons for a variation of the Consent Order pursuant to section 35 of the Matrimonial Causes Act. The Summons of the respondent was settled as follows:

LET ALL PARTIES CONCERNED APPEAR BEFORE HIS LORDSHIP JUSTICE IAN WINDER a Justice of the Supreme Court, in Chambers, sitting at the Supreme Court (Bank Lane) Annex, in the City of Nassau, in the Island of New Providence on Tuesday, the 30th day of May A.D. 2017 at 2:00 o'clock in the after-noon on an application for Variation of the Consent

Order filed herein on the 18th day March, (sic) A.D. 2016 by the respondent pursuant to Section 35 of the Matrimonial Causes Act Chapter 125 of the Statute Laws of the Commonwealth of The Bahamas for an Order:

• 1. That the matrimonial home situate at Park Royal Subdivision, Freeport, Grand Bahama, be sold and after settlement of the outstanding mortgage with FirstCaribbean International Bank (Bahamas) Limited and the costs associated with the sales the proceeds of sale shall be divided between the parties as to 60% to the Petitioner and 40% to the respondent.

• 2. That until the said Properties are sold the parties shall jointly pay the monthly mortgage payment over the said Properties and the homeowner's insurance over the matrimonial home.

• 3. There shall be no order as to costs.

3 At the hearing of the application and upon the respondent seeking to amend the Summons, the Petitioner raised its objections as to jurisdiction. The Amended Summons proposed by the respondent was settled in the following terms:

LET ALL PARTIES CONCERNED APPEAR BEFORE HIS LORDSHIP JUSTICE IAN WINDER a Justice of The Supreme Court, sitting at the Supreme Court (Bank Lane) Annex, in the city of Nassau, in the Island of New Providence on Tuesday, the 30th day of May A.D. 2017 at 2:00 o'clock in the after-noon on an application for Variation of the respondent's Undertaking and the Consent Order filed herein on the 18th day March, (sic) A.D. 2016 by the respondent pursuant to the Inherent Jurisdiction of this Honourable Court, alternatively Section 35 of the Matrimonial Causes Act Chapter 125 of the Statute Laws of the Commonwealth of The Bahamas for an Order:

• 1. That the matrimonial home situate at Park Royal Subdivision, Freeport, Grand Bahama, be sold and after settlement of the outstanding mortgage with FirstCaribbean International Bank (Bahamas) Limited and the costs associated with the sales the proceeds of sale shall be divided between the parties as to 60% to the Petitioner and 40% to the respondent.

• 2. That until the said Properties are sold the parties shall jointly pay the monthly mortgage payment over the said Properties and the homeowner's insurance over the matrimonial home.

• 3. There shall be no order as to costs.

4 The Petitioner contends that Court has no jurisdiction to entertain a summons seeking to vary a consent order and accordingly there was no power to entertain an amendment to any such summons.

5 The Petitioner's objection is that the Order made on 18 March 2016 is a Final Order and as such this Court is functus officio. Counsel for the Petitioner contends that the position is even more final where the order was made by consent. The Petitioner says that if any variation of a consent order is to take place it must be by way of appeal or a fresh order for that purpose. The Petitioner relies on Halsbury's Laws of England, (4th ed, 1982) Vol 37 paragraph 390; Ainsworth v. Wilding 1896 1 Ch 673 and Wilson v. Wilson [2011] 1 BHS J No. 79.

6 Halsbury's Laws of England, Volume 37 at paragraph 390 provides:

390. Effect of consent judgment or order. A consent judgment or order is not the less a contract, and subject to the incidents of a contract, because there is superadded the command of the Court, and its force and effect derives from the contract between the parties leading to, or evidenced by, or incorporated in, the consent judgment or order. A consent order must be given its full contractual effect, even if it relates to an interlocutory step in the action.

A party cannot arbitrarily avoid a consent judgment or order, but before such a judgment or order is entered or passed, a consent given by mistake or surprise may be withdrawn, and a consent order, even if approved by the Court, may be set aside if it appears that the consent was given under a misapprehension or misrepresentation.

On the other hand, once a consent judgment or order has been entered or passed, it cannot be set aside by the Court of first instance in the original action, even if it was entered or passed by mistake, but it may be set aside or extended or altered with the consent of all the parties, provided that to do so will not prejudice a third person. It may also be set aside, in a fresh action brought for the purpose, on any ground which may invalidate the agreement on which it is founded. Moreover, where the consent order or judgment is still executory, the Court may refuse to enforce it if it would be inequitable to do so.

7 The English case of Ainsworth v. Wilding, was a mortgage action in which Thomas Ainsworth, claiming as a second mortgagee against John Wilding, the first mortgagee, for an account of what was due to Wilding under his mortgage on the footing of his being a mortgagee in possession, and for redemption. Ainsworth also claimed damages and other relief against Wilding, and as against other defendants, a third mortgagee, and the mortgagor's trustee in bankruptcy, accounts and foreclosure. At the trial before Romer J. a judgment was taken by consent of all parties which was thereafter duly passed and entered. Wilding subsequently applied to set aside the consent order and for the action to be reheard on the ground that the consent of the plaintiffs and defendants to such order was given by mistake, and that such order does not express the true intentions of the parties thereto, and that in any case the consent of the defendant John Wilding to such order was given by mistake and under a misapprehension as to the true effect of such order, and that such order does not express the true intention of the defendant”

8 Romer J held that after a judgment has been passed and entered — even where it has been taken by consent and under a mistake — the Court cannot set it aside otherwise than in a...