Jennifer Lynn Mosko (nee Bogart) v Nicolas Emmanuel Peter Mosko
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Evans, JA |
| Judgment Date | 29 November 2022 |
| Neutral Citation | BS 2022 CA 165 |
| Court | Court of Appeal (Bahamas) |
| Docket Number | SCCiv App. No. 63 of 2022 |
BS 2022 CA 165
The Honourable Mr. Justice Isaacs, JA
The Honourable Mr. Justice Jones, JA
The Honourable Mr. Justice Evans, JA
SCCiv App. No. 63 of 2022
IN THE COURT OF APPEAL
Civil appeal — Family law — Ancillary Proceedings — Property Adjustment — Preliminary Issue to Property Adjustment — Whether the Property Belongs to a Third Party or a Spouse — Rules 9 and 11 of The Court of Appeal Rules — Section 29(1) Matrimonial Causes Act — Extension Of Time — Reason for the Delay — The Time Limited for the Giving of a Notice of Intention to Appeal to The Court of Appeal Where Leave to Appeal Had to First Be Granted From The Supreme Court
The Intended Appellant made an application for a determination of a preliminary issue in ancillary proceeding as to whether property which was used as the matrimonial home was actually a matrimonial asset. It was the intended appellant contention that although it is the property of a Trust established by the intended respondent's father, the intended respondent as a beneficiary of the trust has some interest which is sufficient to make it matrimonial property. The intended respondent's contention was that the property could not be a matrimonial asset, as it is owned by a third party. The judge determined that the property is not a matrimonial asset and could not be the subject of a property adjustment order. The Intended Appellant has applied outside of the time to be granted leave to file and serve a notice of appeal from the order of the Honourable Madam Justice Donna Newton of the Supreme Court dated November 30, 2021. The Court heard the parties and reserved its decision.
Held: application refused; the costs are the Respondent's, such costs to be taxed if not agreed.
The Intended Appellant has been guilty of considerable delay in circumstances where expedition was required. She has provided no acceptable explanation for this delay which has delayed the completion of the substantive matter before the Court. The Court is also satisfied that none of the grounds of appeal proposed has any real or realistic prospects of success. In these circumstances, the Court does not see any basis for granting an extension to allow the proposed appeal to proceed.
Belgravia International Bank & Trust Co. Ltd. and anor v Sigma Management Bahamas Ltd. and anor SCCivApp. No. 75 of 2021 considered
C v C (ANCILLARY RELIEF: TRUST FUND) [2009] EWHC 1491 (Fam) distinguished
Darlene Allen-Haye v Keenan Baldwin SCCivApp. No. 186 of 2019 followed
Miller v MacFarlane [2006] UKHL 24 applied
Omar Chisholm MCCrApp No. 303 of 2014 followed
OS v DS (oral disclosure: preliminary hearing) [2004] EWHC 2376 (Fam), [2005] 1 FCR 494 considered
Rolle v Michael Preuss SCCivApp No 70 of 2020 considered
Sean Collie v Aneka Collie SCCivApp. No. 19 of 2015 followed
SkyBahamas Airlines Limited v Southern Air Charter Company Limited SCCivApp. No. 221 of 2017 considered
Wong and another v Grand View Private Trust Co Ltd — 22 ITELR 190 considered
XW v XH (Financial Remedy: Non-matrimonial Assets) — [2019] 4 WLR 83 considered
Mr. George C. Missick, with Ms. Alecia Bowe, Counsel for the Intended Appellant
Mr. John Wilson, KC, with Ms. Justine Smith and Mr. Alexander Maillis, Counsel for the Intended Respondent
Judgment delivered by the Honourable
. This is an application by the Intended Appellant by way of a Notice of Motion filed on the 8 June 2022 seeking an order that the Intended Appellant (the wife) be granted leave to file and serve a notice of appeal from the order of the Honourable Madam Justice Donna Newton of the Supreme Court dated November 30, 2021 notwithstanding that the time limited for doing so has expired. The aforesaid Notice was supported by the affidavit of Yvette Lynette Hamilton which was filed on the 18 August 2022.
. The application arises from a decision of the Learned Judge on the hearing of a Notice of Intention to Proceed with Ancillary Relief filed by the Intended Appellant (the wife) on the 16 June 2017, wherein she requested a property adjustment order with respect to the matrimonial assets. The parties do not agree on whether Lot 23, Lyford Cay (“the Lyford Cay property”) — the parties' residence during the course of the marriage — comprised matrimonial property. As a result, the learned Judge heard evidence and submissions on the preliminary, issue to determine whether the Lyford Cay property is a matrimonial asset.
. After hearing oral evidence from the parties and Trustee the Learned Judge held that the Lyford Cay property owned by the Mantina Trust was not a matrimonial asset and could not be the subject of a property adjustment order.
. The facts which are relevant were summarized by the learned Judge in her written decision and I set them out here as extracted therefrom.
“2. Most of the facts are undisputed between the parties. To the extent that facts are disputed, what is stated must be taken as positive findings of fact made by me.
3. The Petitioner's father established the Matina Trust by Trust Deed dated 30 May 1991. By the terms of the Trust Instrument, the Petitioner's father was the settlor and protector.
4. Matina Trust holds shares in Matina Too Limited. The Petitioner is a nominee shareholder of two (2) shares in Matina Too Limited. This is evidenced by Declaration of Trust dated 5 th February, 2013 declaring that he holds the shares on trust for the Trustees of Matina: Trust, Katina Mezulanik, Peter Evans and Bruno Roberts.
5. The beneficiaries of the Trust are stated in the Schedule of the Trust Deed as:
“After the death of the survivor of the Settlor and Brunhilda Tina Mosko, the Trustees shall distribute the Trust Fund to the Settlor's children, Nicolas Emmanuel Peter Mosko (birth date: 17 May, 1969) [the Petitioner] and Nicole Ellen Mosko (birthdate: 10 th March, 1967) in equal shares absolutely”
6. By Conveyance dated 19 April 1999, Matina Too Limited purchased the Lyford Cay property. The Conveyance was executed by the Petitioner's father as President of the Company and witnessed by the Petitioner as Secretary of the Company.
7. At the time of the purchase, the H was an Officer (Secretary). He also became a Director in 1999, the year of the purchase.
8. After the Lyford Cay property was acquired and before the house was constructed the H's father requested that the Trustees of Matina Too allow the H to reside in the home. By Letter dated 15 March 2000, co-trustee of Matina Trust, Bruno Roberts wrote to the H's father consenting to his request to allow the H to reside in the home.
9. On 23 March 2000, the H's father wrote to him (H), granting permission to live in the home, built on the Lyford Cay property, rent free but under an obligation for him to pay maintenance fees and utility charges.
10. The parties lived in the Lyford Cay property for seven years according to the H and for 16 years according to W, paid utility bills, and generally maintained the home.”
. The substantive issue before the trial Judge was the distribution of the marital assets and as is required those assets had to first be identified. In the process of identifying those assets a dispute arose relative to the Lyford Cay property where the couple resided during the marriage. The Husband's position was that he has no vested interest in the property; he was merely given the right to occupy the property. He asserted that it is the property of Mantina Trust, of which he is not a vested beneficiary. The Wife, on the other hand, contended that the Husband is a beneficiary of the trust.
. For reasons which are not clear a decision was made to segregate this issue from the substantive proceedings and to decide the issue as a preliminary issue. The trial Judge after hearing the evidence from the parties found that ‘the Lyford Cay Property is the property of the Matina Trust and is not matrimonial property as defined. Accordingly, the Court cannot apply any discretion based on the equitable principles which apply to property adjustment between spouses.’
. It is against this decision of the trial judge that the Intended Appellant seeks to appeal and having failed to file the appeal in the requisite time has filed the current application for an extension of time within which to appeal.
. It is now well established that in our jurisdiction the relevant rule is found at Rule 9 of the Court of Appeal's Rules which provide that:
“9. (1) The Court may, on such terms as it thinks just, by order—
(a) extend the period prescribed by these Rules for the doing of anything to which these Rules apply;
(b) extend the period specified in any judgment, order or direction of the court, or of the court below, for the doing of anything to which the judgment, order or direction relates; or
(c) direct a departure from these Rules in any other way where this is required in the interests of justice.
(2) The power of the court, under the provisions of paragraph (1) to extend any period so prescribed or specified, is exercisable notwithstanding the expiration of the period so prescribed or specified.” My emphasis
. As is evident by rule 9, this Court is vested with wide discretion in arriving at its determination as to whether to grant an extension of time. However, in the case of Omar Chisholm MCCrApp No. 303 of 2014 Adderley JA stated the principles by which this Court will be guided as follows:–
“ 12. It is settled that in exercising its discretion whether to grant or refuse an extension of time the court considers four things: the length of the delay, the reason for the delay, the prospect of success, and the prejudice, if any, to the respondent.”
. In her aforesaid affidavit Ms....
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