Brenda Osborne v Audith Osborne et al

IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
COLONY OF MONTSERRAT
(CIVIL)
A.D 2014
CLAIM NO: MNIHCV201210012
BETWEEN:
BRENDA OSBORNE
and
(1) AUDITH OSBORNE
(2) JOHN PATRICK OSBORNE
Claimant
(as Administrators of the Estate John Alfred Osborne [deceased))
Appearances:
Mr. Emile Ferdinand Q.C for the Claimant
Mr. Jean Kelsick with him
Mr. David Brandt for the Defendants
Ms. Jean Dyer with him
2014: January 27, 28
2014 April 04
Judgment
Defendants
[1] Redhead, J. (Ag): The Claimant Brenda Osborne, a Medical Doctor, is the daughter of John Alfred
Osborne deceased. John Alfred Osborne was a politician and was Chief Minister of Montserrat for
many years. He died on 11 th January, 2011 . John Alfred Osborne was married twice. By his first
marriage he had four children Joan, Shirley, David and the Claimant who was the youngest child of
the first union.
[2] In the early 2000, John Alfred Osborne was married to the First Defendant, that union produced
another four children John, Anderson, Tuyen and Tarique.
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[3] Mr. John Alfred Osborne made a will dated 11th July, 2010, The first and second Defendants are
administrators of the estate of John Alfred Osborne,
[4] By his last will and testament he devised as follow:-
“From my estate including are money, land wherever i.e, maybe to be distributed as written,
My daughter Brenda Osborne is to be given $1,500,000,00 EC dollars because of her special
interest in me,
Joan, Shirley, Shadie, Ruthlyn, is to be given $1,000,000,00 dollars each, David $1 ,OOO,OOQ,QQ,
All other monies and land as far as my other four children John, Andison, Tuyen and Tarique for
their education and support after account debts are paid whatever is left of my entire estate is to be
given to my wife Audith Osborne for her maintenance of herself and her four children,
Monies are invested in Bank of Montserrat, Anguilla National Bank, Caribbean Commercial Bank,
Bank of Anguilla, SI. Patrick Credit Union, Barclays Bank of London, Clico Bank Barbados,
Republic Bank of Kentucky,”
[5] The Claimant claims that apart from the bequest to her by her father in his will that during his life
time the property in Old Towne described as Block 12/6 Parcel 50 was given to her by her father
during his life time, It is in respect of this property that the Claimant has brought this claim against
the Defendants as administrators of the Estate of John Alfred Osborne, seeking inter-alia a
declaration that the property is vested in fee-simple in equity to her,
[6] The Claimant in her Statement of Claim alleges that she and her father enjoyed an exceptionally
close and trusting relationship throughout their joint lives,
[7] The Claimant therefore is relying on certain assurances which she says were made to her by her
father in relation to the said property and the monies she expended on the property in reliance on
the assurances in support of her claim,
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[8} The Claimant alleges that in or about the year 1991 , her father, John Alfred Osborne told her that
he intended to give the said property to her and that she would thereafter regard the property as
belonging to her.
[9} The Claimant alleges that in or about the year 2008, John Alfred Osborne told her that several
persons had approached him wanting to buy the property but the property was not his to sell, as it
was Brenda’s house.
[10) In about 2008, John Alfred Osborne told the Claimant that she had to decide what she was going
to do with the property since people were starting to move back into the area (with the advent of
the eruption of the Soufrier Hills Volcano, there was wholesale evacuation of residents from that
area).
[11J The Claimant alleges that in or about the year 2008 in the State of Kentucky, U.S.A. (where the
Claimant resides) John Alfred Osborne presented her with a Transfer of Land Instrument that had
been prepared by the law firm of Messrs Kelcisk & Kelsick and asked her to sign the said
instrument which the Claimant did as transferee in respect of the property. The instrument named
John Alfred Osborne as transferor.
[12} An unsigned document was exhibited by the Claimant [B013}. This document shows a purported
transfer of Land from John A. Osborne to Brenda Osborne of Registration Section Beachettes
Block 12/6 Parcel 50 that is the said property which is in dispute. The document is undated and
unsigned by either the transferee or transferor.
[13J On the morning of the trial, i.e. 27th January, 2014, Learned Counsel Mr. Ferdinand Q.C. made
application to have admitted in evidence a similar document as B013. That document was signed
by the Claimant, the transferee but not by the transferor. The Claimant testifies that she has a
home in Kentucky. Three Sundays ago i.e. prior to the trial, that would be about the 5th January,
2014, she woke up early, went to her study, she looked at a box of pictures which she had in her
study, she then began to tidy up the bookshelf, she pulled down a picture of her father , her
daughter and herself. She then went to put the picture back in the bookshelf. She says that she
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then felt something under her hand. It was a folded piece of paper. She opened up the paper. It
was a copy of the land transfer which she had signed.
[14] The Claimant explains that she made a copy after she had signed it. Her copy machine was not
working properly so the document had dark lines across it. She further explains that the document
was in the house where she does not normally live. Ms. Osborne says that after she found the
document she contacted her attorney in Montserrat. She travelled to Montserrat on Friday 24th,
January. She brought the document with her. She gave the document to her attorney on Saturday
25th January, 2014.
[15] Mr. Brandt, Learned Counsel, for the Defendants resisted Learned Counsel’s application to have
the document admitted in evidence. Mr. Brandt argues that the document was neither disclosed
nor produced so on that basis it should not be admitted in evidence.
[16] In my judgment that document could not be produced because it was not available when it should
have been produced or disclosed. In my view the Claimant signed the document then forgot about
its existence or where it was. In the circumstances, I admit the document and will decide what
weight if any I should give to this document.
[17] The Claimant says that after she had signed the document John Alfred Osborne told her that he
intended and expected to obtain a waiver from the Government of Montserrat for the land transfer
taxes [fees] that would ordinarily be payable on the said instrument of land transfer.
[18] In her Witness Statement the Claimant says that on the 8th February, 1990, her father had held
legal title to a dwelling house in Old Towne purchased from Robert Muller and Jane Muller. The
said property has since been and is still registered in her father’s name. She says that the property
was badly damaged in 1989 by hurricane Hugo. After which the Claimant says that her father told
her he was going to sell the other Old Towne Property and asked her whether she thought he
should sell the Old Towne property. She told him not to sell the property as they can fix it up.
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I make the observation that Hurricane Hugo was indeed in 1989. So if indeed this Old Towne
house was purchased in 1990 it would have been purchased after Hurricane Hugo. In crossexamination
the Claimant says that she was not aware that when her father bought the property
that it was in a damage condition. She also said that her father was in possession of the property
before he got the legal title on 8th February 1998. In fact when the witness was cross-examined
extensively by Learned Counsel Mr. Brandt and apart from not being able to produce receipts for
many things which she said she purchased and expenses incurred, she was not shaken; she gave
an explanation why she was unable to produce the receipts. I accept her explanation.
[19J The Claimant says that she came home from Trinidad and worked in Montserrat for three months
after hurricane Hugo. She lived in the property but it was extensively damaged. In 1991 , she
moved back to Montserrat after medical school, she says that she then decided that it was time to
renovate the property.
[20J Alford Dyett, an architect prepared a plan at her father’s request. She hired one Leroy Gerald to
carry-out the reconstruction which she and her father oversaw. A southern-side was added to the
structure which included a new washroom and a patio to the master bedroom.
[21 J According to the Claimant, after the major building work was done, she and her father went to
Puerto Rico to choose the tiles, light, fixtures, toilet, windows and doors for the property.
[22J She says once the work was completed her sisters Joan, Shirley and her moved into the property
which they furnished. She says that she has had possession of the property ever since. She
moved abroad but she stayed there when she came home from time to time.
[23J Dr. Osborne says during the reconstruction of the house she personally engaged Orville Payne to
do the tiling work, painting, general repairs and landscaping. She paid him for his services. Dr.
Osborne says that in or about 1991 , her father told her that he intended to give the property to her
and she should regard the property as belonging to her.
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[24] In reliance of what her father told her she did the following:-
a) She spent money on repairing, refurbishing and maintaining the property and in up-keeping of
the garden.
b) She dedicated her time towards managing and improving the property.
c) She paid the insurance premium on the policy on the property with United Insurance Company
Limited under which both the house and its contents were insured in about 2009 pursuant to
her father’s instruction to the insurance company.
[25] In this regard, the Claimant has exhibited two receipts from United Insurance Company Limited in
favour of Brenda Osborne for period of 29th January, 2010 to 29th January, 2011 (B02) in respect
of premium due on policy covering building and contents located in Old Towne. The sum paid was
for insurance for the building $7,020.43, premium on contents $280.82 total sum $7,301.25.
[26] Another premium on insured building $7,020.43 with contents.
[27] Dr. Osborne says on 28th April, 2009 her father went to the Montserrat Utilities Ltd. instructing it
that the utility bills in respect of the property should be sent to her. She has exhibited a copy of
that letter from her father to the Montserrat Utilities Limited. Utility Bill in the sum of $287.21
payable by 27th August, 2010 (B.06) and two other Montserrat Utility Bills dated 24th August, 2011
(B.07). The Claimant says that in or about 1990 her father called her and told her that he needed to
move in the property because of the volcano. He stayed there for about a year or two.
[28] In her Witness Statement, Dr. Osborne says between 1991 and 2012 she spent in excess of
US$100,000.00 on the property i.e. completely reroofing the house, buying locks, putting in air
conditioners, replacing refrigerators, the dishwashers, the stove, the washing machine, the dryer,
the oven, ceiling fans, beds, chairs, doors, mirrors, lights, towels, curtains, sheets, dishes, paying
the pool cleaner, paying for cleanups after volcanic explosions, paying for the electric repairs and
for buying beds, extending the driveway, fitting windows and cutting the tress, maintaining the
lawn, fixing toilets, fixing the heater, water leaks, paying property taxes and paying for pest control.
The Claimant gives dates on which she carried out the above activities.
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[29J Dr. Osborne says that between July and December 2009, she rented the property to Rodney
Molyneaux and Bossun Ajilowara. Rodney Molyneaux was initially there for about a month, after
which they rented the property on a long-term basis. The rental agreement was between Brenda
Osborne and the tenants. She says that she never obtained the consent of her father to rent the
house. The rental agreement came to an end in 2009 when Old Towne had to be evacuated
because of volcanic activities. The Claimant has exhibited a copy of the rental agreement (B.09).
The rental agreement speaks in part to:-
“AGREEMENT FOR TENANCY OF HOUSE IN OLD TOWNE, MONTSERRAT
THIS AGREEMENT made the 29th day of July, 2009 between Brenda Osborne, owner of house in
Old Towne, Montserrat (hereinafter called the “Landlord”) and Bosun Alijowura/Rodney Molyneaux
(hereinafter called the “tenant”).”
I have no doubt that notwithstanding that the rental agreement did not describe the property which
was rented which should have been so described, that the property rented was the property which
is in question.
[30J Dr. Osborne explains that because of the close relationship between herself and her father she did
not think that it was necessary to keep records of transactions in relation to the house. She says
that she and her dad enjoyed an extremely close and loving relationship. He visited her in
Kentucky, U.S.A. two or three times, sometimes four times a year. Many times he would come to
Kentucky just to rest and get away from it all and they would speak once or twice per week when
he John Alfred Osborne was in Montserrat. He would be upset if she missed talking to him for a
week.
[31J The Claimant says that she and her father had an understanding. They spent money freely on or
between each other. For example if he was in Kentucky and he needed medical care, she would
pay for it. Sometimes, if it was a large sum like hospitalization bill he would later reimburse her. If
he needed something to be bought, in the US, she would buy and send it to him. She would pay
for and send his medication for him. If she wanted something in Montserrat sometimes he would
pay once he gets to Kentucky, they would sought it out.
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[32] Dr. Osborne in her Witness Statement asserts that in or about 2008 she was buying a house in
Louisville, Kentucky. As a doctor she did not keep large amounts in liquid assets because of the
possibility of law suits. The rules had changed concerning mortgages due to the 2008 housing
bubble and because she owned 25% of the medical practice she was considered as self employed.
She needed to show the authorities that after making her down payment on the house that she
would still have 6 months to a year on living expense available. She says that as a result of this
predicament her father agreed to lend her US$75,000.00 which she agreed to repay by the August,
2010. In her Witness Statement, Dr. Osborne explains that she was closing on the house by the
end of July and only needed to be able to show that on the day of closing she had those liquid
assets. The Claimant says that her father later told her that he did not want her to pay him back
the US$75,000.00.
[33J On the 13th July, 2010, he signed a gift letter to that effect which the Claimant exhibited (B014).
The gift letter says in part:-
I John Osborne do hereby certify the following:-
“I have made a gift of $75,000.00 to Brenda Osborne whose relationship is my daughter.
The gift to be applied toward the purchase of a property at Abercorne Terrace kg 40241. No
repayment of the gift is expected or implied in the form of cash or by future services.”
Both Mr. John Osborne and Brenda Osborne signed the gift letter.
[34J Mrs. Audith Osborne in her Witness Statement says that she first met John Alfred Osborne, her
husband in 1985. He was at that time Chief Minister of Montserrat. They began an intimate
relationship in or about March, 1985. At that time John Osborne was still married to his former wife
May Elizabeth Osborne who is the Claimant’s mother. John Osborne and his wife were at that time
separated and living apart.
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[35J In December, 1985, Audith Osborne moved into a house in Plymouth with John Osborne and they
lived together until 1995 when the volcanic activity began. John Alfred Osborne and Audith got
married in December, 2000.
[36J Audith Osborne says in her Witness Statement that John Osborne bought two houses in Old
Towne in 1990. He took a loan from Barclays Bank in order to purchase the houses. Both houses
were damaged by hurricane Hugo in 1989. He repaired and sold one. The other house which is
the subject of this action he kept. The house was unoccupied for sometime because according to
Audith it was not repaired. Audith says in her Witness Statement that in or about 1991 her
husband gave permission to his daughter Joan to stay in the Old Towne house. David, John
Osborne’s son from his first wife moved into the house after Joan and sisters took up residence in
the U.S.A.
[37J After the volcano erupted in 1995, John Osborne and his family moved into the house at Old
Towne and lived there until 2001/2002 they moved because of the increased volcanic activity and
Old Towne was considered to be in the unsafe lone. The Osborne family was relocated to a
house in Providence which was paid for by the Government of Montserrat, John Osborne being the
Chief Minister at that time.
[38J Mrs. Audith Osborne says that most of the furnishings at the Old Towne house were left back in the
house. She and her husband went to the Old Towne property from time to time and arranged for
persons to move the ash from the roof and the surroundings. Mrs. Audith Osborne says that her
husband’s children from the first marriage stayed in the Old Towne house from time to time
whenever they returned to Montserrat.
[39J She and her husband continued to pay all the utility bills and insurance premiums in respect of the
Old Towne house after they stopped living in the house. They paid the bills up to 2009 when her
husband then decided that it was unfair for him to pay the utility bills at the Old Towne house when
it was occupied by his adult children and they were not paying him rent.
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[40J On the instructions of her husband, she wrote a letter to Montserrat Utilities Limited (M.U.L) dated
28th April, 2009 requesting that all water, electricity bills be sent to Brenda as from time to time she
would visit for vacation and would ask to ‘stay in my husbands’ Old Towne home”. She states that
at no time did her husband say or hint that he had given the Old Towne house to Brenda.
[41 J Mrs. Audith Osborne explains that the reason for asking Brenda Osborne to pay the insurance and
utility bills is that she occupied the house rent free at Old Towne frequently and her father felt that it
was fair that she should pay the insurance premium and utility bills.
[42] Mrs. Jacqui Ryan, the manager of Jacqui Ryan Enterprises Ltd ., local agent for United Insurance
Co. Ltd in her Witness Statement says she knew John Osborne who was her cousin. Mrs. Jacqui
Ryan says that the Old Towne house was owned by John Osborne and was insured with United
Insurance Co. Ltd. at a value of ECC$995,000 for building and contents.
[43J Sometime in July, 2007 when they called on John Osborne to pay the outstanding premium, he
told her that he had given the house to his daughter Brenda Osborne and complained that she
should be paying all the expenses for the property. Mrs. Ryan advised John Osborne to register
the property in Brenda’s name and have her responsible for her own insurance protection. The
following year he complained again about paying the premium and insisted that they look to
Brenda Osborne for payment.
[44J Jacqui Ryan in her Witness Statement says “Audith Osborne the widow of John Osborne has been
to my office on some occasions before her husband’s death to pay premiums and in the course of
normal conversations has remarked to me that she had told John Osborne many times that having
given Brenda Osbome the aforesaid house at Old Towne he needed to transfer the property in her
name and let her take care of her bills.”
[45J Mrs. Audith Osborne says that she received a reminder from United Insurance Co. informing her
and her husband that the premium was due for the Old Towne house. Based on conversation with
her husband, she decided that she would stop paying the insurance premium for the Old Towne
House since they were not receiving the rent. She attended the office of United Insurance Ltd at
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Brades and informed Ms. Williams, with whom she had dealt with on several occasions, that she
would not be paying premium for the Old Towne house and that she (Ms. Williams) should send
the bills to her husband’s son David. Mrs. Audith Osborne says that was the only conversation she
had with Ms. Williams about the Old Towne house. Mrs. Jacqui Ryan was not present when she
spoke to Ms. Williams. She further states that on no occasion has Jacqui Ryan who is the
manager of Jacqui Ryan Enterprises Ltd. which is the local agent for United Limited Insurance Ltd.
and with whom her husband’s Old Towne home and its contents were insured dealt with her. She
has always dealt with Ms. Williams and on one occasion with Ms. Roisin Toal.
[46] I accept Mrs. Jacqui Ryan’s testimony as truthful. She is, in my view, an independent witness who
in my opinion has no motive to be untruthful. I therefore find as a fact that Brenda Osborne was
made to pay the insurance premium not because she regularly stayed at the Old Towne house,
whenever she visited Montserrat, but so far as John Alfred Osborne was concerned he had given
the house to his daughter Brenda Osborne and he felt that Brenda should pay the premiums
because it was Brenda’s house.
[47] I am fortified in this view having regard to Mrs. Jacqui Ryan’s Witness Statement which I accept.
She says that sometime in 2009 John Osborne spoke with Brenda Osborne on the telephone from
the office telling her that she needed to pay the insurance in her own name so that the bills could
be sent to her.
[48] Mrs. Ryan says that she could hear when Brenda Osborne told her father that he never
complained to her about paying the expenses and that she would send in her brother, David to
transfer the insurance to her name and would forward funds to him to pay the required premium.
[49] John Osborne subsequently cancelled the insurance policy in November, 2009. Brenda Osborne
arranged to establish cover in her name in January, 2010. Since then all correspondence and
communications with Jacqui Ryan’s office have been conducted with Brenda Osborne and her
brother David Osborne and all premiums have been regularly paid by Brenda Osborne.
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[50] In response to Dr. Brenda Osborne’s assertion that she was given a loan of US$75,000.00 by her
father to acquire a house in Kentucky and that her father subsequently made her a gift of that sum;
Mrs. Audith Osborne says in her Witness Statement that Brenda telephoned her father, she heard
the entire conversation because her husband was using the speaker phone. Brenda asked her
father to lend her US$75,000.00 to buy a house in Kentucky. She had a fixed deposit which she
did not want to touch because it was nearing maturity and that she would repay him on 18th
August, 2010.
[51 ] According to Mrs. Audith Osborne her husband said that he had a feeling that Brenda was up to
something but he would wait and see if she paid back the US$75,000.OO as he had also loaned her
some money to buy her first house which she never repaid. However, he asked her to wire the
US$75,000.00 which she did the same day.
[52] Mrs. Osborne says that before she wired the funds she questioned her husband about the balance
on the account. Mrs. Osborne says her husband told her not to worry because Brenda had to give
him back his money on 151 August as he had already helped her to purchase a house before. She
denies that her husband told Brenda that she did not have to repay him the US$75,OOO.OO and that
she should treat it as a loan. Brenda is yet to repay the loan of US$75,000.00 Mrs. Audith Osborne
says [paragraph 34]. In the face of the gift letter referred to above, I do not understand why the first
Defendant would deny that the US$75,000.00 from John Osborne was a gift to his daughter,
Brenda Osborne. In view of “the Gift Letter” .
[53] Brenda Osborne in her witness statement says that she spent in excess of US$100,OOO.00 on the
Old Towne property between 1991 and 2012. She completely re-roofed the house in 2010, bought
locks, bought air conditioners and carried out many other repairs and replaced many fixtures and
fittings.
[54] Mr. Orville Payne in his witness statement says that after hurricane Hugo struck Montserrat in
1989, he carried out repairs to “Brenda Osborne’s House” at Old Towne, Montserrat as the entire
roof of the house was blown off. The repair work started in or about 1990. Brenda Osborne spoke
to him about the repairs while she was in Montserrat and asked him to do the tiling, painting and
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general repairs to her house in addition to landscaping and the gardening which he carried out over
a nine month period. Brenda Osborne paid him for his work.
[55J He saw John Alfred Osborne at the property on a regular basis while he was working there. While
at the property, John Osborne would often say to him “you are taking care of your cousin Brenda”
and “This is Brenda’s House”.
[56J Sylvester Dyer says that he knows both Dr. Brenda Osborne and her brother David Osborne. In
2010 at David Osborne’s request he worked with Jason Lee on Brenda Osborne’s house at Old
Towne Montserrat repairing the roof of the house.
[57J He re-placed wooden boards and asphalt shingles. It took about three weeks to complete the job.
David Osborne paid him EC$125.00 per day for the work.
[58J He says that at David Osborne’s request he also replaced winders in the house and repaired toilets
and one face basin. He also assisted in the extension of the driveway to the house. David Osborne
paid him for doing the work. At David Osborne’s request he has, for some time now, along with
Jason Lee, looked after the garden of Brenda Osborne’s property twice a month, David Osborne
pays him.
[59J The late John Alfred Osborne visited Brenda Osborne’s house when he was doing the repairs to
the roof. Jason Lee also gave a witness statement in which he confirms and supports the evidence
of Sylvester Dyer.
[60J Mr. Kelsick in his written submissions argues that the Claimant’s evidence and that of her
supporting witnesses, have established well beyond a balance of probability that she has satisfied
the elements which entitle her to equitable relief based upon the principles of proprietary estoppel,
to wit:-
(a) John Alfred Osborne at material times was the registered legal owner of the Old Towne
property.
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(b) Assurances were given to the Claimant by her father, in or about 1991, that he intended to give
her the Old Towne property and that she “should now regard it as belonging to her”.
[61] He buttressed his express promise and assurances by allowing the Claimant to exercise
considerable control over and possession of the property for many years and by taking a formal
transfer instrument in which John Alfred Osborne was named as the transferor and Brenda
Osborne was named as the transferee to the property.
[62] I agreed with Learned Counsel that John Alfred Osborne allowed the Claimant “to exercise
considerable control” but I would say that he allowed the Claimant to exercise exclusive control in
that she was able to rent the property to tenants and in that tenant agreement describing herself as
“Landlord”, obviously with her father’s knowledge.
[63] Learned Counsel for the Defendants in his Skeleton arguments submits on behalf of the
Defendants that the legal and beneficial ownership of the property devolved to the Defendants
upon the decease’s death.
[64] The Claimant now expects to inherit the property which according to her, she has been in control of
since in or about 1991 . He postulates that the Defendants are unable to make good her
“expectations” because they were at material times unaware of any such alleged mutual
understanding between the deceased and the Claimant.
[65] I have difficulty in accepting that the Defendants were at all material times unaware of the mutual
understanding between John Alfred Osborne and the Claimant. From the evidence I accept that
even if the Defendants were unaware of this mutual understanding between John Alfred Osborne
i.e. he gave his daughter the assurance, and his daughter, once, that understanding existed the
Claimant acted on it to her detriment that “unawareness” by the defendants has no effect and
cannot affect the outcome.
[66] I think John Alfred Osborne made it known to everyone who had any dealings with the property,
that the house at Old Towne was his daughter’s, Brenda Osborne’s.
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[67] For me not to accept this is for me to find that Jacquie Ryan colluded with Orville Payne, Jason Lee
and Sylvester Dyer, in my mind, that is highly unlikely.
[68] The Defendants contend that even if John Alfred Osborne made the assurances to the Claimant as
she alleges, she has occupied the property in 1991 without paying any rent and has also rented the
property for her own use and benefited. As such on balance the Claimant has positively benefited
and the advantages which she enjoyed far outweighed the disadvantages she alleges she suffered
in relying on the deceased’s alleged assurances and actions.
[69] While I accept that the Claimant by renting the property at Old Towne may have benefited
financially, I say “May have benefited financially” because the Claimant says that the rent she
received, she applied for the use of the house.”
[70] I am aware of no evidence put forward by the Defendants which will destroy this claim. On the flip
side, however, by the Claimant renting the property and describing herself as the landlord in the
agreement with the approval of her father; she is saying, in my judgment she is the owner of the
property.
[71] I say with the approval of her father because he was alive and presumably well at the time, so he
would have been aware of that rental agreement.
[72] Learned Counsel, Mr. Kelsick submits on behalf of the Claimant that the fact that the Claimant may
have had some benefit does not prevent an equity from arising in her favour, nor does it disentitle
her to the benefit of such equitable right. Indeed in Theresa Henry, Marie Henry v Claitus Henry1
Lord Walker in discussing Campbell v Griffin2 opined that the Claimants rent-free occupation of
the property had not extinguished his equity.
I [2010] UK PC.3
2 [200 1] 82 PreR DG23
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Learned Counsel Mr. Brandt argues that paragraph (a) of the Statement of Claim alleges that in or
about 1991 the deceased stated words to the effect “he intended to give the property to the
Claimant and that she should thereafter regard the property as belonging to her,”
[73J According to Mr. Brandt this incident is alleged to have occurred in San Juan, Puerto Rico, He also
argues that the Claimant’s evidence in chief was to the effect that in or about 1991 the deceased
told her that “he intended to give the property to [herJ and that [sheJ should now regard it as
belonging to her”,
[74J Mr. Brandt contends that the Claimant’s evidence in chief was surprisingly less specific in that she
gave no evidence as to the occasion on which this assurance was allegedly made by the deceased
and the context in which it was supposedly uttered,
[75J Shirley Osborne’s evidence in this regard is to similar effect, according to Mr, Brandt. Shirley
Osborne testified that her father told her “In or about 1992/1993 that he had decided to give [herJ
sister Brenda Osborne the said house”, Mr. Brandt Learned Counsel submits that even if this
evidence is accepted by this Honorable Court it, at most, supports a mere statement of present
(revocable) intention with respect to the property, It does not, he submits, support a finding that the
alleged statement was tantamount to an assurance and commitment.
[76J I do not agree with the above submissions of Mr. Brandt. In the first place there is nothing in the
evidence which remotely supports the view that John Alfred Osborne revoked that statement or
intention to give his daughter the property at Old Towne,
[77J Far from any idea or suggestion from Claimant’s father to revoke that statement of offer of the
property or intention that the Claimant should have the property at Old Towne, He
buttressed that Statement and intention that the Claimant should own the property, when on his
visit to Kentucky, in or about 2008, he brought and presented to the Claimant a transfer of Land
Certificate of the said property for the Claimant to sign and which she signed although John Alfred
Osborne did not sign it.
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[78] I find up until that time the deceased had irrevocable intention that his daughter would own the
property at Old Towne and there is nothing in the evidence to indicate that the deceased changed
that intention at anytime thereafter.
[79] I conclude therefore that John Alfred Osborne went to the Great Beyond still with that intention that
his daughter Brenda Osborne is the owner of the property of Old Towne.
[80] Mr. Brandt further submits that the alleged assurances need not detain this Honorable Court since
it seems evident on the Claimants pleaded case and her evidence at trial she did not construe this
statement as an assurance and ccmmitment.
[81] He argues that in the Claimant’s witness statement, she did not rely on this deceased’s alleged
statement in this regard. Mr. Brandt contends that according to the Claimant’s statement her
alleged detriment in reliance was not until sometime in 2008. Learned Counsel accordingly submits
that there cannot be said to be any link or any sufficient link between this alleged assurance and
the conduct on which the Claimant now relies as supposedly constituting detriment.
[82] He contends moreover, the important point to observe is the conduct in question “Is after the other
alleged instances of assurances given by the deceased in 2008”. By “Conduct in question” if the
Learned Counsel means Claimant expenditure in relation to the Old Towne property, this would in
my opinion, normally occur after the assurance was made by the promisor to the promisee.
[83] Learned Counsel Mr. Brandt, in fact refers to the Claimant’s expenditure in relation to the property
at Old Towne. (see Paragraph 17 of Claimant’s witness statement) The overwhelming weight of
authority shows that the elements of proprietary estoppel is that, it is the Claimant’s detrimental
reliance on the alleged assurance which makes it irrevocable detriment therefore it gives
completeness to the doctrine of proprietary estoppel; it supplies meat to the bare bones. [See
American Life Insurance Co. Sumintra].
[84] In my view, the detriment suffered by the promisee must be as a result of the promisor making or
giving the assurance that the promisee will own the property.
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[85] Learned Counsel, Mr. Brandt in his skeleton submissions, submits that the authorities also
establish that “the detriment need not consist of the expenditure of money or other financial
detriment so long as it is something substantial. Whether the detriment is sufficiently sUbstantial is
to be tested by whether it would be unjust or inequitable to allow the assurance to be disregarded,
that is, again the essential test of ability, the detriment must be pleaded and proved” per Lord
Walker in Silette v HoIP.
[86] Mr. Brandt argues that the Claimant must not only allege [detriment] but the evidence advanced
must be sufficient to prove that she in fact spent considerable sums of money, considerable time
and energy on the improvement and upkeep of the property.
[87] He contends that the evidence reveals: she lives in the United States permanently during the time
she alleges she was repairing the house. She was a doctor working in the U.S. Learned Counsel
submits that the Claimant’s case does not in any way contemplate or attempt to satisfy the
requirement.
[88] From the evidence I have no doubt that the Claimant spent substantial sums of money in improving
the property at Old Towne.
[89] In spite of the fact that the Claimant was working and residing in the United States of America, her
brother and agent David Osborne under-took, supervised the repairs of the property on behalf of
the Claimant and paid for work done on the said property by funds advanced by the Claimant.
[90] In this regard I hold that she has spent considerable time and considerable sums of money on the
improvement of the property at Old Towne. Jennings v Rice4 in my opinion is a very interesting
case, in my analysis and determination of the issues and resolution of this matter. The facts in that
case are:- Mr. Jennings spent a considerable amount of his time looking after Mrs. Boyle despite
the fact that from the late 1980’s, Mrs. Boyle paid him nothing from 1994 until her death in 1997.
3 [2001] CL210of 232
4 [2002]EW CA 159
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Mr. Jennings spent every night on a sofa in Mrs. Boyle’s house to provide Mrs. Boyle with the
security out of compassion for her and because Mrs. Boyle assured Mr. Jennings that she would
“See him right”.
[91] It should be noted that there were no promises that she would leave him a share in any identifiable
property, because in my opinion if there was an identifiable property the trust would be affixed to
that property. Mrs. Boyle left nothing for Mr. Jennings. He brought a claim against the estate
contending that he was entitled to the whole of Mrs. Boyle’s estate. The trial judge having
considered what Mr. Jennings might reasonably have earned in the way by arm’s length
remuneration for his services and such professional nursing care might have cost during the last
eight years of Mrs. Boyle’s life assessed the equity as £200,000.00 and ordered the estate to pay
this to Mr. Jennings. This was upheld by the court of Appeal.
[92] With respect, I would say justifiably so, because there was no property on which the equity could
be attached because all Mrs. Boyle said was, “I will see you alright”.
[93] In Henry v Henry (Supra) the promisor made a promise to the promisee, that she would leave her
share in the plot to him on her death if he cared for her until her death and cultivated the plot. The
Privy Council found that by remaining on the plot, did so not only for his own benefit and that of his
family but also for [The Promisor] benefit in that he provided for her and cared for her with food and
cared for her (The Promisee) had opted for a hard life and had effectively deprived himself of the
opportunity of a better life elsewhere and had effectively acted to his detriment. The Privy Council
also found that the detriment was not outweighed by the advantages enjoyed by her.
[94] The Privy Council declared that she was entitled to y, of G’s undivided share in the plot which had
been sold to T. It is noteworthy that the Privy Council did not fully satisfy C’s expectations by
awarding him the share in the plot previously held by G.
[95] The Defendants say that the Claimants claimed that she spent over US$100,OOO.OO on the
property. Mr. Brandt argues that the Claimant has failed to detail how she arrived at this sum.
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[96] Learned Counsel Mr. Brandt submits that the Claimant’s evidence in this regard is deliberately
vague so as to draw the court into speculation, that this amount was actually spent.
[97] Learned Counsel Mr. Kelsick in his submissions argues that the Claimant in her testimony
explained that this close familial bond with her family and the fact that she never expected to have
to provide evidence in a court about her expenditure are reasons why she did not obtain, retain and
produce more documentary evidence such as bills and receipts. Mr. Kelsick argues that in crossexamination
the first named Defendant accepted that in family matters transactions are not always
recorded or documented by receipts.
[98] Mr. Kelsick submits that even without such an admission, the court in its experience will recognize
it to be not an uncommon fact of life that family members who trust each other often, see no need to
verify or document family transactions involving family matters.
[99] I accept this submission in its entirety. First of all the Claimant testifies that she and her father had
a close relationship. The claim of the Claimant that she had a close relationship with her father in
my judgment is amply supported from the evidence in this case.
[100] In his last will and Testament John Alfred Osborne left for the Claimant $1,500,000.00 whereas he
left for the other children $1,000,000.00. John Osborne took time to explain his reasons that he
was favoring the Claimant above the others, “because of her special interest in me”.
[101] The Claimant in her evidence says that if her father wanted anything in the US she would buy it for
him. Likewise if she wanted anything in Montserrat her father would buy it for her, under these
circumstances it is not expected in my opinion that receipts or bills would pass between the parties
having regard to their close relationship.
[102] I also accept that John Alfred Osborne told his daughter Brenda Osborne that the property at Old
Towne was her property. In my view she accepted what her father told her. And having regard to
the close relationship which existed between them, in my view, it is most unlikely that she would
preserve every bill of expenditure item purchased or expense incurred in order to justify
expenditure.
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[103) Moreover, if John Alfred Osborne told his daughter that “she should now consider or regard it (the
property) as belonging to her”, I accept that he made that statement then, it is more
understandable that she would not preserve receipts to justify her expenditure on her own property.
[104) In Poscoe v Turner,5 The Plaintiff declared to the Defendant not once but on a number of
occasions after he had left her “The house is yours and everything in it.” He told a Mrs. Smejkal
and a Mrs. Green the same thing. So Mrs. Smejkal he said that he would put it in a Solicitor’s
hands. Mrs. Green asked him at the end of 1973 if he had shown the Defendant the deed and he
replied “He hadn’t yet but was going to see to it,” In fact he never did. There was no deed of
conveyance, nothing in writing at all. The Defendant stayed on in the house, she thought it was
hers and everything in it, in reliance on the Plaintiff’s declaration that he had given her the house
and its contents. She spent money and herself did work on redecoration, improvements and
repairs. It was held by the Court of Appeal, inter alia, that there was nothing on the facts from
which a constructive trust could be inferred.
[105) In the circumstances equity require the Defendant to be granted a remedy assuring her security of
Tenure, quiet enjoyment and freedom of action in respect of improvements without interference
from the Plaintiff. The Plaintiff would there on be required to give effect to his promise and the
Defendant’s expectations and to perfect the gift.
[106) In my Judgment as I have said above, I hold that the Claimant Brenda Osborne has spent a
considerable sum of money on the said house at Old Towne described as Parcel 50 Block 1216
Beachettes Registration Section in reliance of the promise made by John Alfred Osborne that the
Old Towne house is her house.
[107) In this case, having regard to the detriment suffered by the Claimant in this case, I do not think the
Claimant’s equity could be satisfied in any other way other than an Order that the said house be
conveyed to the Claimant in fee simple.
, ( 17292 ALL ER 949 or 947)
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[108J It is hereby Ordered that the Defendants as Administrators of the Estate of John Alfred Osborne,
(deceased) are hereby ordered to convey the property known as Parcel 50 Block 12/6 to Brenda
Osborne in fee simple forthwith.
[109J The Counter Claim of the Defendants is dismissed.
[110J Costs to be paid by the Defendants to the Claimant to be agreed, if not agreed, Costs to the
Claimant to be assessed on a Prescribed Costs basis.
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;/A/~
. .. . .. . … .. . .. .. ~~~ … …. .
Albert Redhead
High Court Judge