Wellman v Wellman

• Jurisdiction: Bermuda
• Judgment Date: 26 July 2013
• Date: 26 July 2013
• Docket Number: Civil Jurisdiction 2010 No 112
• Court: Supreme Court (Bermuda)

[2013] Bda LR 63

In The Supreme Court of Bermuda

Civil Jurisdiction 2010 No 112

Between:

In the Matter of the Partition Act 1855 and the Partition Act 1914

And in the Matter of an application by Wallace Ashley Wellman

Wallace Ashley Wellman

Petitioner

and

Debra Marie Wellman

Barry S Wellman

Dena D Wellman

Respondents

Ms L Sadler-Best for the Petitioner

Mr V Caesar for the 1^st Respondent

The following cases were referred to in the judgment:

Tak Ming Co Ltd v Yee Sang Metal Supplies Co [1972] UKPC 23

Rampersad v Edwards and SimmonsBDLR [2008] Bda LR 76

Astwood v AstwoodBDLR [2012] Bda LR 70

Partition — Calculation in original judgment incorrect — Net equity or Gross value

RULING of Kawaley CJ

1. The Petitioner applied by Summons dated June 20, 2013 for clarification of paragraph 22 of the Court's Judgment herein dated January 14, 2013. In light of the terms of paragraph 4 of the January 14, 2013 Order giving effect to the Judgment, no ambiguity properly arose.

2. The proper basis for calculating the value of the parties' interests in the Property unexpectedly became the centrepiece of the hearing and I decided to reserve judgment and give directions on what I considered must be the correct valuation approach after due deliberation. Litigants do not ordinarily argue over such obvious matters of commercial practice.

3. This pause fortuitously enabled me to properly assess a belatedly raised collateral complaint about the same paragraphs of the Judgment and Order and the proportions in which the mortgage expenses were directed to be shared.

The correct proportions for contributions to mortgage expenses

4. Somewhat curiously, bearing in mind that the Judgment was handed down over six months ago, the Petitioner's counsel queried for the first time why the mortgage contribution referred to in paragraph 22 for each of the three joint tenants was one-third rather than one quarter. The Judgment was sent out in draft before Christmas, over two weeks before it was handed down. No complaint was made about paragraph 22 at the January 14, 2013 hearing. On March 28, 2013, the 1st Respondent's counsel submitted the final Order under cover of letter complaining that the Petitioner's counsel had declined for two months to provide input on the terms of the Order. When the matter was raised orally in Court somewhat indirectly yesterday, it was impossible for me to attach any weight to it.

5. On the one hand I was troubled by the...