Wellman v Wellman et Al

• Jurisdiction: Bermuda
• Judge: Kawaley, C.J.
• Judgment Date: 26 July 2013
• Court: Supreme Court (Bermuda)
• Docket Number: 112 of 2010
• Date: 26 July 2013

Supreme Court

Kawaley, C.J.

112 of 2010

Wellman

and

Wellman et al

Appearances:

Mrs Lauren Sadler-Best, Trott & Duncan, for the petitioner

Mr. Valdon L. Caesar, Caesar's Law Chambers, for the 1st respondent

The 2nd and 3rd respondent did not appear

Civil practice and procedure - Judgment — Application for clarification of paragraph of judgment.

Kawaley, C.J.

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 centre piece 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 hand I was troubled by the genuine sense of grievance manifested by the petitioner's counsel. No doubt my incomprehension as to why this point was not raised earlier was matched in equal measure by Mrs. Sadler-Best's incredulity at the notion that I had miscalculated the proportional contributions to be paid by each of four joint tenants (as opposed to deliberately departing from the expected apportionment for reasons which were unclear). I carefully reviewed the relevant portions of the Judgment and reassessed the petitioner's belated complaint.

6 I find that paragraph 22 contains an obvious and elementary arithmetical error which ought to have been queried on or before the hearing in January when judgment was handed down. The contribution to be paid to the mortgage expenses paid by the other three of four joint tenants ought to have been 1/4 rather than 1/3rd. Paragraph 4 of the Order dated January 14, 2013 should surely be amended or varied to reflect the contribution of the three co-owners based on a 1/4 share each of the mortgage payments up to the date of the sale. To err may be human and to forgive divine; but clear errors which work an injustice must, wherever possible, be...