Briggs v Branker

THE EASTERN CARIBBEAN SUPREME COURT ANTIGUA AND BARBUDA IN THE HIGH COURT OF JUSTICE CASE NO. ANUHCV2020/0409 BETWEEN: SANDRA BRIGGS Claimant -and- KEVIN BRANKER Defendant Appearances: Mr. Kendrickson Kentish for the Claimant Ms. E. Ann Henry KC for the Defendant --------------------------------------------------------------- 2024: July 10th October 10th --------------------------------------------------------------- Judgment

[1]DRYSDALE, J.: This is a claim for recovery of a debt made by promissory note payable to the Claimant in the amount of ECD$743,201.25/ USD$275,000.00.

Background

[2]The Claimant’s claim is for monies which are due under a promissory note to which the Defendant agreed as part of the matrimonial settlement pursuant to their divorce. The sum claimed is USD$275,000.00 together with interest pursuant to section 57(a)(ii) of the Bills of Exchange Act.

[3]The Defendant says that the payment to which the Claimant claims to be entitled was conditional upon the happening of an event which did not occur. He also asserts that the payment was part of a larger matrimonial settlement agreement pursuant to which he would be entitled to exclusive title to certain real estate which is jointly owned by the Parties.

[4]The proceedings also include a counterclaim by the Defendant for declarations which flow from matters set out in his Defence.

The Pleadings

The Claim

[5]The Parties were married on 15th June 1991 and divorced after 25 years on 13th July 2016.

[6]The Claimant’s case is that on the 13th June 2016 prior to their divorce the Parties entered into a promissory note by which the Defendant agreed as part of the matrimonial settlement to pay the Claimant the sum of USD$275,000.00 on or before 31st May 2019 to compensate the Claimant for any claims she may have in relation to the dissolution of their marriage. The terms of the matrimonial settlement were that the Claimant would be compensated for her interest in the matrimonial property located in Hodges Bay and for her interest in the Business Design Centre, located on Old Parham Road and any jointly held property.

[7]The Claimant sought to resolve the matter of payment of the note simultaneously with an application for an order of support/ancillary relief filed on the 7th February 2020. On 7th August 2020 Kelsick J at paragraph 44 of his judgment on the said application adjudged that he did not feel able to make a lump sum order to replace the obligation of the Defendant under the promissory note, secondly that the note created legal obligations which would have to be addressed separately; thirdly that if the Claimant chose to bring an action under the note, the decision, whether she was successful or not, would necessarily impact any lump sum order; and finally ordered no lump sum payment at that stage.

[8]Thereafter the Claimant made a demand for immediate payment by letter dated 9th November 2020 and presented the note for payment to the Defendant at his workplace, Business Design Centre, on or around 10th November 2020 and at his address of Hodges Bay on or around 13th November 2020. To date the note has not been paid. a. In addition to the sum claimed the Claimant claims interest pursuant to section 57(a) (ii) of the Bills of Exchange Act at the rate of 9% from the date of demand to the date of judgment.

The Defence and Counterclaim

[9]The Defendant asserts that the agreement on which the Claimant has brought these proceedings is not, in law, a promissory note but a contract between the Claimant and the Defendant which was subject to a condition that the Defendant would be bound to perform the contract only if he retrieved the proceeds of another contract made on 23rd June 2015 between his company, Business Design Centre Consulting Limited, and Carib Boots Limited, EMC Group Limited and TW Antigua Holdings Limited. The Defendant says further that it was an implied term of the contract between himself and the Claimant that in consideration of the payment of monies under the agreement, the Claimant would transfer to the Defendant her interest in the former matrimonial house situated at Hodges Bay and a commercial parcel of land situated at Sir George Walter Highway as well as relinquish her claims for spousal support.

[10]The Defendant says that the 23rd June 2015 contract failed in December 2017 when Carib Boots Limited by email advised that the contract was cancelled and as such the performance of the contract to pay the Claimant was rendered impossible. The Defendant says that the Claimant was aware of this.

[11]The Defendant also admitted that the Claimant wrote demanding payment of monies by letter dated 9th November 2020 and that no monies have been paid by him.

[12]He asks the court to dismiss the claim and make an order for the Claimant to pay his costs. If the court dismisses the Defence that the agreement between the Parties was a conditional contract and grants the relief sought by the Claimant, the Defendant asks that the court grant him the relief as set out in his Counterclaim, namely: a. To order the Claimant to transfer to the Defendant, the Claimant’s interest in the former matrimonial home; b. To order the Claimant to transfer to the Defendant the Claimant’s interest in the commercial lands situate at Sir George Walter Highway; c. To order the Claimant to apply for the discharge of the Order for Spousal Support made in Claim No. 115 of 2015; d. An order that the amount of $247,800.00, paid as of the date hereof and all further sums paid hereafter by the Defendant under Claim No.115 of 2015 be set off against any sums due to the Claimant by the Defendant; e. An order that the Claimant do pay the Defendant’s costs; and f. Such further or other relief as to this Honourable Court seems just.

Amended Reply to Defence and Re-Amended Defence to Counterclaim

[13]The Claimant in reply to the Defence denies the allegation that the contract between the Parties was subject to any condition. She also denies the assertion that she knew that it was impossible for the Defendant to perform the agreement between them.

[14]Her case is that on the night before the Parties separated, i.e. 6th September 2015, the Defendant offered her USD$300,000.00 in a lump sum and a Porsche motor vehicle.

[15]The Claimant when offered USD$300,000.00 asked where the Defendant would get that sum from to which the Defendant responded to the effect that the Claimant need not worry about this, and that the Defendant was working on a business deal and the Claimant would get the money within weeks.

[16]On or around the day the divorce was granted the Parties, in the presence of their attorneys, met to sign the promissory note in the amount of USD$300,000.00 but the Defendant would not sign and instead offered USD$250,000.00 on account of the fact that he was paying for the Porsche which would be the Claimant’s when paid for.

[17]There was no condition, express or implied, upon which the agreement between the Claimant and Defendant would be nullified.

[18]As for the Counterclaim the Claimant denies that the Defendant is entitled to the relief sought therein. She also says that the spousal support payments made by the Defendant were paid without reference to nor in consideration of the promissory note and that accordingly the Defendant is not entitled to any set off of the same.

[19]She says it would be unjust and inequitable for the court to give full terms to the agreement as asserted by the Defendant for a number of reasons, namely, the promissory note is expressly stated to be “part of the matrimonial settlement”, the Claimant’s conditions, means, needs and other circumstances, the economic disadvantages faced by the Claimant as a result of the marriage and its breakdown, the economic advantages to the Defendant arising out of the marriage and its breakdown and the court’s finding in ANUHMT2015/0115 that an application for variation is open to the Parties.

[20]The Claimant also puts the Defendant to strict proof of his assertion that he paid the sum of $247,800.00 as spousal support as of 20th January 2020.

The Evidence

[21]Three witnesses were presented for trial namely Sandra Briggs, Kevin Branker and Dr. David Dorsett.

Sandra Briggs

[22]Ms. Briggs is the Claimant in this matter and the former wife of the Defendant. Her witness statement was filed on 18th July 2023.1

[23]Her evidence is that she and the Defendant were married on 15th June 1991 and divorced after 25 years on 13th July 2016. She says that the Defendant is the business executive of Business Design Centre and a former LIAT Pilot. Business Design Centre was founded by the Claimant and the Defendant.

[24]They built a house in Hodges Bay which was their matrimonial home. The Claimant says that in the early part of the marriage she earned a good salary and contributed substantially to the mortgage.

[25]The Defendant eventually retired from his job with LIAT, and the Parties invested in creating Business Design Centre. They also invested ECD$1,000,000.00 in British American Insurance Company from their joint account at First Caribbean International Bank (FCIB).

[26]On 13th June 2016, prior to the divorce, the Parties entered into a promissory note by which the Defendant agreed as part of the matrimonial settlement to pay the Claimant USD$275,000.000 by 31st May 2019. The purpose of the promissory note was to compensate her for giving up her interest in Business Design Centre and the matrimonial home. At the time of their separation in or around September 2015 the house was valued at $2,100,000.00. The house had been offered as security to First Caribbean International Bank for the Parties’ business as well.

[27]The Defendant was to continue to pay the Claimant maintenance as she was not employed when she left Business Design Centre and would need assistance. In essence the promissory note was intended to compensate the Claimant for any claims she may have in relation to the dissolution of the marriage. The promissory note was not conditional on the success of any contractual prospects which the Defendant had with third parties.

[28]By letter dated 6th November 2020 her lawyers made demand for immediate payment on the promissory note. The note was also presented to the Defendant at Business Design Centre in or around 19th November 2020 and at his address at Hodges Bay on or around 13th November 2020. To date the note has not been paid.

[29]As for the Porsche car the Claimant says that the Defendant gave her the vehicle prior to the divorce. She says the Defendant indicated that the vehicle was fully paid for and that it has never been part of the promissory note agreement between them.

[30]Finally, the Claimant asserts that she is entitled to payment on the note and interest at the prevailing commercial rate of 9% from the date of demand to the date of judgment.

[31]On cross examination the Claimant stated that in September 2015 the Defendant had a discussion with her about a divorce. He suggested that in less than 3 months he would pay her the sum of USD$300,000.00 on the condition that she relinquished her interest in the matrimonial house and the business. She agreed as this sum would allow her to return to England and start over. The witness denied that they had a detailed conversation about how the Defendant would obtain the funds to pay her as agreed and stated that he said that he was working on something.

[32]Notwithstanding their agreement, after three months no monies had been paid. Thereafter the parties with their attorneys in June 2016 negotiated a matrimonial settlement in which the Defendant agreed to pay her the sum of USD$275,000.00 on or before 31st May 2019.

[33]The witness agreed that she would relinquish all their joint assets which included the business, the matrimonial house and the commercial property once she had been paid pursuant to the promissory note.

[34]The witness was then questioned about her 2020 application for spousal support. She stated that her rationale was because she did not receive the USD$275,000.00 and because she needed financial support. Later the witness unhesitatingly agreed that had she received the $275,000.00 she would not only have relinquished her interest in the immovable property but would not have approached the court for spousal support.

Kevin Branker

[35]Mr. Branker is the Defendant. He filed his witness statement on 30th June 2023.2

[36]In his statement Mr. Branker says that on 5th September 2015 he told the Claimant that he wanted a divorce, during the discussion the Claimant made it clear that she wanted a monetary settlement despite being aware of their financial status at the time being that their jointly owned property was fully mortgaged and that there were no hidden accounts. The Defendant says that they were barely able to continue payment to their bankers and other creditors.

[37]The Defendant was working on a CIP business deal with Tradewinds Hotel (Carib Boots) at the time which once concluded would be able to generate significant payment to him. He told the Claimant that he would pay her from the proceeds of the business deal if it was successful. Their initial discussion on the matter was that the Defendant would pay the Claimant USD$300,000.00 as he expected to make more than this sum from the deal.

[38]Shortly after the discussion on 5th September 2015 the Claimant moved out of the matrimonial home. Thereafter the parties engaged attorneys to represent them, and the Claimant filed a petition for divorce. The parties’ attorneys were having settlement talks in July 2016 which culminated in a meeting held on 13th July 2016.

[39]In the months leading up to July 2016 the Defendant says that he was going through extreme financial hardship. He missed several mortgage payments and FCIB started proceedings to auction the parties’ home and other property. At no point did the Claimant, who was a co-borrower, offer to assist with the mortgage payments.

[40]In 2016 the Inland Revenue Department conducted an audit on Business Design Centre for the period 2012 to 2014 during which the Claimant had responsibility for paying ABST and business taxes. To his surprise the Defendant was charged with a penalty by the Inland Revenue as the Claimant had not paid over the proper amounts in ABST and taxes.

[41]The Defendant says that he was forced to make arrangements with FCIB to avoid the properties being auctioned, the matter was moved to the bank’s collections department and the loans were all consolidated or refinanced. The mortgages were all originally in the names of both parties as the Defendant’s income was not sufficient to service the loans.

[42]On the day before the petition for divorce was to be heard a meeting to conclude the negotiations for their matrimonial settlement was convened at the offices of the Claimant’s attorneys, Mr. Craig Christopher and Ms. Jan Griffith. The meeting was held on 13th July 2016. During the discussions the Defendant explained to the Claimant’s attorneys that he was involved in a business venture and would be able to make a money settlement if it was successful. He made it clear during the meeting that he would not be paying USD$300,000.00 as he had earlier discussed with the Claimant that he had to pay penalty fees to the Inland Revenue due to her failure to pay ABST and other taxes during the period that she worked in his business. After some discussion the amount was reduced to USD$275,000.00.

[43]Towards the end of the meeting the Claimant’s attorneys produced a promissory note and asked both the Defendant and his attorney to sign. The Defendant indicated that he wanted the document to state that he would only be required to pay if the business transaction with Carib Boots was successful, he says that everyone present at the meeting assured him that the amendment to include reference to the business venture would be included and based on that understanding he and Dr. Dorsett signed the document.

[44]The Defendant left the meeting without any copies of the document as the intent was for them to be amended and forwarded to Dr. Dorsett to be signed and returned.

[45]To the Defendant’s surprise a few years later on 4th June 2019 attorney-at-law Leslie-Ann Brissett sent him a letter demanding payment for the alleged promissory note to which Dr. Dorsett responded by letter dated 11th June 2019.

[46]The Defendant says that he was surprised that the Claimant brought a claim for spousal support as she was aware of his financial circumstances. He says he was also surprised that the Claimant in those proceedings for spousal support brought in or about February 2020 mentioned the document which was signed on the 13th July 2016 because by that time the Claimant knew that the business transaction involving Carib Boots failed and as such the Defendant was not obliged to pay her the funds.

[47]The Defendant asserts that he has continued to pay all the loans which are secured by the former matrimonial home and the land on Sir George Walters Highway without any contribution from the Claimant. He also continues to pay spousal support in the amount of $4,750.00 per month to the Claimant pursuant to an order made in Suit No.115 of 2015. This order was made in July 2020.

[48]The Defendant says that he should not have to pay the Claimant the amount of USD$275,000.00. If it is decided that he must pay the sum claimed the Defendant asks that the Claimant be ordered to sign over the former matrimonial home and the lands at Sir George Walter Highway and that he be given full credit for the spousal support which he has been paying to the Claimant which at the time of filing his witness statement amounted to $385,550.00.

[49]On cross examination the witness admitted that he never instructed his then attorney to write inquiring about the amendment neither did he ever request that the Claimant write her attorneys about it.

[50]He agreed that there are no documents indicating an agreement to amend the promissory note.

[51]He insisted that the settlement was on the basis that the Claimant relinquish her interest in the matrimonial home and land but denied that the agreement also included the business as he asserted that the Claimant was not part of the business.

[52]He also stated that the payment was not an obligation but was out of the generosity of his heart.

Dr. David Dorsett

[53]Dr. Dorsett is an attorney-at-law. He represented the Defendant in his divorce proceedings against the Claimant. He prepared a witness statement which was filed on 30th June 2023.3

[54]During his representation of the Defendant Dr. Dorsett was instructed to seek a settlement between the Defendant and the Claimant. Dr. Dorsett’s stated that his instructions were that the Defendant would pay the sum of USD$275,000.00 to the Claimant in settlement of all claims she may have against him relating to the marriage and matrimonial property once a CIP transaction involving the Tradewinds Hotel (Carib Boots) materialized. The Defendant was prepared to show his commitment to make such a payment by way of a promissory note. This arrangement was communicated by the Defendant and Dr. Dorsett to the Claimant at the law office of Mr. Craig Christopher and Ms. Jan Peltier at the Woods Mall, who at that time were the attorneys for the Claimant, in the presence and hearing of Mr. Christopher and Ms. Peltier. This meeting occurred in or about 2016.

[55]The offer made by and on behalf of the Defendant was accepted by the Claimant at the meeting.

[56]It was agreed at the meeting that an amendment would be made to the document which specifically reflected that the payment would be conditional on the success of the CIP transaction. It now appears that this amendment was not actually done.

[57]Sometime later, the Defendant asked Dr. Dorsett to respond on his behalf to a letter dated 4th June 2019 from attorney-at-law Leslie-Ann Brissett on the matter of the payment of USD$275,000.00. By letter dated 11th June 2019 Dr. Dorsett wrote to Ms. Brissett informing her that the business deal underlying the promise to pay USD$275,000.00 had not materialized. Dr. Dorsett says that he does not recall receiving a response to his letter.

[58]Dr. Dorsett also says that he is aware that at a subsequent court hearing the Claimant testified in open court that such an agreement (i.e., the agreement to pay USD$275,000.00 being dependent on the CIP transaction going through) was not made. He was astonished at her testimony which in no way accords with his knowledge of what happened at the meeting at the office of Mr. Christopher and Ms. Peltier.

[59]On cross examination Dr. Dorsett insisted that the promissory note was signed in good faith but that it was expected that an amendment to that agreement would have been made to reflect that payment was conditional on the successful business transaction with Carib Boots.

[60]He admitted that during the three years between execution of the promissory note and the date for payment he never wrote to inquire about the amendment and suggested that it was of no moment as he had been informed that the business fell through so that negatived the entire agreement.

ISSUES

[61]The issues to be resolved are as follows: a. Whether written promissory note is the extent of the agreement and what are the terms of the agreement b. Whether the Claimant has established a claim for breach of contract c. If yes whether the Defendant’s payments for spousal support should be set off against any amounts owed d. What is the rate of interest applicable to the agreement ANALYSIS Whether the written promissory note is the extent of the agreement and what are the terms of the agreement

[62]The parties executed a promissory note on 13th July 2016 as part of the marital settlement pursuant to divorce proceedings. It was a term of the agreement that the Defendant would pay the Claimant the sum of USD$275,000.00 in full on or before 31st May 2019.

[63]The only other term of the agreement was a term that referred to default of payment and the consequences thereof being that payment in full would immediately become available. As an aside I note that no provision had been made for the payment by installments or in any other manner than in full on the agreed date so this provision appears to be otiose. The agreement was executed before counsel for the parties.

[64]During cross examination the Claimant admitted that the promissory note was executed on the condition that she would relinquish her shares in the matrimonial home as well as a parcel of land situated at Sir George Walter Highway. The promissory note, as previously indicated, lacked any such information and did not reference which properties were part of the settlement agreement. Given the Claimant’s admission that both properties were subject to the note, it is clear that the promissory note did not include all the essential terms of the agreement. Therefore, I agree with counsel for the Defendant that the promissory note was partly written and partly oral. This admission opens the door to consideration of parole evidence and the contention by the Defendant that the agreement was conditional on the success of a particular business enterprise and that it was intended to represent payment for spousal support.

[65]The pith and substance of the Defendant’s Defence is that the promissory note was contingent upon a business venture’s success, which involved a third-party and Cabinet approval. The Defendant argues that the venture was expected to generate a significant profit from which he could comfortably pay the Claimant the agreed sum pursuant to the promissory note. The Defendant’s evidence was supported by his then attorney who insisted that the failure of that business automatically brought an end to the promissory note and furthermore there was no need to amend the promissory note as a consequence of this.

[66]However, the Court finds several key issues with this Defence. Firstly, there is a lack of written communication. Over the period of three years the Defendant made no attempt to amend the promissory note, nor did he attempt to communicate that the note had become void due to the failure of the business. The complete lack of documentation raises questions about the legitimacy of this claim.

[67]Moreover, the Defendant could have included the condition in the promissory note at the time of signing. Despite claiming to have signed in good faith, it appears odd that such an important term that would fundamentally affect the payment obligation and enforceability of the promissory note was omitted. This omission suggests that the Defendant’s current argument is an afterthought, rather than a genuine condition of the promissory note at the time of execution.

[68]Given the above in particular but not limited to the lack of written communication, the several and prolonged missed opportunities to include this term in the note, the importance of this term and that the Defendant a savvy businessman was represented by counsel I am inclined to favour the Claimant’s position over the Defendant’s allegations.

[69]The next issue for consideration is whether it was intended that the marital settlement agreement was to take the place of spousal support. The Defendant relies heavily on the Claimant’s admission that had the payment pursuant to the promissory note been made that she would not have sought spousal support. Accordingly, the Defendant argues that if the Court orders that the Claimant is entitled to the monies under the Note, that it would be inconsistent with the parties’ clear intention for the Claimant to also benefit from the spousal support payments.

[70]Given this admission the key question is whether spousal support payments were explicitly excluded or whether the promissory note was intended to cover those obligations this must be looked at in the context of the pleaded case and evidence.

[71]The promissory note was made in the context of the parties’ separation and impending divorce indicating an attempt to fairly divide their assets and liabilities and deal with financial obligations that may arise from the dissolution of the marriage. Indeed, the Claimant in her evidence in chief deposed that “[i]n essence the promissory note was intended to compensate me for any claims that I may have in relation to the dissolution of our marriage.” After the promissory note went unpaid upon its due date, the Claimant sought relief in the Family Court, attempting to use the promissory note as grounds for spousal support. Although the court rejected that the promissory note could be relied on as part of those proceedings, this, along with the surrounding context suggests that the parties intended that the payment of promissory note as negating need for spousal support. Therefore, I find that spousal support was intended to be part of the marital settlement agreement.

Whether the Claimant has established a claim for breach of contract?

[72]The court has determined that the promissory note was not conditional as claimed by the Defendant. Therefore, it must now be established whether there has been a breach of the note. This matter is straightforward despite the Defendant’s attempts to justify non-payment, the Claimant has not received payment as per the agreement. Additionally, there were no changes or alterations to the payment timeline. Consequently, the Defendant’s failure to make the payment by the expected date constitutes a breach of the promissory note. Whether the Defendant’s payments for spousal support should be set off against the promissory note

[73]Considering the prior determination that spousal support was meant to be included in the promissory note, which was established as part of the marital settlement agreement during the parties’ impending divorce, any court-ordered spousal support payments made by the Defendant should be offset against the agreed amount under the promissory note. As of the date the Defence was filed, the Defendant had paid $247,800.00. However, with monthly payments continuing until as at July 2024, the total amount increased to $445,550.00. This amount should be deducted from the agreed sum of US$275,000.00 owed to the Claimant. I am further convinced that this is the appropriate approach having regard to section 20 of the Eastern Caribbean Supreme Court Act, Cap 143 which mandates that the court bring finality to matters. That section reads as follows: i. “The High Court and the Court of Appeal respectively in the exercise of the jurisdiction vested in them by this Act shall in every cause or matter pending before the Court grant either absolutely or on such terms and conditions as the court think just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim or matter so that, as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of these matters avoided.”

[74]Therefore, in order to prevent double recovery and in the interest of fairness and equity and to bring some finality to this dispute between the parties I find that the sum of $445,550.00 be deducted from monies owed to the Claimant by way of the promissory note. Given that the spousal support order is still in existence and the findings of this court regarding its incorporation into the promissory note, the Defendant should he so wish may make an application to the court to vary or set aside that order.

What is the rate of interest applicable to the promissory note?

[75]The Claimant argues that she is entitled to a 9% commercial interest rate. To determine if this rate should apply to a promissory note between two individuals, especially in the context of a soon-to-be ex-husband and ex-wife entering into a marital settlement agreement, the court must first examine the terms of the promissory note. Notably, the note does not address interest at all. Additionally, there is no evidence that interest, whether at the commercial rate or otherwise, was discussed or considered by the parties when the note was executed. Furthermore, the nature of the marital settlement agreement within the promissory note suggests it is more of a personal agreement rather than a commercial one, where a commercial rate would be appropriate. Lastly, the Claimant has not provided any legal precedent or statutory authority to support the application of a commercial interest rate in this context. In the absence of compelling evidence or legal authority, and in the interest of fairness and equity, I believe the statutory interest rate pursuant to the Judgments Act, Cap 227 should be applied.

Order

[76]In light of the foregoing, judgment is hereby ordered as follows: 1. That judgment is entered for the Claimant for breach of contract. The Claimant is awarded damages for breach of contract in the sum of USD$275,000.00 less the sum of $445,550.00 paid by the Defendant for spousal support. 2. In the event that the Defendant has continued the spousal support payments after July 2024 those payments shall also be set off against the adjudged sum. 3. The Claimant shall upon payment of the judgment sum transfer her interest in the two properties jointly owned by the parties being the matrimonial home and the property located at Sir George Walter Highway. 4. The Defendant shall pay the Claimant prescribed costs pursuant to CPR 65.12 5. The Claimant is entitled to the statutory rate of Interest of 5% per annum until the judgment debt is fully paid.

Justice Jan Drysdale

High Court Judge

By the Court

Registrar

THE EASTERN CARIBBEAN SUPREME COURT ANTIGUA AND BARBUDA IN THE HIGH COURT OF JUSTICE CASE NO. ANUHCV2020/0409 BETWEEN: SANDRA BRIGGS Claimant -and- KEVIN BRANKER Defendant Appearances: Mr. Kendrickson Kentish for the Claimant Ms. E. Ann Henry KC for the Defendant ————————————————————— 2024: July 10 th October 10 th ————————————————————— Judgment

[1]DRYSDALE, J.: This is a claim for recovery of a debt made by promissory note payable to the Claimant in the amount of ECD$743,201.25/ USD$275,000.00. Background

[2]The Claimant’s claim is for monies which are due under a promissory note to which the Defendant agreed as part of the matrimonial settlement pursuant to their divorce. The sum claimed is USD$275,000.00 together with interest pursuant to section 57(a)(ii) of the Bills of Exchange Act.

[3]The Defendant says that the payment to which the Claimant claims to be entitled was conditional upon the happening of an event which did not occur. He also asserts that the payment was part of a larger matrimonial settlement agreement pursuant to which he would be entitled to exclusive title to certain real estate which is jointly owned by the Parties.

[4]The proceedings also include a counterclaim by the Defendant for declarations which flow from matters set out in his Defence. The Pleadings The Claim

[6]The Claimant’s case is that on the 13 th June 2016 prior to their divorce the Parties entered into a promissory note by which the Defendant agreed as part of the matrimonial settlement to pay the Claimant the sum of USD$275,000.00 on or before 31 st May 2019 to compensate the Claimant for any claims she may have in relation to the dissolution of their marriage. The terms of the matrimonial settlement were that the Claimant would be compensated for her interest in the matrimonial property located in Hodges Bay and for her interest in the Business Design Centre, located on Old Parham Road and any jointly held property.

[7]The Claimant sought to resolve the matter of payment of the note simultaneously with an application for an order of support/ancillary relief filed on the 7 th February 2020. On 7 th August 2020 Kelsick J at paragraph 44 of his judgment on the said application adjudged that he did not feel able to make a lump sum order to replace the obligation of the Defendant under the promissory note, secondly that the note created legal obligations which would have to be addressed separately; thirdly that if the Claimant chose to bring an action under the note, the decision, whether she was successful or not, would necessarily impact any lump sum order; and finally ordered no lump sum payment at that stage.

[5]The Parties were married on 15 th June 1991 and divorced after 25 years on 13 th July 2016.

[8]Thereafter the Claimant made a demand for immediate payment by letter dated 9 th November 2020 and presented the note for payment to the Defendant at his workplace, Business Design Centre, on or around 10 th November 2020 and at his address of Hodges Bay on or around 13 th November 2020. To date the note has not been paid. a. In addition to the sum claimed the Claimant claims interest pursuant to section 57(a) (ii) of the Bills of Exchange Act at the rate of 9% from the date of demand to the date of judgment. The Defence and Counterclaim

[12]He asks The court to dismiss the claim and make an order for the Claimant to pay his costs. If the court dismisses the Defence that the agreement between the Parties was a conditional contract and grants the relief sought by the Claimant, the Defendant asks that the court grant him the relief as set out in his Counterclaim namely: a. To order the Claimant to transfer to the Defendant, the Claimant’s interest in the former matrimonial home; b. To order the Claimant to transfer to the Defendant the Claimant’s interest in the commercial lands situate at Sir George Walter Highway; c. To order the Claimant to apply for the discharge of the Order for Spousal Support made in Claim No. 115 of 2015; d. An order that the amount of $247,800.00, paid as of the date hereof and all further sums paid hereafter by the Defendant under Claim No.115 of 2015 be set off against any sums due to the Claimant by the Defendant; e. An order that the Claimant do pay the Defendant’s costs; and f. Such further or other relief as to this Honourable Court seems just. Amended Reply to Defence and Re-Amended Defence to Counterclaim

[9]The Defendant asserts that the agreement on which the Claimant has brought these proceedings is not, in law, a promissory note but a contract between the Claimant and the Defendant which was subject to a condition that the Defendant would be bound to perform the contract only if he retrieved the proceeds of another contract made on 23 rd June 2015 between his company, Business Design Centre Consulting Limited, and Carib Boots Limited, EMC Group Limited and TW Antigua Holdings Limited. The Defendant says further that it was an implied term of the contract between himself and the Claimant that in consideration of the payment of monies under the agreement, the Claimant would transfer to the Defendant her interest in the former matrimonial house situated at Hodges Bay and a commercial parcel of land situated at Sir George Walter Highway as well as relinquish her claims for spousal support.

[10]The Defendant says that the 23 rd June 2015 contract failed in December 2017 when Carib Boots Limited by email advised that the contract was cancelled and as such the performance of the contract to pay the Claimant was rendered impossible. The Defendant says that the Claimant was aware of this.

[11]The Defendant also admitted that the Claimant wrote demanding payment of monies by letter dated 9 th November 2020 and that no monies have been paid by him.

[17]There was no condition, express or implied, upon which the agreement between the Claimant and Defendant would be nullified.

[13]The Claimant in reply to the Defence denies the allegation that the contract between the Parties was subject to any condition. She also denies the assertion that she knew that it was impossible for the Defendant to perform the agreement between them.

[14]Her case is that on the night before the Parties separated, i.e. 6 th September 2015, the Defendant offered her USD$300,000.00 in a lump sum and a Porsche motor vehicle.

[15]The Claimant when offered USD$300,000.00 asked where the Defendant would get that sum from to which the Defendant responded to the effect that the Claimant need not worry about this, and that the Defendant was working on a business deal and the Claimant would get the money within weeks.

[16]On or around the day the divorce was granted the Parties, in the presence of their attorneys, met to sign the promissory note in the amount of USD$300,000.00 but the Defendant would not sign and instead offered USD$250,000.00 on account of the fact that he was paying for the Porsche which would be the Claimant’s when paid for.

[18]As for the Counterclaim the Claimant denies that the Defendant is entitled to the relief sought therein. She also says that the spousal support payments made by the Defendant were paid without reference to nor in consideration of the promissory note and that accordingly the Defendant is not entitled to any set off of the same.

[19]She says it would be unjust and inequitable for the court to give full terms to the agreement as asserted by the Defendant for a number of reasons, namely, the promissory note is expressly stated to be “part of the matrimonial settlement”, the Claimant’s conditions, means, needs and other circumstances, the economic disadvantages faced by the Claimant as a result of the marriage and its breakdown, the economic advantages to the Defendant arising out of the marriage and its breakdown and the court’s finding in ANUHMT2015/0115 that an application for variation is open to the Parties.

[20]The Claimant also puts the Defendant to strict proof of his assertion that he paid the sum of $247,800.00 as spousal support as of 20 th January 2020. The Evidence

[26]On 13 th June 2016, prior to The divorce, the Parties entered into a promissory note by which the Defendant agreed as part of the matrimonial settlement to pay the Claimant USD$275,000.000 by 31 st May 2019. The purpose of the promissory note was to compensate her for giving up her interest in Business Design Centre and the matrimonial home. At the time of their separation in or around September 2015 the house was valued at $2,100,000.00. The house had been offered as security to First Caribbean International Bank for the Parties’ business as well.

[21]Three witnesses were presented for trial namely Sandra Briggs, Kevin Branker and Dr. David Dorsett. Sandra Briggs

[28]By letter dated 6 th November 2020 her lawyers made demand for immediate payment on the promissory note. The note was also presented to the Defendant at Business Design Centre in or around 19 th November 2020 and at his address at Hodges Bay on or around 13 th November 2020. To date the note has not been paid.

[22]Ms. Briggs is the Claimant in this matter and the former wife of the Defendant. Her witness statement was filed on 18 th July 2023.

[30]Finally, the Claimant asserts that she is entitled to payment on the note and interest at the prevailing commercial rate of 9% from the date of demand to the date of judgment.

[24]They built a house in Hodges Bay which was their matrimonial home. The Claimant says that in the early part of the marriage she earned a good salary and contributed substantially to the mortgage.

[25]The Defendant eventually retired from his job with LIAT, and the Parties invested in creating Business Design Centre. They also invested ECD$1,000,000.00 in British American Insurance Company from their joint account at First Caribbean International Bank (FCIB).

[27]The Defendant was to continue to pay the Claimant maintenance as she was not employed when she left Business Design Centre and would need assistance. In essence the promissory note was intended to compensate the Claimant for any claims she may have in relation to the dissolution of the marriage. The promissory note was not conditional on the success of any contractual prospects which the Defendant had with third parties.

[29]As for the Porsche car the Claimant says that the Defendant gave her the vehicle prior to the divorce. She says the Defendant indicated that the vehicle was fully paid for and that it has never been part of the promissory note agreement between them.

[31]On cross examination the Claimant stated that in September 2015 the Defendant had a discussion with her about a divorce. He suggested that in less than 3 months he would pay her the sum of USD$300,000.00 on the condition that she relinquished her interest in the matrimonial house and the business. She agreed as this sum would allow her to return to England and start over. The witness denied that they had a detailed conversation about how the Defendant would obtain the funds to pay her as agreed and stated that he said that he was working on something.

[32]Notwithstanding their agreement, after three months no monies had been paid. Thereafter the parties with their attorneys in June 2016 negotiated a matrimonial settlement in which the Defendant agreed to pay her the sum of USD$275,000.00 on or before 31 st May 2019.

[33]The witness agreed that she would relinquish all their joint assets which included the business, the matrimonial house and the commercial property once she had been paid pursuant to the promissory note.

[34]The witness was then questioned about her 2020 application for spousal support. She stated that her rationale was because she did not receive the USD$275,000.00 and because she needed financial support. Later the witness unhesitatingly agreed that had she received the $275,000.00 she would not only have relinquished her interest in the immovable property but would not have approached the court for spousal support. Kevin Branker

[42]On the day before the petition for divorce was to be heard a meeting to conclude the negotiations for their matrimonial settlement was convened at the offices of the Claimant’s attorneys, Mr. Craig Christopher and Ms. Jan Griffith. The meeting was held on 13 th July 2016. During the discussions the Defendant explained to the Claimant’s attorneys that he was involved in a business venture and would be able to make a money settlement if it was successful. He made it clear during the meeting that he would not be paying USD$300,000.00 as he had earlier discussed with the Claimant that he had to pay penalty fees to the Inland Revenue due to her failure to pay ABST and other taxes during the period that she worked in his business. After some discussion the amount was reduced to USD$275,000.00.

[35]Mr. Branker is the Defendant. He filed his witness statement on 30 th June 2023.

[44]the Defendant left the meeting without any copies of the document as the intent was for them to be amended and forwarded to Dr. Dorsett to be signed and returned.

[37]The Defendant was working on a CIP business deal with Tradewinds Hotel (Carib Boots) at the time which once concluded would be able to generate significant payment to him. He told the Claimant that he would pay her from the proceeds of the business deal if it was successful. Their initial discussion on the matter was that the Defendant would pay the Claimant USD$300,000.00 as he expected to make more than this sum from the deal.

[38]Shortly after the discussion on 5 th September 2015 the Claimant moved out of the matrimonial home. Thereafter the parties engaged attorneys to represent them, and the Claimant filed a petition for divorce. The parties’ attorneys were having settlement talks in July 2016 which culminated in a meeting held on 13 th July 2016.

[39]In the months leading up to July 2016 the Defendant says that he was going through extreme financial hardship. He missed several mortgage payments and FCIB started proceedings to auction the parties’ home and other property. At no point did the Claimant, who was a co-borrower, offer to assist with the mortgage payments.

[40]In 2016 the Inland Revenue Department conducted an audit on Business Design Centre for the period 2012 to 2014 during which the Claimant had responsibility for paying ABST and business taxes. To his surprise the Defendant was charged with a penalty by the Inland Revenue as the Claimant had not paid over the proper amounts in ABST and taxes.

[41]The Defendant says that he was forced to make arrangements with FCIB to avoid the properties being auctioned, the matter was moved to the bank’s collections department and the loans were all consolidated or refinanced. The mortgages were all originally in the names of both parties as the Defendant’s income was not sufficient to service the loans.

[43]Towards the end of the meeting the Claimant’s attorneys produced a promissory note and asked both the Defendant and his attorney to sign. The Defendant indicated that he wanted the document to state that he would only be required to pay if the business transaction with Carib Boots was successful, he says that everyone present at the meeting assured him that the amendment to include reference to the business venture would be included and based on that understanding he and Dr. Dorsett signed the document.

[45]To the Defendant’s surprise a few years later on 4 th June 2019 attorney-at-law Leslie-Ann Brissett sent him a letter demanding payment for the alleged promissory note to which Dr. Dorsett responded by letter dated 11 th June 2019.

[46]The Defendant says that he was surprised that the Claimant brought a claim for spousal support as she was aware of his financial circumstances. He says he was also surprised that the Claimant in those proceedings for spousal support brought in or about February 2020 mentioned the document which was signed on the 13 th July 2016 because by that time the Claimant knew that the business transaction involving Carib Boots failed and as such the Defendant was not obliged to pay her the funds.

[47]The Defendant asserts that he has continued to pay all the loans which are secured by the former matrimonial home and the land on Sir George Walters Highway without any contribution from the Claimant. He also continues to pay spousal support in the amount of $4,750.00 per month to the Claimant pursuant to an order made in Suit No.115 of 2015. This order was made in July 2020.

[48]The Defendant says that he should not have to pay the Claimant the amount of USD$275,000.00. If it is decided that he must pay the sum claimed the Defendant asks that the Claimant be ordered to sign over the former matrimonial home and the lands at Sir George Walter Highway and that he be given full credit for the spousal support which he has been paying to the Claimant which at the time of filing his witness statement amounted to $385,550.00.

[49]On cross examination the witness admitted that he never instructed his then attorney to write inquiring about the amendment neither did he ever request that the Claimant write her attorneys about it.

[50]He agreed that there are no documents indicating an agreement to amend the promissory note.

[51]He insisted that the settlement was on the basis that the Claimant relinquish her interest in the matrimonial home and land but denied that the agreement also included the business as he asserted that the Claimant was not part of the business.

[52]He also stated that the payment was not an obligation but was out of the generosity of his heart. Dr. David Dorsett

[61]The issues to be resolved are as follows: a. Whether written promissory note is the extent of the agreement and what are the terms of the agreement b. Whether the Claimant has established a claim for breach of contract c. If yes whether the Defendant’s payments for spousal support should be set off against any amounts owed d. What is the rate of interest applicable to the agreement ANALYSIS Whether the written promissory note is the extent of the agreement and what are the terms of the agreement

[53]Dr. Dorsett is an attorney-at-law. He represented the Defendant in his divorce proceedings against the Claimant. He prepared a witness statement which was filed on 30 th June 2023.

[63]The only other term of the agreement was a term that referred to default of payment and the consequences thereof being that payment in full would immediately become available. As an aside I note. that no provision had been made for the payment by installments or in any other manner than in full on the agreed date so This provision appears to be otiose. The agreement was executed before counsel for the parties.

[55]The offer made by and on behalf of the Defendant was accepted by the Claimant at the meeting.

[56]It was agreed at the meeting that an amendment would be made to the document which specifically reflected that the payment would be conditional on the success of the CIP transaction. It now appears that this amendment was not actually done.

[57]Sometime later, the Defendant asked Dr. Dorsett to respond on his behalf to a letter dated 4 th June 2019 from attorney-at-law Leslie-Ann Brissett on the matter of the payment of USD$275,000.00. By letter dated 11 th June 2019 Dr. Dorsett wrote to Ms. Brissett informing her that the business deal underlying the promise to pay USD$275,000.00 had not materialized. Dr. Dorsett says that he does not recall receiving a response to his letter.

[58]Dr. Dorsett also says that he is aware that at a subsequent court hearing the Claimant testified in open court that such an agreement (i.e., the agreement to pay USD$275,000.00 being dependent on the CIP transaction going through) was not made. He was astonished at her testimony which in no way accords with his knowledge of what happened at the meeting at the office of Mr. Christopher and Ms. Peltier.

[59]On cross examination Dr. Dorsett insisted that the promissory note was signed in good faith but that it was expected that an amendment to that agreement would have been made to reflect that payment was conditional on the successful business transaction with Carib Boots.

[60]He admitted that during the three years between execution of the promissory note and the date for payment he never wrote to inquire about the amendment and suggested that it was of no moment as he had been informed that the business fell through so that negatived the entire agreement. ISSUES

[70]Given this admission the key question is whether spousal support payments were explicitly excluded or whether the promissory note was intended to cover those obligations this must be looked at in the context of the pleaded case and evidence.

[62]The parties executed a promissory note on 13 th July 2016 as part of the marital settlement pursuant to divorce proceedings. It was a term of the agreement that the Defendant would pay the Claimant the sum of USD$275,000.00 in full on or before 31 st May 2019.

[64]During cross examination the Claimant admitted that the promissory note was executed on the condition that she would relinquish her shares in the matrimonial home as well as a parcel of land situated at Sir George Walter Highway. The promissory note, as previously indicated, lacked any such information and did not reference which properties were part of the settlement agreement. Given the Claimant’s admission that both properties were subject to the note, it is clear that the promissory note did not include all the essential terms of the agreement. Therefore, I agree with counsel for the Defendant that the promissory note was partly written and partly oral. This admission opens the door to consideration of parole evidence and the contention by the Defendant that the agreement was conditional on the success of a particular business enterprise and that it was intended to represent payment for spousal support.

[65]The pith and substance of the Defendant’s Defence is that the promissory note was contingent upon a business venture’s success, which involved a third-party and Cabinet approval. The Defendant argues that the venture was expected to generate a significant profit from which he could comfortably pay the Claimant the agreed sum pursuant to the promissory note. The Defendant’s evidence was supported by his then attorney who insisted that the failure of that business automatically brought an end to the promissory note and furthermore there was no need to amend the promissory note as a consequence of this.

[66]However, the Court finds several key issues with this Defence. Firstly, there is a lack of written communication. Over the period of three years the Defendant made no attempt to amend the promissory note, nor did he attempt to communicate that the note had become void due to the failure of the business. The complete lack of documentation raises questions about the legitimacy of this claim.

[67]Moreover, the Defendant could have included the condition in the promissory note at the time of signing. Despite claiming to have signed in good faith, it appears odd that such an important term that would fundamentally affect the payment obligation and enforceability of the promissory note was omitted. This omission suggests that the Defendant’s current argument is an afterthought, rather than a genuine condition of the promissory note at the time of execution.

[68]Given the above in particular but not limited to the lack of written communication, the several and prolonged missed opportunities to include this term in the note, the importance of this term and that the Defendant a savvy businessman was represented by counsel I am inclined to favour the Claimant’s position over the Defendant’s allegations.

[69]The next issue for consideration is whether it was intended that the marital settlement agreement was to take the place of spousal support. The Defendant relies heavily on the Claimant’s admission that had the payment pursuant to the promissory note been made that she would not have sought spousal support. Accordingly, the Defendant argues that if the Court orders that the Claimant is entitled to the monies under the Note, that it would be inconsistent with the parties’ clear intention for the Claimant to also benefit from the spousal support payments.

[71]The promissory note was made in the context of the parties’ separation and impending divorce indicating an attempt to fairly divide their assets and liabilities and deal with financial obligations that may arise from the dissolution of the marriage. Indeed, the Claimant in her evidence in chief deposed that “[i]n essence the promissory note was intended to compensate me for any claims that I may have in relation to the dissolution of our marriage.” After the promissory note went unpaid upon its due date, the Claimant sought relief in the Family Court, attempting to use the promissory note as grounds for spousal support. Although the court rejected that the promissory note could be relied on as part of those proceedings, this, along with the surrounding context suggests that the parties intended that the payment of promissory note as negating need for spousal support. Therefore, I find that spousal support was intended to be part of the marital settlement agreement. Whether the Claimant has established a claim for breach of contract?

[1]Trial Bundle 2 at page 9

[72]The court has determined that the promissory note was not conditional as claimed by the Defendant. Therefore, it must now be established whether there has been a breach of the note. This matter is straightforward despite the Defendant’s attempts to justify non-payment, the Claimant has not received payment as per the agreement. Additionally, there were no changes or alterations to the payment timeline. Consequently, the Defendant’s failure to make the payment by the expected date constitutes a breach of the promissory note. Whether the Defendant’s payments for spousal support should be set off against the promissory note

[73]Considering the prior determination that spousal support was meant to be included in the promissory note, which was established as part of the marital settlement agreement during the parties’ impending divorce, any court-ordered spousal support payments made by the Defendant should be offset against the agreed amount under the promissory note. As of the date the Defence was filed, the Defendant had paid $247,800.00. However, with monthly payments continuing until as at July 2024, the total amount increased to $445,550.00. This amount should be deducted from the agreed sum of US$275,000.00 owed to the Claimant. I am further convinced that this is the appropriate approach having regard to section 20 of the Eastern Caribbean Supreme Court Act, Cap 143 which mandates that the court bring finality to matters. That section reads as follows: i. “The High Court and the Court of Appeal respectively in the exercise of the jurisdiction vested in them by this Act shall in every cause or matter pending before the Court grant either absolutely or on such terms and conditions as the court think just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim or matter so that, as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of these matters avoided.”

[74]Therefore, in order to prevent double recovery and in the interest of fairness and equity and to bring some finality to this dispute between the parties I find that the sum of $445,550.00 be deducted from monies owed to the Claimant by way of the promissory note. Given that the spousal support order is still in existence and the findings of this court regarding its incorporation into the promissory note, the Defendant should he so wish may make an application to the court to vary or set aside that order. What is the rate of interest applicable to the promissory note?

[75]The Claimant argues that she is entitled to a 9% commercial interest rate. To determine if this rate should apply to a promissory note between two individuals, especially in the context of a soon-to-be ex-husband and ex-wife entering into a marital settlement agreement, the court must first examine the terms of the promissory note. Notably, the note does not address interest at all. Additionally, there is no evidence that interest, whether at the commercial rate or otherwise, was discussed or considered by the parties when the note was executed. Furthermore, the nature of the marital settlement agreement within the promissory note suggests it is more of a personal agreement rather than a commercial one, where a commercial rate would be appropriate. Lastly, the Claimant has not provided any legal precedent or statutory authority to support the application of a commercial interest rate in this context. In the absence of compelling evidence or legal authority, and in the interest of fairness and equity, I believe the statutory interest rate pursuant to the Judgments Act, Cap 227 should be applied. Order

[76]In light of the foregoing, judgment is hereby ordered as follows:

[1][23] Her evidence is that she and the Defendant were married on 15 th June 1991 and divorced after 25 years on 13 th July 2016. She says that the Defendant is the business executive of Business Design Centre and a former LIAT Pilot. Business Design Centre was founded by the Claimant and the Defendant.

[2][36] In his statement Mr. Branker says that on 5 th September 2015 he told the Claimant that he wanted a divorce, during the discussion the Claimant made it clear that she wanted a monetary settlement despite being aware of their financial status at the time being that their jointly owned property was fully mortgaged and that there were no hidden accounts. The Defendant says that they were barely able to continue payment to their bankers and other creditors.

[3][54] During his representation of the Defendant Dr. Dorsett was instructed to seek a settlement between the Defendant and the Claimant. Dr. Dorsett’s stated that his instructions were that the Defendant would pay the sum of USD$275,000.00 to the Claimant in settlement of all claims she may have against him relating to the marriage and matrimonial property once a CIP transaction involving the Tradewinds Hotel (Carib Boots) materialized. The Defendant was prepared to show his commitment to make such a payment by way of a promissory note. This arrangement was communicated by the Defendant and Dr. Dorsett to the Claimant at the law office of Mr. Craig Christopher and Ms. Jan Peltier at the Woods Mall, who at that time were the attorneys for the Claimant, in the presence and hearing of Mr. Christopher and Ms. Peltier. This meeting occurred in or about 2016.

1.That judgment is entered for the Claimant for breach of contract. The Claimant is awarded damages for breach of contract in the sum of USD$275,000.00 less the sum of $445,550.00 paid by the Defendant for spousal support.

2.In the event that the Defendant has continued the spousal support payments after July 2024 those payments shall also be set off against the adjudged sum.

3.The Claimant shall upon payment of the judgment sum transfer her interest in the two properties jointly owned by the parties being the matrimonial home and the property located at Sir George Walter Highway.

4.The Defendant shall pay the Claimant prescribed costs pursuant to CPR 65.12

5.The Claimant is entitled to the statutory rate of Interest of 5% per annum until the judgment debt is fully paid. Justice Jan Drysdale High Court Judge By the Court Registrar

[2]Trial Bundle 2 at page 1

[3]Trial Bundle 2 at page 7