Jersey Unreported Judgments

Desastre - reasons relating to granting of en desastre declaration.

[2011]JRC222

Royal Court

(Samedi)

18 November 2011

IN THE MATTER OF THE AMY TUTELLES

AND IN THE MATTER OF AN APPLICATION BY THE CHILDREN FOR A DECLARATION OF DÉSASTRE OF THE PROPERTY OF MRS ANGELA CLAUDETTE AMY.

Advocate C. M. Fogarty for the Applicants.

Mrs A. C. Amy appeared in person.

judgment

the bailiff:

1.        On 11th November, 2011, the Court heard an application by Anastasia Amy ("Anastasia"), Marianna Amy ("Marianna") and Philip Amy ("Philip") (and together "the children") that the property of their mother, Mrs Angela Claudette Amy ("Mrs Amy") be declared en désastre.  At the conclusion of the hearing the Court granted the declaration and we now give our reasons. 

2.        There is a sad and complex history to this matter.  Details are to be found in the judgements of the Royal Court [2011] JRC 044A and the Court of Appeal [2011] JCA 144 in earlier proceedings between one or more of the children and their mother. 

3.        For the purposes of this application it is not necessary to go into any detail but the full background can be seen from those judgments.  In briefest outline, following the death of their father, tutelles were formed in respect of certain immoveable property left to each of the children.  Mrs Amy was appointed as tutrice. 

4.        Disputes arose as to whether Mrs Amy had accounted to the children for all that they were due under the tutelles.  On 1st April, 2010, this Court (Commissioner Bailhache presiding) made a number of orders.  By then Anastasia and Marianna were of age but the Court removed Mrs Amy as tutrice of Philip's tutelle and ordered that an accountant's report should be prepared concerning the tutelles.  The firm of Grant Thornton were instructed and they reported in July 2010.  Their report suggested that substantial sums were due from Mrs Amy as tutrice to each of the three children, including in particular a sum of £86,135 being owed to each of them.  In due course both Anastasia and Marianna issued orders of justice seeking various sums from Mrs Amy.  Subsequently each of them issued a summons seeking summary judgment for part of these claims, namely the sum of £86,135.  It was these applications for summary judgment which came before the Royal Court and which led to the judgment referred to at paragraph 2 above. 

5.        The Royal Court gave summary judgment for 75% of the sum that was claimed by each child with leave to defend being given as to the remaining 25% conditional on payment of the balance into Court.  On appeal, this was varied and on 27th July, 2011, the Court of Appeal gave summary judgment against Mrs Amy for 25% of the sum of £86,134, namely £21,533.50 in respect of each of Anastasia and Marianna and granted leave to defend the balance of £64,600.50 for each child conditionally upon payment of the balance into Court within 21 days.  That has not happened and therefore at present Anastasia and Marianna would each be entitled to apply for judgment for the balance of £64,600.50.  The amounts due under the judgment of the Court of Appeal have not been paid by Mrs Amy. 

6.        Philip launched similar proceedings by way of Order of Justice in February 2011 but no application for summary judgment has been made.  Nevertheless the basis of his claim is identical and it is reasonable for the Court to assume that summary judgment for a similar sum would be given in his case. 

7.        As well as the sum of £86,134 claimed by each child, Marianna's order of justice claims an additional £248,366, Anastasia claims an additional £209,746 and Philip claims an additional £111,550. 

8.        According to the affidavit filed in support of the application, Mrs Amy has only nominal moveable property and four items of immoveable property as follows:-

(i)        Joint ownership with her partner Charles Barnett of Sous le Mont, St Helier which was valued in July 2010 at £355,000. 

(ii)       Joint ownership with Mr Barnett of Glengarif, St Peter valued in July 2010 at £575,500. 

(iii)      Life enjoyment of the main house as Hastingue Farm, St Ouen.  No valuation of this has been produced. 

(iv)      A possible claim to dower of Field 268, St Ouen; no valuation of this has been produced. 

9.        Mrs Amy and Mr Barnett have considerable borrowings in relation to Sous le Mont and Glengarif.  According to a certificate from Jersey Home Loans, the amount outstanding as at 31st December, 2009, was just under £664,000.  Mrs Amy did not suggest that there had been any improvement since then.  In addition, they have during 2010 taken out two personal loans with Acorn Finance totalling £50,000.  Thus the total borrowings come to just under £714,000 (we shall use the rounded up figure for convenience). 

10.      It is clear that Mrs Amy is insolvent in that she cannot pay her debts as they fall due.  The judgments of the Court of Appeal remain unsatisfied and she has no liquid assets with which to settle them.  It is also clear that she has assets which could be realised for the benefit of her creditors.  It follows that the conditions for granting a declaration of désastre are satisfied. 

11.      Mrs Amy argued that we should not grant a declaration for the following reasons:-

(i)        She denied that she owed any money to the children.  She says that the Court of Appeal was wrong to grant judgment against her and it was the fault of her lawyers for not putting forward various arguments and points which could have been put forward.  However, as the Court explained to her during the hearing, it is not open to the Royal Court to go behind a decision of the Court of Appeal.  The fact is that, as a matter of law, she owes the sums for which judgment has been given and these sums should have been paid. 

(ii)       She says that she has valid claims against a number of lawyers who have advised her badly in relation to this whole matter.  She wishes to obtain legal aid to pursue them but is having difficulty in obtaining legal aid.  This may be contributed to by the fact that she and Mr Barnett have indicated in correspondence that they value her life interest in Hastingue Farm at several million pounds.  However, we do not consider these possible claims to be a reason not to grant a désastre.  If she does have valid claims against one or more lawyers, there is no reason why, following a désastre, the Viscount should not pursue such claims as an asset of her estate. 

(iii)      She says that the consequence of a désastre will be that she will have to leave Hastingue Farm where she has lived for some 31 years.  She says that this would be very unfair.  Whether this will in fact be the result of a désastre depends on the value of her other assets as compared with her liabilities, because we are confident that the Viscount would only seek to realise her life interest in the farm as a last resort.  As to the value of the other assets there is some uncertainty.  Those representing her wrote in January 2011 suggesting an equity of some £200,000 of which half i.e. £100,000 would represent her share.  This would appear to be broadly consistent with the information available to the Court.  The certificates from Jersey Home Loans Limited indicate a total amount outstanding by Mrs Amy and Mr Barnett as at 31st December, 2009, of just under £664,000.  To that must be added two personal loans totalling £50,000 taken out in 2010.  These amounts are consistent with a statement of assets exhibited as exhibit AA10 to Mrs Amy's affidavit of 28th March, 2011, save that there appears to be a typographical error in that document, in that the figure of £230,053.85 in the statement of assets ought to be £320,053.85.  These figures suggest a joint equity before selling costs of some £216,000 (£930,000 less £714,000).  Mrs Amy's half share before selling costs would be £108,000.  However, in a letter dated 17th October, 2011, Mr Barnett suggested that Mrs Amy's share of the equity in the two properties is only some £40,000.  We have no further information as to the basis of this figure.  But whatever the figure may be and even if, following the sale of Mrs Amy's share in Sous le Mont and Glengarif it becomes necessary for Mrs Amy's life interest in Hastingue Farm to be realised, this is no reason not to grant a declaration.  The amounts owed by Mrs Amy are due and her creditors are entitled to realisation of her assets in order to satisfy her debts. 

(iv)      Finally, she argued that she had been prevented from realising her interest in Sous le Mont and Glengarif because Marianna has lodged a caveat preventing sale of those properties.  However, a caveat does not prevent the owner of property from marketing the property and agreeing to sell it; it simply requires that the Court be asked to lift the caveat at that time with arrangements then being made for appropriate protection of the sale proceeds.  Furthermore, Mrs Amy has not lodged any undertaking as envisaged by the Court of Appeal in order to lift the caveat nor is there any evidence that she and Mr Barnett have made any efforts to realise the properties. 

12.      In all the circumstances the Court concluded that a declaration of désastre should be granted. 

Authorities

In the matter of the Amy Tutelles [2011] JRC 044A.

In the matter of the Amy Tutelles [2011] JCA 144.