Diane Lori Tabony v August Henry Tabony

• Jurisdiction: Belize
• Judge: Alexander, J.
• Judgment Date: 28 May 2024
• Docket Number: ACTION NO. 260 of 2019
• Court: Supreme Court (Belize)

In the Matter of Section 152 of the Supreme Court of Judicature Act, Cap. 91 of the Laws of Belize, R.E. 2011

and

In the Matter of Matrimonial Causes Rules 65 for an Application for Permanent Alimony

Between:

[1] Diane Lori Tabony

Petitioner

and

[1] August Henry Tabony

Respondent

ACTION NO. 260 of 2019

IN THE HIGH COURT OF BELIZE AD 2019

Consolidation — Principles Governing Consolidation — Consent by Counsel — Authority of Counsel to Consent — Limitation of Counsel's Authority — Withdrawal of Consent — Jurisdiction — Order 53 of the Rules of the Supreme Court.

Appearances:

Mr. Fred Lumor SC with Ms. Sheena Pitts for the Petitioner/Applicant

Ms. Stacey Castillo led by Mr. Marshalleck SC for the Respondent

DECISION

Alexander, J.

1 This is an application for consolidation of Action No. 6 of 2018 and Action No. 260 of 2019 both pending in the High Court. The applicant filed two summonses dated 16 ^th January 2024 (together “the summons”) one in each action for an order that these actions be consolidated and proceed as one action.

2 These matters have had a protracted presence in the court system, with parties strenuously litigating every aspect of their case. The present application (“the consolidation”) is just another application made and contested by parties and requiring the intervention of the court.

3 I heard oral submissions from Mr. Fred Lumor and Ms. Stacey Castillo on 24 ^th April 2024. I now dismiss the application for consolidation.

Background

4 I find it necessary to give a short history of what led up to the summons being filed and to give some context to the refusal of the consolidation order. There matters were commenced in 2018 and 2019, long before the summons for consolidation was filed in January 2024.

5 The summons came after a hearing before me on 14 ^th June 2023 (“the hearing”). At that hearing, Mr. Lumor remarked that the matters ought to be consolidated, and counsel for the respondent, Mr. Andrew Marshalleck, “agreed” orally in court that consolidation was a way forward. Upon that indication, I made an order on the same 14 ^th June 2023 (“the draft court order”) to wit that:

The Petitioner shall provide a draft consent order for the consolidation of the claim herein with Action No. 6 of 2018 Tabony v Tabony for the Respondent's approval.

6 Consequent to the draft court order above, parties were to settle and submit two draft orders for my approval: (i) the draft court order above and (ii) the draft consent consolidation order. Mr. Marshalleck approved the draft court order above, which was then submitted for my approval, but he did not approve the latter draft consent consolidation order sent along with the draft court order. In the affidavit in support of the summons, the affiant, Ms. Attolene Crawford Lennan, stated that Mr. Marshalleck had indicated instead that approval for the draft consent consolidation order would “follow in due course”. The draft consent consolidation order was never approved by the respondent's counsel. It appears that, after the hearing, the respondent gave instructions to his counsel not to consolidate the two actions. The opposition to the present application takes heel against this backdrop.

The Actions

7 Action No. 6 of 2018 (“Action No. 6”) was commenced on 7 ^th December 2018, where the petitioner claimed ancillary relief for distribution of matrimonial assets that she had acquired with the respondent during the subsistence of their marriage.

8 On 13 ^th August 2019, the petitioner petitioned the court for another ancillary relief. She filed Action No. 260 of 2019 (“the Alimony action”) seeking the relief of permanent alimony.

9 In answer first to Action No. 6, the respondent stated that there exists a valid prenuptial agreement (“the agreement”) executed between the parties which is still operative. The agreement governs the matrimonial assets that were acquired by the petitioner during the subsistence of the marriage. In the agreement, the parties had expressly renounced the community of property, so each party holds separate properties independent of each other. The respondent also stated in his defence that, in any event, the majority of properties in which the petitioner seeks a beneficial interest are, “… owned by third party companies whose shares are owned by trustee of Tabony Family Trust which was created 10 ^th May, 2007.”

10 In answer to the Alimony action, the respondent stated that the petitioner did not own, contribute, or have any interest or rights in his properties and investments, which he had held prior to marriage, whether financial or non-financial. He stated in an affidavit sworn on 1 ^st October 2019, that the petitioner has no interest “… in the businesses and investments that I solely engaged in. Diana (sic) also does not have any interest or shares in properties in Belize or rental income from them or proceeds of sale. This is by virtue of the prenuptial agreements (sic).” He also alleged that “… the listed assets have either been settled in the Trust or third-party companies.” According to the respondent, these properties were held separately by him or by companies he held shares in, so he alone was entitled to the wealth generated by them including Tabony Gift Stores. He alone was entitled to the profits and rental income from all properties under Tabony Industries Limited. The agreement assures that the parties hold their properties and investments separate from each other. He was relying on the agreement to defend both claims, Action No. 6 and the Alimony action.

11 The agreement has been the subject of at least two decisions of this court and is currently the subject of an appeal. Whilst the respondent insists on and maintains that it is valid and subsisting, the petitioner asserts that it does not govern the distribution of matrimonial assets in Belize. Further, she states that the Tabony Trust cannot hold title to the properties that she acquired with the respondent during the subsistence of the marriage. Therein lies the conundrum that has kept the parties before the court for over five years. The respondent also remains in non-compliance with an order of the court made on 28 ^th January 2020 to file an application on or before 7 ^th February 2020 to determine whether the properties, held by third party companies in this case, constitute matrimonial properties.

Issues

12 The broad issue, as the court finds it, is whether the test for consolidation is satisfied such that the two actions should be consolidated? As an off shoot to that question is whether counsel can consent to an order and then subsequently withdraw his consent?

The Law

13 Order 53 of The Rules of the Supreme Court (“the Old Rules”) governs the present applications. The Order states:

1. Causes or matters pending in the Court may be consolidated by order of the Court in the manner in use in the Supreme Court of Judicature (England) before the commencement of the Supreme Court of Judicature Act, 1873 (“Imperial”). 1

14 The English equivalent of Order 53 is Order 49, Rule 8, which provides that “Causes or matters pending in the same division may be consolidated by order of the Court or a judge in the manner in use before the commencement of the principal Act in the superior courts of common law.”

Submissions

15 During oral submissions on 24 ^th April 2024, both parties stuck fiercely to their respective positions on the appropriateness or not of a consolidation order. Mr. Lumor stated that the respondent's counsel had the ostensible authority to and did agree to entering the draft consent consolidation order. There was no limitation on Mr. Marshalleck's ostensible authority when he consented to the consolidation. The respondent could not subsequently withdraw the consent of his counsel, without permission from the court. He relies on the English Court of Appeal case of Neale v Lady Gordon Lennox 2 and Neale v Gordon Lennox, 3 reversing the Court of Appeal decision (discussed below). In oral submissions, Mr. Lumor argued that consolidating the actions is appropriate as they involve substantially the same issues of law and fact, the same parties and the same witnesses.

16 Ms. Castillo, the junior counsel in the matter, argued the consolidation application for the respondent. She submitted that the present case was not an appropriate one for consolidation. First, the two actions do not raise common questions of law, as the court must consider different factors when ruling on division of matrimonial property as against permanent alimony and, moreover, these factors do not overlap. Secondly, the validity of the agreement is under appeal and a case management of the appeal has not been fixed

by the Court of Appeal. Thirdly, the petitioner in Action No. 6 has filed a summons for the joinder of 37 third-party entities to Action No. 6, where the orders sought against these entities are completely unrelated to the reliefs in the Alimony action. Fourthly, Ms. Castillo took a procedural swipe at the summons to consolidate, arguing that there was an irregularity in that only one summons was filed to join two separate actions. She stated that this is a procedural abnormality that ought not to go unnoticed. It is not open to a party to seek to engage the court's jurisdiction in two separate actions by way of a single summons without a prior consolidating order. Separate summonses were required to be filed. Since the proper procedure was not followed, the court does not have the jurisdiction to make any order for consolidation. The application should be dismissed with costs to the respondent. She relies on Daws v Daily Sketch & Sunday Graphic, Ltd et al and Darke et al v Same. 4

17 Mr. Lumor responded, and I agree, that Daws is distinguishable on the procedural irregularity argument. In the present matter, the petitioner had filed two summonses, one in Action No. 6 and the other in...