Nellie Malic v Hugh Cornell Malic

• Jurisdiction: Belize
• Judge: Chabot, J.
• Judgment Date: 25 October 2023
• Court: Supreme Court (Belize)
• Year: 2023
• Docket Number: ACTION No. 3 of 2021

In the Matter of an Application by Nellie Malic

and

In the Matter of an Application under Section 16 of the Married Women's Property Act, Chapter 176 of the laws of Belize, R.E. 2011

and

In the Matter of Sections 148A of the Supreme Court of Judicature Act, Chapter 91 of the Laws of Belize, R.E. 2011

Between:

Nellie Malic

Applicant/Respondent

and

Hugh Cornell Malic

Respondent/Applicant

ACTION No. 3 of 2021

IN THE HIGH COURT OF BELIZE

Appearances:

Robertha Magnus-Usher, SC for the Applicant/Respondent

Audrey B. Matura for the Respondent/Applicant

RULING ON SUMMONS FOR SPECIFIC DISCLOSURE

Chabot, J.

1 Ms. Malic filed an originating summons on 20 ^th January 2021 seeking declarations as to her rights and interests in certain properties under section 16 of the Married Women's Property Act 1 and section 148A of the Supreme Court of Judicature Act. 2 On 15 ^th July 2022, Mr. Malic filed a notice of application for the specific disclosure of certain documents. Mr. Malic applies for the following orders:

• 1. That the Applicant/Respondent discloses any or all accounts held in the name of the Applicant at any Bank or other financial institution between September 1997 to September 2019 and that the Applicant/Respondent disclose via supporting bank statements or other records the monthly activities of these accounts in respect of the relevant period.

• 2. That the Applicant/Respondent specifically discloses the Atlantic Bank CD account containing three hundred thousand dollars ($300,000.00) held initially jointly and thereafter only in her name on trust for both her and the Respondent/Applicant.

• 3. That the Applicant/Respondent specifically discloses her Holy Redeemer Credit Union bank history, cover of which is shown as NM1–1 in the 3 ^rd Affidavit of Nellie Malic dated 1 ^st July 2021, for Account Number 15395 in the name of Nellie Malic for period 1997 to present.

• 4. That the Applicant/Respondent specifically discloses her Holy Redeemer Credit Union bank history, for share ledger 4342.43 in the name of Nellie Malic for period of 1999 to present, portion of which is only shown as the second page of NM1–1 in the 3 ^rd Affidavit of Nellie Malic dated 1 ^st July 2021.

• 5. That the Applicant/Respondent specifically discloses her loan agreement dated 27 ^th June 2000 for loan she said she obtained from Holy Redeemer Credit Union in the sum of one hundred and fifty thousand ($150,000.00) and discloses along with it any collateral offered up for said loan.

• 6. That the Applicant/Respondent specifically discloses the record of the joint account held between her and the Respondent/Applicant at Scotiabank, as mentioned at paragraph 7 in the 3 ^rd Affidavit of Nellie Malic dated 1 ^st July 2021.

• 7. That the Respondent/Applicant be at liberty to inspect and take copies of all entries in the books of all Banks and Financial Institutions relating to accounts of the Applicant for the period of September 1997 to September 2019.

• 8. That the Applicant/Respondent specifically discloses her loan agreement she purportedly made in November 2016 for the Respondent/Applicant's gifted to him by his father as she claims that loan was made by her at Holy Redeemer Credit Union and for the boat engine as stated at paragraph 97 of the 2 ^nd Affidavit and repeated at paragraph 13 of her 3 ^rd Affidavit.

• 9. That the Applicant/Respondent specifically discloses the rental agreement she has with Mr. Juny Ang Zhao of Belize City, from 2009 to present, along with receipts of rent income she earns from the properties since 2009 to present, for which she signed and collects rent for the Respondent/Applicant's property at 6898 Mahogany Street identified at the Land Registry as Parcel 45-40-917, Registration Section St. Martin de Porres.

• 10. That the Applicant/Respondent discloses receipt of payment received from the sale of the Respondent's gym equipment, which she sold without the Respondent's consent.

2 Ms. Malic opposes the application on the basis that the information requested is irrelevant to the determination of this matter, and that the statutory basis relied upon by Mr. Malic does not apply to an action for division of matrimonial property.

Legal contentions

Mr. Malic's submissions

3 Mr. Malic's application was originally grounded in section 14 of the Evidence Act, 3 rules 58 and 59 of the Supreme Court Matrimonial Causes Rules (the “ Matrimonial Causes Rules”), and the common law duty to disclose. In oral submissions, Mr. Malic's counsel conceded that rules 58 and 59 of the Matrimonial Causes Rules do not apply, and asked that rule 35(4) of the Matrimonial Causes Rules be substituted instead. Counsel for Ms. Malic objected to this ground being added without notice. The objection was upheld, and as such the parties were not permitted to make submissions under section 35(4) of the Matrimonial Causes Rules. In written submissions, Mr. Malic also relied on Part 28 of the Supreme Court ( Civil Procedure) Rules (“CPR”). According to Mr. Malic, because specific disclosure is not addressed in the old rules governing matrimonial causes, the CPR can be relied upon to fill the gaps. Under CPR 28.4, a party must disclose all documents which are directly relevant to the matters in question in the proceedings. “Directly relevant” is defined in CPR 28.1(4) as including documents which a party has control of and intends to rely on.

4 Mr. Malic alleges that the documents he seeks are directly relevant because Ms. Malic relies on them in her pleadings. Mr. Malic alleges that Ms. Malic made various bald assertions in her affidavits in support of the originating summons. These assertions can be proven or disproven if Ms. Malic presents the relevant documentary evidence in support. The affidavits also contain partial disclosure of documents which do not provide the full picture of what she claims. Because Ms. Malic relies on those

documents, full disclosure is necessary to determine the issues regarding the division of property. The documents requested should have been disclosed as part of the standard disclosure because Ms. Malic mentions them and relies on them to prove her case. It would be prudent for the court to conclude that Ms. Malic has not conducted a reasonable search for these documents

5 In response to Ms. Malic's contention that the documents are not relevant because this is not an application for maintenance and she does not have to prove her means, Mr. Malic notes that Ms. Malic's originating summons for the division of matrimonial property is made pursuant to section 148A of the Supreme Court of Judicature Act. Subsection 148A(5) requires that the court look into Ms. Malic's own financial means to determine each party's rights and interests with respect to the properties.

6 Mr. Malic submits that the court must look at the pleadings to determine what must be disclosed. The test applicable to an application for specific disclosure is laid out in Glenn and another v Watson and others; Kea Investments Ltd v Novatrust Ltd and another; Novatrust Ltd v Kea Investments Ltd and another: 4

2. The principles are not in dispute. By CPR r 31.12 the Court may make an order for specific disclosure. Before making such an order the Court will need to satisfy itself that the documents are or have been in the parties' control and that the documents are relevant to the issues pleaded in the proceedings, or at least that there is a prima facie case that these requirements will be met: see White Book at note 31.12.2. Relevance is judged by reference to the pleadings. If these requirements are satisfied the Court has a discretion whether to order disclosure, and will exercise such discretion by taking account of all the circumstances of the case and in particular of the overriding objective [emphasis added].

7 In this case, Ms. Malic is pleading that she assisted by making a loan to purchase one of the properties, and another loan to buy a boat engine. She also pleads that she was a joint holder of a bank account with Mr. Malic and that she controlled the finances, but does not disclose the bank records nor accounts to prove so. She also pleads that she is collecting rent on one of the properties she is claiming. While she exhibits an old rental agreement and old receipts, she failed to exhibit the current rental agreement and recent receipts.

8 Finally, Mr. Malic argues that the common law duty to disclose is continuous until the end of the proceedings. The court can exercise its inherent jurisdiction and grant an application for specific disclosure without the need to rely on any statutory provisions.

Ms. Malic's submissions

9 As noted above, Mr. Malic conceded that rules 58 and 59 of the Matrimonial Causes Rules do not apply to this application. Ms. Malic's submissions on this point will therefore not be summarized and considered.

10 Ms. Malic argues that section 14 of the Evidence Act does not apply to this application as it refers to “banker's books”. Section 2 of the Evidence Act defines banker's books as including “any ledger, day book, cash book, account book and any other book used in the ordinary business of a bank”. Banker's books are kept by the bank, and must therefore be obtained from the bank, not by specific disclosure against the wife.

11 According to Ms. Malic, the test applicable to a request for specific disclosure is the one laid out by the learned authors of Commonwealth Caribbean Civil Procedure:

In deciding whether to order specific disclosure, the court must consider whether such disclosure is necessary in order to dispose of the claim fairly or to save costs, having regard to the likely benefits and costs of the disclosure, and whether the party against whom the order is proposed to be made has the financial resources to comply. If the answer to the latter question is in the negative, the court may make the order in terms that the Claimant pays the...