Son gets leave to file defence in house dispute with father and other family members

The Supreme Court has granted extension of time for Headley Allen Jnr to file a defence in a claim brought against him by his father and three other family members over the ownership of a property in Old Harbour, St Catherine.

Claimants Headley Allen Snr, his mother Doretha Authiloney Allen, his sister Pauline Louise Allen and his aunt Lastry Durant are contending that the defendant fraudulently transferred their property in his name.

The defendant has denied the claim.
The claim form and particulars of claim were served on the defendant on May 16, 2023.

He filed acknowledgement of service on May 29, 2023 but did not file a defence within the prescribed time.

He said ill health prevented him from filing a defence.

On August 29, 2023, the claimants applied for default judgment to be entered against the defendant.

The defendant, who is represented by attorney-at-law Neco Pagon, instructed by King's Counsel Peter Champagnie, filed an application on October 29, 2023 for extension of time in which to file his defence.

The defendant's reason for the delay was acute sickness and was supported by a medical report.

Master in Chambers Christine McNeil, who heard the applications, said in her decision on July 31 that there was no objection or challenge to the medical report, other than an argument by the claimants that it was not detailed enough.

Pagon submitted that the defendant had a good and arguable case with a reasonable prospect of success.

He said illness was the cause for the delay in filing the defence, the delay was not inordinate and an extension of time would not occasion any prejudice to the claimants.

Attorney-at-law Ruel Woolcock, instructed by Ruel Woolcock & Co, argued on behalf of the claimants that the defendant's delay in filing the defence could not be justified.

He submitted that the illness referred to by the defendant was in essence vague.

Submissions were made that the defendant did not have an arguable case and the mere denial of fraud could not support his case since he was the transferee in the fraudulent transfer of property.

McNeil ruled that the evidence from the defendant was that he had always intended to defend the claim.

“The history of the dealings between the defendant and his father, the 1st claimant, includes previous judicial proceedings which touched and concerned the property which is the subject of the current dispute.

In those proceedings, the defendant mounted vigorous contests.

The upshot of this is that the court finds that the defendant's decision to defend the claim was not merely an afterthought but was a settled one from the time of service of the claim upon him.

The failure to do so in the prescribed time was due to his health condition,” the Master ruled.

The defendant has denied any form of fraud.

He said in his affidavit in October 2023 that the signatures were genuine and the transfer was legitimate.

He further stated that consideration was by way of gift in exchange for him clearing and having discharged the then existing mortgage on the subject property.

He exhibited documents in his affidavit in proof of his assertion.

The application by the claimants for default judgment was refused and the defendant was granted an extension of time to file his defence.

McNeil ruled that the defendant had met the criteria in law for the extension of time.

- Barbara Gayle

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