Katherine Kay Lupke v Hans Richard Lupke

• Jurisdiction: Grenada
• Judge: Actie, J.
• Judgment Date: 18 August 2022
• Judgment citation (vLex): [2022] ECSC J0818-1
• Docket Number: SUIT NO. GDAHMT2016/0041
• Court: Supreme Court (Grenada)

Between:

Katherine Kay Lupke

Petitioner

and

Hans Richard Lupke

Respondent

SUIT NO. GDAHMT2016/0041

IN THE SUPREME COURT OF GRENADA

AND THE WEST INDIES ASSOCIATED STATES

HIGH COURT OF JUSTICE

(DIVORCE)

Appearances:

Ms. Marion Suite for the Petitioner

Mr. Nazim Burke for the Respondent

RULING

Actie, J.

1 The parties marriage solemnized on 29 ^th June 1985, was dissolved by a decree absolute on 10 ^th August 2016. On 18 ^th December 2016, the petitioner filed ancillary relief proceedings and the parties arrived at an amicable settlement at mediation. The mediation agreement was made an order of the court on 26 ^th November 2021.

2 Clause (1) of the order provides that the petitioner shall pay to the respondent the sum of USD Three Hundred and Fifty Thousand (USD$350,000.00) on or before 31 ^st March 2022, in full settlement of all claims he may have in respect of the dissolution of the marriage.

3 Clause 2 of the order reads “the petitioner shall retain the matrimonial home situate at Lauriston in the Island of Carriacou in the state of Grenada together with its contents for her sole use and benefit and the respondent shall relinquish full interest in same to the petitioner. The respondent hereby agrees to execute the requisite documents to give effect to the intent and purpose of this provision. Should the respondent fail or refuse to execute the said documents upon receipt of the sum mentioned in paragraph 1 of this order, The Registrar of the Supreme Court shall be at liberty and is hereby authorized and directed to do so”.

4 The petitioner by notice application filed on 31 ^st March 2022, (i.e., the date due for the payment) seeks an order of the court to vary the terms of the order of 26 ^th November 2021. The petitioner's application seeks the following orders (i) make a part payment sum of USD $175,000.00 on the agreed date of 31 ^st March 2022 and for the remaining balance of USD $175,000.00 to be paid by annual payments of not less than (USD $35,000.00) by the 31 ^st March in each calendar year commencing on the 31 ^st March 2023 and continuing for each year until the 31 ^st day of March 2027 provided there remains a balance;(ii) The unpaid balance of the outstanding sum of USD 175,000.00 shall attract an interest rate of four point five percent (4.5%) interest per annum until payment in full or otherwise ordered by the court: (iii) The petitioner is at liberty to make payments on such days earlier than herein stated and in such additional amounts so as to reduce both the balance and the interest amount payable; (iv) That the respondent shall have a legal interest in the former matrimonial house limited to the amount outstanding only at any specific time:.(v) That in the event the applicant fails to make the payments promptly as set out in the application the applicant be allowed an extension of thirty (30) days to make any payment due failing which the matrimonial property situate at Lauriston shall be immediately listed for sale: (vi) In the event of a listing for sale of the said property and in the event of a successful sale the respondent shall be entitled to full payment of any capital sum outstanding together with accrued interest at the date of closing of the sale only after payment of all the expenses relating to the said sale;(vii) That in any event that a sale does not yield sufficient funds to extinguish the sum outstanding, any remaining sum owed to the respondent pursuant to the order dated 26 ^th November 2021 and this order herein the outstanding sum and related accrued interest shall be extinguished, there being no further matrimonial asset on which a lien may be placed.

5 The respondent, Hans Richard Luke, opposes the application and on 20 ^th April 2022 filed an application to enforce the 26th November 2021 order. The respondent also sought consequential orders in the following terms: (i) That the petitioner shall pay the respondent the agreed sum of USD $350,000.00 on or before 31 ^st May 2022, together with interest on the said sum computed from the 31 ^st March 2022 to date of payment at the rate of six percent (6%) per annum;(ii) Should the petitioner fail or refuse to comply then she is to convey her interest in the matrimonial home to the respondent on or before 7 ^th June 2022 upon payment the sum of USD $350,000.00 less interests at 6 % from 31 ^st March 2022 to 7 ^th June 2022; (iii) 50% of all monies payable to the petitioner between 31 ^st March 2022 to 7 ^th June 2022 by way of rents fees and related charges from lodgers including Airbnb short term tenants; (iv) All other terms in the order dated 26 ^th November 2021 shall remain in effect.

Law and Analysis

6 A consent order derives its authority from the contract made between the parties. The court under its inherent jurisdiction retains the power to grant an order for extension of time even though the parties had previously agreed the terms. The court must be very careful in exercising a discretion to vary the terms of an order which represents a contract 1.

7 In S. S. (Ancillary Relief): Consent Order (2002) EWHC223 (Fam.1) Bracewell J. said:

“The authorities demonstrate that the grounds for setting aside or varying a consent order fall into two categories: They are: (1) cases in which there was, at the date of the order an erroneous basis of fact and (2) cases in which there has been a material or unforeseen changes in circumstances after the order so as to undermine or invalidate the basis of the order”.

8 'Neuberger J in...