MCGREGOR
THE COURT of Appeal's recent decision in the case of Chin v Chin would not have come as a surprise to those who have followed the matter closely since 1993, because this is the third time that a court has declared that Audrey Chin is entitled to a 50 per cent interest in Lasco.
On May 10, 1999 the Court of Appeal had made a similar ruling, which resulted in an appeal to the Privy Council by Mr. Chin. In February 2001, the Privy Council determined that the application should be re-heard in the Supreme Court and there the Hon. Mr. Justice Neville Clarke (deceased) ruled in Mrs. Chin's favour on December 6, 2001. The Hon. Mr. Justice Seymour Panton is the only local judge who came to a different decision, and he did so in 1996 without having subjected the witnesses to cross-examination.
The case demonstrates the result of patience and forbearance, which are often required in order to see a matter through to the end. A number of things struck me regarding the length of time it has taken to arrive at this point:
* Audrey Chin first applied for a declaration under section 16 of the Married Women's Property Act more than 12 years ago on December 9, 1993.
* The application was first heard and determined in the Supreme Court on October 18, 1996, almost three years after it was filed.
* The matter has been to both appellate levels of our judicial system. It was heard by the Court of Appeal on two occasions, and once by the Privy Council.
After more than a decade of litigation, the matter has finally come to an end (or, has it?). It is still left to be seen whether Lascelles Chin will exercise his right to appeal to the Privy Council, again.
It is not difficult to identify the main similarity between this case and Helga Stoeckert v Paul Geddes. They both involved women who sought to obtain declarations that they had significant interest in businesses in which their mates also had interests. However, there are two striking differences, the latter of which ultimately affected the outcome of the cases. Firstly, the fact that the Chins were married made it possible for Audrey Chin to make an application pursuant to the Married Women's Property Act, while Helga Stoeckert did not have that option. Secondly, Audrey Chin was a registered shareholder and the managing director at Lasco, while Helga Stoeckert was neither a shareholder nor an active participant in Desnoes & Geddes.
Audrey Chin therefore had a substantial basis on which to assert that there was a common intention between the parties for her to share equally in the business, and the court has so held. This reveals that each case will be determined on the basis of its own peculiar facts and, in the Chin case, the decision ultimately turned on the credibility of the witnesses.
The court accepted Audrey Chin's evidence that she had played a pivotal role in launching the company. It also found that the allotment of 1 share each to Lascelles and Audrey Chin was an expression of the parties' common intention to share equally in the business. It is also important to note that both Lascelles Chin's and Vincent Chen's evidence that Audrey Chin was aware that Lasco's share capital was increased to 250,000 shares and that she had consented to the allotment of 249,998 shares to Lascelles Chin were rejected. The Court of Appeal ruled that it had no basis on which to impugn Justice Clarke's decision, especially as they did not have the opportunity to assess the witnesses as he did.
If the Property (Rights of Spouses) Act was in effect, both Helga Stoeckhert and Audrey Chin would have been able to make their applications under that act. However, it is uncertain whether this would have altered the judgment.
It will be interesting to see what Lascelles Chin and his legal team will do next.
Sherry-Ann McGregor is an attorney-at-law and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com.
