A legal battle between three sisters over ownership of a Pembroke home came to a head last month, as the Supreme Court decided the property should be divided among them.

Rosemarie Pedro had argued she gained sole ownership of the property after the 2013 death of her stepfather, Quinton Dowling Jr.

However, the court found her sisters, Wanda Pedro and Jennifer Pedro, were each entitled to one third of the property and that Rosemarie had used “undue influence” on her stepfather for her own benefit.

Assistant Justice Rod Attride-Stirling said: “The idea that Mr Dowling would cut off two of his stepdaughters is inconsistent with the evidence, but is supportive of the allegation that Rosemarie had acquired ascendancy and was acting in a manner which took unfair advantage of Mr Dowling.”

The court heard that Mr Dowling and his wife, Mary Dowling, bought a house on The Glebe Road on January 31, 1997 through a down payment and a $101,000 mortgage from HSBC, to be paid through Mr Dowling’s salary.

On the same date, the couple, with Rosemarie, signed a declaration of trust that said she would “hold the said house as trustee for myself and my surviving sisters as tenants-in-common in equal shares”.

The court heard the document was produced as part of a bank practice to get “young blood” on the mortgage to ensure someone younger was “on the hook” to repay the mortgage.

Mr Justice Attride-Stirling said in his August 23 judgment: “The uncontested evidence at trial was that the parents did not want to add Rosemarie to the title deeds at all, but did this at the insistence of the bank.

“Rosemarie played no role in the acquisition of the property, nor in the payment of the mortgages. Rosemarie claims, however, that this changed later.”

Rosemarie moved into an apartment at the property and she said she helped her mother and stepfather with the mortgage.

The court heard Mrs Dowling died in 2004, and in 2009 HSBC made a second loan to Rosemarie and Mr Dowling in the amount of $205,000, secured by a new mortgage.

Mr Dowling suffered a stroke in October 2011, which left him “severely incapacitated”, and he remained in hospital until his death in September 2013.

Wanda argued Rosemarie had used “undue influence” on Mr Dowling when he signed the 2009 mortgage, and that under the trust document both she and Jennifer were entitled to one third of the property.

However, Rosemarie denied having any undue influence and argued the trust document had no legal effect.

HSBC agreed with Rosemarie and claimed they were entitled to 100 per cent of the proceeds of the sale of the house should they enforce the mortgage.

Mr Justice Attride-Stirling said in his judgment that Rosemarie’s evidence “was not credible”.

Rosemarie denied allegations that she used the proceeds of the 2009 mortgage to pay for a dog valued at $6,000, televisions and overseas trips, and said the funds were used to make renovations in the house.

The judge said she produced “scant” evidence of where the money was spent and told the court the invoices were destroyed in a storm.

Mr Justice Attride-Stirling said: “On the evidence before me, I am unable to conclude that Rosemarie used all or even most of the loan proceeds for the renovations.

Further, I conclude that Rosemarie used some of the loan proceeds for her personal use.

“Given the state of the evidence, the court is not able to determine with precision what was spent and how it was spent.”

Mr Justice Attride-Stirling found that Rosemarie had put undue influence on her stepfather in the case of the 2009 loan.

He noted that she was the only person to benefit, as the loan was to improve her apartment, but not the one in which Mr Dowling lived.

The judge wrote: “Rosemarie lived next door to Mr Dowling. Her evidence is that she was his principal caregiver and that he relied on her.

“In the context of the evidence heard, I find that this led to a relationship where Rosemarie had acquired a significant degree of ascendancy over Mr Dowling.”

Mr Justice Attride-Stirling found that Wanda and Jennifer were entitled to two thirds of the property under the trust.

He found also that Rosemarie did not have the power to enter into the 2009 mortgage agreement, which meant the agreement was unenforceable.

The judge said HSBC did have a claim against Rosemarie for the full amount of the 2009 mortgage, but has no such claim against her sisters. If the bank enforces its claim and the property is sold, Mr Justice Attride-Stirling found Wanda and Jennifer would each be entitled to one third of the sale amount.

• To view the judgment in full, click on the PDF link under “Related Media”

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