Murray v Morgan [1997] FJHC 108; Hbc0063d.96s (7 August 1997)

Fiji Islands - Murray v Morgan - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 63 OF 1996

BETWEEN:

DANIEL MURRAY
Plaintiff

AND:

SAMUEL MORGAN
Defendant

Mr. T. Fa for thintiff/Respondent
Mr. M. Young for the Defendant/Applicant

DECISION

ass=MsoNormal style="margin-top: 1; margin-bottom: 1">

This is the defe's motion for an Order for removal of Caveat No. 387773 lodged by the Plaintiff against allt all that piece of freehold land known as Lot 1 on DP 1744 having an area of 4 acres 1 rood 28 perches as more particularly described in Certificate of Title No. 7703.

The background to the application is that the defendant resides in U.S.A. and the property in question has been owned by the MORGAN FAMILY since 1968 and the defendant is the registered proprietor of C.T. 7703 (the "property"). On 22 November 1995 Caveat No. 387773 was lodged and registered on behalf of the Plaintiff over the property. On 26 January 1996 Notice to withdraw the caveat was sent by the Registrar of Titles.

On 14 February 1996 the Court granted an interim extension of time until 29 Feb 1996 for the removal of caof caveat and it was further extended from time to time.

On 1 April 1996 the Court by consent adjourned theer of the caveat sine die with liberty to apply on three daee days notice, and the Plaintiff had commenced proceedings in respect of the property in the Agricultural Landlord and Tenant Tribunal. On this basis the defendant did not oppose the caveat.

On 18 Febru997 the Plaintiff's said application which was for a declaration of tenancy over the properroperty was dismissed.

Thereafter a Notice it dated 17 March 1997 was served on the Plaintiff and the defendant believed that the prop property has been vacated. The defendant offered to sell the property to the Plaintiff but the latter failed to accept the offer.

It is the intention of the defendant to and he requires the plaintiff to remove the caveat as he hahe has failed to show cause as to why the caveat ought to remain in force.

In reply to the defendant the Plaintiff states that he is still in occupation of the property. He said that he did not reply to the offer because the agreed price was $50,000.00 and not $78,000.00. He said that he will uplift that caveat if the defendant ‘adheres' to the agreement to sell for $50,000.00. He said that he had looked after the property for twenty-three years.

I have considered the written submissions of

Mr. Young. There was no submission from Mr. Fa although there was an order for same and despite a reminder.

Caveat No. 387773 was lodged by the Plaintiff by virtue of alleged "agreemenbe a tenant" and cand claiming an estate and interest as "equitable beneficiary" (as stated in caveat dated 22.11.95). But subsequently the Tribunal dismissed the Plaintiff's application for declaration of a tenancy. There was no mention in the Caveat of any agreement to sell the property to the Plaintiff. If there was an agreement to sell a Caveat could have been lodged on that ground but that was not done. This gives credence to the defendant's assertion that the Plaintiff failed to respond to the offer to sell the property. I accept the Defendant's statement on affidavit that the Tribunal after reviewing the evidence accepted that the "Plaintiff's payment as caretaker of the property was by way of free lodging".

In thercumstances I find that the Plaintiff has no caveatable interest in the property, and hencehence he is not justified in letting the caveat remain.

The right to lodge a caveat is a creature of statute and certain rights are conferred upon a person to lodge it. The provisions relating to ‘caveats' are contained in Part XVII of the LAND TRANSFER ACT CAP. 131. The caveator must bring himself within s106 of the Act which provides:

"106. Any person -

(a) claiming to be entitled or to be beneficially interested in any any land subject to the provisions of this Act, or any estate or interest therein, by virtue of any unregistered agreement or other instrument or transmission, or of any trust expressed or implied, or otherwise howsoever; or

(b)sferring any land subject to the provisions of this Act, ort, or any estate or interest therein, to any other person to be held in trust,

may at any time lodge with the Registrar a caveat in tescribed form, forbidding ting the registration of any person as transferee or proprietor of, and of any instrument affecting, such estate or interest either absolutely or unless such instrument be expressed to be subject to the claim of the caveator as may be required in such caveat."

Here the Plaintiff must show that he is "entitled" or be "benefic interested in any land&quod". Not only that, he must lodge a caveat against the land which he has caveated. What has he done in this case?

The whole basis on which the caveat was lodged has been eroded by the decision of the Agricultural Tribunal. That does not leave the Plaintiff with any interest in the property in respect of which he lodged the caveat to come within s106 to entitle him to persist in letting the caveat remain. The interest which he now alleges in his affidavits could have been protected by lodging a caveat but that was not done (CAMBRIDGE CREDIT (FIJI) LIMITED v W.F.G. LIMITED F.L.R. C.A. 182). Here the caveat that has been lodged does not show any caveatable interest of the nature alleged in reply to the defendant's application to remove caveat.

I find this to be a case in which the interest protected by the caveat has ceased to exist.

I agree with Mr. Young in this case there is no serious question to be tried in so far as the caveat is concernederned as the Plaintiff does not hold a caveatable interest. The alleged oral discussion between the parties regarding first option to purchase the property in itself is not sufficient to protect an alleged caveatable interest without the lodgement of a caveat; also there is no instrument in writing evidencing any agreement for sale and purchase. However, that alleged option was extinguished by the Tribunal's decision.

In ane, as stated by Mr. Young, damages would be an adequate remedy for the Plaintiff should he d he succeed in his claim under the Writ in this action. I note that the Plaintiff has not given the usual undertaking as to damages in this matter.

In conclusion, in the mstances and on the facts of this case, the defendant who is the registered proprietor of t of the property and who has a ready buyer for it should be free to sell his property free from encumbrances. The defendant has already been hampered in dealing with the property as a result of the said application before the Tribunal which dismissed the action. He has refused to vacate the property and now unlawfully persists in wanting to let the caveat remain when there is none to protect his alleged caveatable interest arising out of the alleged verbal sale and purchase discussion.

For the above reasons the defendant's application to remove the t is granted and the Registrar of Titles is directed to remo remove it from the Certificate of Title No. 7703 after 21 days of the date hereof. I award costs against the Plaintiff which is to be taxed unless agreed.

D. PathikJudge

At Suva
7 August, 1997

Hbc0063d.96s