Housing Authority v Baselala [1998] FJHC 156; Hbc0162j.98s (10 November 1998)

Fiji Islands - Housing Authority v Baselala - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC0162 OF 1998

IN THE MATTER
of Section 169 of Land Transfer Act, 1971

BETWEEN:

HOUSING AUTHORITY
a statutory body duly constituted under the provision
of the Housing Act and having itng its Head Office at Valelevu, Suva
Plaintiff

AND:

PENI BASELALA
of Lot 33 on D.P. 5217, Makoi
Defendant

S. Chandra for the tlaintiff
S.R. Valenitabua for the Defendant

Dates of Hearing and Submissions: 23rd, 24th and 31st July 1998
Date of Judgment: 10th November 1998

JUDGMENT

The Plaintiff, in this action is seeking vacant possession of a property situated at Lot 33 on D.P. 5217, Makoi comprised in Lease No. 236512 (hereinafter referred to as "the property") currently occupied by the Defendant.

On the 24th of April 1998 Pathik J. gave the Defendant leave to defend the action which is taken under Section 169 of the Land Transfer Act. The Summons was supported by an affidavit of Alipate Naiorosui, Secretary of the Plaintiff sworn on the 12th of March 1998.

Pursuant to the leave given by Pathik J. the Defendant swore an affidavit on the 29th of May 1998 and the Plaintiff swore an Affidavit in Reply on the 29th of June 1998.

FACTS

The Defendant is a Casual Engineer employed by the Ports Authority of Fiji and is the former Lessee of the property. On 20th December 1986 the Defendant executed a Mortgage in favour of the Plaintiff for a consideration of $10,807.00 to be repaid at the rate of $25.00 per week from 1986 to 1988 and $21.00 per week from 1989 onwards.

The Defendant defaulted in payments under the Mortgage but the Plaintiff then made new arrangements with the Defendant to allow him to continue to occupy the property as Lessee.

Under the new arrangements the Defendant was to make an adjusted payment rate of $59.00 per week but again fell into arrears.

The Plaintiff sent several reminders and warning letters to the Defendant until finally the Plaintiff foreclosed on its Mortgage and the property was then advertised for sale in the Fiji Times and Daily Post newspapers on the 13th of August 1994.

As a result of these advertisements an offer to purchase was made but the proposed purchaser subsequently withdrew his offer.

Thereafter, the Plaintiff decided to sell the property by auction sale but before doing so at the request of the Defendant gave the Defendant another opportunity to reduce his arrears. Again the Defendant defaulted. The property was then advertised again for sale by auction on the 11th of February 1995 when only one bid was made and was later withdrawn.

Consequently the Plaintiff then proceeded with foreclosure action and registered the property under its name on 30th April 1997.

Subsequently the Defendant again approached the Plaintiff in February 1998 with a request that the property be re-sold to him. The Plaintiff agreed to do so on condition, among others, that the Defendant's son be joined as a co-purchaser with the Defendant the reason being that the Defendant's son was in full-time employment. The new sale price of the property was $25,300.00. Unfortunately the Defendant did not qualify for a loan and on the 22nd of April 1998 the Plaintiff advised him by letter that because of his continued defaults in his loan repayments and false promises to settle his debts the Plaintiff intended to exercise its powers as Mortgagee on the property with a view to selling it to somebody who could afford the sale price and thus pay the arrears due to the Plaintiff. Prior to this on the 18th of February 1998 the Plaintiff issued a Notice to Quit to the Defendant which was served on the 30th of March 1998.

The Defendant does not deny he was continually in arrears in his repayments to the Plaintiff but argues that the Order for Foreclosure made in favour of the Plaintiff on the 30th of April 1997 is unlawful and that consequently the Plaintiff's title to the property is defeasible. This allegation requires the Defendant to prove that the Plaintiff was guilty of fraud in obtaining title to the property.

Section 40 of the Land Transfer Act states that except in the case of fraud, no person taking a transfer from the proprietor of any estate or interest in land subject to the Act shall have his title defeated. This is commonly referred to as indefeasibility of title and is probably the most singular feature of the Torrens System of land transfer which the Land Transfer Act and similar legislation in New Zealand and Australia incorporates.

The fraud alleged by the Defendant is that:

(i) under the new arrangements for repayments he did not default at all;

(ii) no advertisement for a Mortgagee Sale was published;

(iii) no advertisement for an Auction Sale was published;

(iv) there was no Auction Sale;

(v) thus there could not have been any bidding or any Auctioneer's Certificate could not have been issued or at least was not validly issued.

The Plaintiff admits that under the new arrangements the Defendant made payments of $1,754.00 until 1996. The evidence is that the total sum he should have paid from March 1995 to 31st December 1995 was $59.00 x 36 weeks or $2,124.00. On the 13th of February 1998 the Defendant acknowledged in writing that he owed the Plaintiff $2,731.59 as at that date.

This is proved by annexure 'D' to the affidavit of Alipate Naiorosui sworn on the 29th of June 1998 and is a request for time to pay arrears made by the Defendant to the Plaintiff. Thus

I am satisfied that the default by the Defendant continued for more than six months and so, contrary to the contention of the Defendant, entitled the Plaintiff to foreclose under its Mortgage by virtue of Section 73 of the Land Transfer Act which stipulates this period as the minimum under which an application for foreclosure can be made.

As to the submissions that the property was not advertised, the Defendant admits this in paragraph 5(b) of his affidavit of the 29th of May 1998.

The Defendant also admits in paragraph 7(b), (c) of his affidavit that the foreclosure was registered in accordance with the provisions of the Land Transfer Act. He exhibits to his affidavit the Plaintiff's application for foreclosure under Section 73 which was registered on the 30th of April 1997 at 12.20 p.m. by the Registrar of Titles and is numbered 423163. The effect of this registration is that the registered instrument attracts the consequences set out in the Land Transfer Act. If any person suffers loss or damage as a result of such registration he or she must prove this so as to maintain a claim against the Registrar of Titles.

In my judgment the Defendant has not produced any such evidence.

I do not propose to discuss at any length the case law on fraud under the Land Transfer Act which is now well settled. I shall confine myself to the remarks of Edwards J. in Fels v. Knowles [1906] NZGazLawRp 66; (1906) 26 NZLR 604 at 620 which were quoted with approval by the Court of Appeal of New Zealand in Bunt v. Hallinan [1984] NZCA 98; (1985) 1 NZLR 450 at 458. Edwards J. said:

"The cardinal principle of the statute is that the register is everything, and that, except in cases of actual fraud on the part of the person dealing with the registered proprietor, such person, upon registration of the title under which he takes from the registered proprietor, has an indefeasible title against all the world. Nothing can be registered the registration of which is not expressly authorised by the statute. Everything which can be registered gives, in the absence of fraud, an indefeasible title to the estate or interest, or in the cases in which registration of a right is authorised, as in the case of easements or incorporeal rights, to the right registered."

This passage was also quoted with approval by the Privy Council in delivering its judgment in Waimiha Saw Milling Co. (In Liquidation) v. Waione Timber Co. (1926) A.C. 101 at p.106.

In my judgment therefore the interesting, and if I may say also with respect, the rather ingenious submissions on behalf of the Defendant must be rejected. I find no evidence of fraud which would allow the registration of the Plaintiff to be set aside. Under Section 172 of the Land Transfer Act the onus is on the Defendant to show cause why he should not deliver possession of the land to the Plaintiff and in my judgment he has failed to do so.

The Order of the Court therefore is that the Defendant deliver vacant possession to the Plaintiff of the land the subject of these proceedings and that he must also pay the Plaintiff's costs.

JOHN E. BYRNE
JUDGE

Cases referred to in judgment:

Bunt v. Hallinan [1984] NZCA 98; (1985) 1 NZLR 450.

Fels v. Knowles [1906] NZGazLawRp 66; (1906) 26 NZLR 604.

Waimiha Sawmilling Co. (In Liquidation) v. Waione Timber Co. (1926) AC 101.

The following additional authorities were cited in argument:

Assets Company Limited v. Mere Roihi [1905] UKLawRpAC 11; (1905) AC 176.

Friedman v. Barrett (1962) Qd.R. 498.

Frazer v. Walker (1967) AC 569.

Logue v. Shoalhaven Shire Council (1979) 1 NSWLR 537.

Land Law by Peter Butt, Second Edition, The Law Book Company Limited 1988 at p.529 citing Oh Hiam v. Tham Kong (1980) 2 B.P.R. 9451 at 9454.

Harilal Raniga v. Trikam Nominee (No. 1) Ltd and Others Civil Appeal No. 48 of 1978 - judgment of Court of Appeal dated 30th November 1978.

The Torrens System in Australia by D.J. Whalan - 1st Edition 1982.

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