Snow v Cornish [2003] FJHC 34; Hbc0058j.1998s (24 January 2003)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 0058 OF 1998S

Between:

GAVIN SNOW
Plaintiff

and

ALFRED BRUCE CORNISH
First Defendant

and

CHATTUR DASRATH SINGH
and
BARRIE NELSON SWEETMAN
(Trustees of the Estate of Gavin Snow Senior, Deceased)
Second Defendants

and

THE REGISTRAR OF TITLES
Third Defendant

Ms. S. Saumatua for the Plaintiff
R. Smith for the First and Second Defendants
N. Karan for the Third Defendant

JUDGMENT

On 2 May 1992 Gavin Snow Senior, deceased, signed a document entitled “Consent to transfer the title and assets”. A copy of the document is Exhibit B to an affidavit filed by the First Defendant filed on 12 November 1998. The text of the document (reproduced as executed) is as follows:

“This is to certify that I (GAVIN SNOW SENIOR) being the lawful owner of WAIWAI ESTATE, Savusavu and the sole proprietor of all the assets contained therein, do hereby declare that I now give my full and complete consent to wholly transfer my title, assets, and any other encumbrances thereto and the entire ownership over the said property to my immediate next of kin and my namesake (Gavin Snow f/n Arthur Edward Snow). I now give my consent to Mr. Gavin Snow to duly takeover the management and any other responsibilities in respect of the said property to ensure that efficiency and maximum productivity is achieved.

Signed: (Gavin Snow) LTP

Date: 2/5/92

Signed: (Gavin Snow f/n Arthur Edward Snow) LTP 2/5/92

Witness: (Detective Sergeant 1476 Isikeli Raisuni) 2/5/92.”

It is not part of the Plaintiff’s case as pleaded that he ever entered into possession of Waiwai Estate.

On 5 September 1992 Gavin Snow, Senior died. Probate of his will dated 30 August 1988 was granted to the trustees of his estate, the Second Defendants. A copy of the will is Exhibit A to the First defendant’s affidavit. Paragraph 4 of the will reads:

“I GIVE AND BEQUEATH to ALFRED BRUCE CORNISH absolutely my copra plantation at Savusavu comprised in Certificate of Title Volume 52 Folio 5152.”

The copra plantation at Savusavu is the same property as the Waiwai Estate.

According to paragraph 4 of an affidavit filed by Sanjlesh Lal, law clerk, on 12 January 1999 the property was transferred to the First Defendant by the Second Defendants on 4 June 1993. A copy of the transfer is Exhibit A to Mr. Lal’s affidavit.

The Plaintiff’s case is that the property had been given to him by Gavin Snow, Senior, deceased and that accordingly it no longer formed part of Gavin Snow Senior’s estate. Therefore, it is said, the Second Defendants acted wrongly (and indeed fraudulently) in treating it as part of the estate and in transferring it to the First Defendant. The Plaintiff seeks a declaration that the property belongs to him. He also seeks an order that it be conveyed to him by the First Defendant and that the registration by the Third Defendant of the transfer to the First Defendant be cancelled.

The Plaintiff has been represented by three different firms of solicitors at various times since the writ was issued. As will be seen from the papers the approach taken by these legal advisors has been broadly similar; they emphasised the factual merits of the case and in particular that the "consent to transfer” document has not been impeached and that the First and Second Defendants were fully aware of its existence prior to probate being granted. Three written submissions were filed on behalf of the Plaintiff, two by Mr. E. Veretawatini and one by Mr. D. Sharma. Mr. Smith filed his submission on behalf of the Defendants on 30 September 2002.

Mr. Smith’s submissions, in contrast to those filed on behalf of the Plaintiff, emphasised the requirements of the Land Transfer Act (Cap 131 – the Act) and the principles of equity.

The transfer of freehold land under the Act is governed by Part VI. Under Section 44 (1) a proprietor of land wishing to transfer it is required to execute a transfer in the prescribed form included in the First Schedule to the Act. This transfer must precisely refer to the land to be transferred and must be properly attested. Transfers must be registered and, under Section 44 (3) do not take effect until registration has taken place. Where a transfer “purports to transfer the whole or part of the land mentioned ..... in any certificate of title” then, under the provisions of Section 45 “the transferor shall deliver up ... the Certificate of Title to his land” to the Registrar for registration.

In the present case none of these requirements was met and accordingly it is clear that the "consent to transfer” document was not an effective statutory transfer as defined by the Act.

Perhaps mindful of these difficulties the Plaintiff’s legal advisors suggested in the alternative that the “consent to transfer” was a deed of gift. In answer, Mr. Smith first referred to the actual wording of the document and secondly to the law of gifts.

Mr. Smith submitted, and I agree, that the first sentence of the “consent to transfer” in fact goes no further then to indicate consent in principle to a transfer. It does not purport to achieve the transfer which was being consented to. In my view the last section of the document is rather more consistent with the view that the donee was to take over the management of the property before the transfer was actually effected than with the view that the donor was specifying who was to take over the management of a property which he had already given away.

Of more profound difficulty, as I see it, to the Plaintiff is the law of incomplete gifts.

Both Mr. Veretawatini and Mr. Smith referred to Corin v. Patton (1989 – 1990) 169 CLR 540 in which the High Court of Australia reviewed the authorities and, following Milroy v. Lord [1862] EngR 951; (1862) 4 De G.F & J 264 held that in order that a voluntary settlement be valid and effectual the settlor must have done everything which, according the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him.

As explained by the High Court “all that was necessary to be done” referred to those acts which had to be performed by the settlor and prominent among these is the production of the certificate of title. The High Court, at page 560 said:

“it is apparent that a gift of (Torrens system land) cannot be regarded as complete in equity while the donor retains possession or control of the certificate of title.”

In the present case it was never advanced that Gavin Snow Senior, deceased did any more than execute the “consent to transfer” document. The fact that the Second Defendants successfully obtained the re-registration of the property in the name of the First Defendant suggests that they had no difficulty obtaining the certificate of title.

As I see it, this is a case where the intentions of the donor, Gavin Snow Senior, deceased, were fairly clear but unfortunately the alternative requirements of the law which would have enabled the transfer or the gift to become effective were not met. As can be seen from Corrin v. Patton (supra) the Courts have been strict in not allowing the now the well settled principles in circumstances such as these to be departed from. In my view the recognised principles must be adhered to in this case also. The Plaintiff’s claim fails and is dismissed.

M.D. Scott
Judge

24 January 2003