Fong v Weatherall [2005] FJHC 416; HBC0169d.2004s (10 November 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 169 OF 2004

IN THE MATTER of Section 110(3) of the Land Transfer Act Cap. 131

Between:

CISI FONG
the sole Executrix and Trustee
of the Estate of ANDERSON FONG
Plaintiff/Respondent

and

FREDRICK WEATHERALL
Defendant/Applicant

Ms. B. Narayan for the Plaintiff
Ms. P. Salele for the Defendant

Date of decision: 10 November 2005

DECISION

This is an application by Fredrick Weatherall (the ‘defendant/ applicant’) for Orders as follows:

(i) that the interim Order of 14 May 2004 extending period of caveat 537295 be set aside; and

(ii) the caveat 537095 be removed forthwith.

Background

The background to the case has been succinctly stated by the Plaintiff’s/Respondent’s counsel Ms. Narayan as follows and I set it out for ease of reference:

The Defendant/Applicant (hereinafter referred to as the “Defendant”) is the executor and trustee in the estate of his late father Frank Weatherall.

Forming part of Defendant’s father’s estate is a piece of land known as Raviravi and Dreka (part of) on Lot 1 DP No. 3232 comprised in Certificate of Title No. 20247 in the District of Savusavu and Island of Vanualevu containing 22 acres and one perch (hereinafter referred to as “the land”).

On 22^nd of May 1990 the Defendant had the land transferred in his name.

The Plaintiff/Respondent (hereinafter referred to as the “Plaintiff”) has lodged a Caveat No. 537095 against any dealing over the land.

The Defendant caused a notice to be served by the Registrar of Titles on the Plaintiff for the removal of the caveat whereby the Plaintiff applied to this Honourable Court on Ex-Parte Summons dated 11^th May 2004 and on grounds contained in the Affidavit of Cisi Fong sworn on the 11^th of May 2004 for extension of the caveat.

On the 14^th of May 2004 this Honourable Court inter-alia made an Order allowing extension of the caveat.

The present application before this Honourable Court is the Defendant’s Summons dated 9^th of August 2004 seeking to set aside the Order made on the 14^th of May 2004 and for removal of the caveat. The Defendant relies on the Affidavit of the Defendant sworn on the 2^nd of August 2004.

The Plaintiff opposes the said application on the grounds contained in the Affidavits in Reply of Cisi Fong sworn on the 12^th of October and Brij Narayan also sworn on the 12^th of October 2004 both filed herein.

The plaintiff’s case

The plaintiff claims to have a caveatable interest in the land by virtue of a Sale and Purchase Agreement dated 8 March 1985 entered into between the plaintiff’s late husband, Anderson Fong and Brij Narayan of the one part and the defendant’s late father Frank Weatherall and two others of the other part.

The rest of the events after the agreement are set out as follows by counsel in her written submission at p.4 culminating in the placing of a caveat over the land to protect her interest:

Pursuant to the Agreement the Defendant’s late father had agreed to give two acres of the land to the Plaintiff’s late husband, Anderson Fong in consideration for assistance given and expenses incurred in obtaining the Certificate of Title over the land. Similar agreement was made by the other two vendors named in the Agreement for obtaining Certificate of Title over their land being Certificate of Title Nos. 20548 and 20549.

The Plaintiff’s late husband and Brij Narayan kept their part of the Agreement and expended monies, time and effort in obtaining the title of the land and those of the other two vendors and handed over the titles to the Defendant’s late father and the other two vendors.

The Plaintiff’s late father however failed to transfer the land to the Plaintiff’s late husband and Brij Narayan in breach of the Agreement. Since the Plaintiff and the Defendant are related the parties held a meeting between the two families to try to amicably resolve the situation but the Defendant refused to give effect to the Agreement.

Moreover the Defendant is attempting to dispose off the land in favour of a third party as admitted in paragraph 16 of the Defendant’s Affidavit sworn on 2^nd August 2004 hence the Plaintiff had to immediately place a caveat over the land to protect her interest.

Defendant’s case

The defendant does not deny the existence of the Agreement. He denies the plaintiff’s entitlement under the Agreement by challenging the validity of the Agreement on the grounds, inter alia, that the consideration given for the Agreement by way of costs was inadequate in law, that it is voidable as it fails to specify precise two acre area that is the subject of the Agreement and that the defendant’s late father’s capacity to contract at the time was in question and that he relies on the plea of ‘non est factum’ on behalf of his late father.

Issues

The issues for Court’s determination are:

1. whether the court should set aside the interim order dated 1^st May 2004 to allow the removal of Caveat No. 537095 filed by the plaintiff/respondent?
   
2. Whether removal or non-removal would affect either party and to what extent?
   

Consideration of the application

As ordered both counsel filed written submissions. I found them very helpful.

Subsequent to my order herein of 14 May 2004, allowing extension of the caveat until further order and giving liberty to the defendant to apply for removal of the said order, the plaintiff filed a Writ of Summons dated 10 June 2005 being action No. 282/05 which she is entitled to do because of the Notice served on her for the removal of the caveat.

In that action the plaintiff is claiming against the defendant the following:

(i) that the Caveat No. 537195 registered on 13^th January 2004 remain on the property pending determination of this action;

(ii) specific performance of the Agreement;

(iii) special and general damages for breach of contract.

In the Statement of Defence filed therein the defendant prays for the claim of the plaintiff to be dismissed and the caveat removed.

The plaintiff has a caveatable interest in the land by virtue of the said Sale and Purchase agreement and s106 of the Land Transfer Act Cap. 131 protects that interest.

On removal of caveat, in Bank of Baroda v. Anil Kumar Sabharwal Civil Action No. HBC0105 of 2001L Gates J said:

“A wide discretion is given to a judge in Section 110(3) by the phrase “upon such evidence as the court may require” in considering applications for removal of a caveat.”

In Cambridge Credit (Fiji) Limited v. W.F.G. Limited 21 F.L.R 182 the Court of Appeal at p. 185 stated:

“Section 106 of the Fiji Act is designed to protect unregistered instruments in land. For instance an agreement for sale and purchase, an unregistered mortgage, an agreement to give a mortgage or an option to purchase land are just a few examples of unregistered instruments which are capable of being protected by the lodging of a caveat.”

The Court, further dealing more specifically with the requirements of Section 106 stated:

“The respondent must however, bring itself within the provisions of Section 106 and in order to do this must satisfy the Court that the following are fulfilled:

(1) That it is a person claiming to be entitled to or to be beneficially interested in any land estate or interest under the Act; and

(2) That it is so claiming by virtue of any unregistered agreement or other instrument or transmission or any trust expressed or implied or otherwise howsoever”.

In Sir Sathi Narain v. Phyllis Kathleen Malley 34 F.L.R. 118 at 120 Fatiaki CJ stated:

‘The scope and purpose of the section dealing with caveats has been generally and succinctly described by the Privy Council in the N.Z. case of Abigail v Lapin (1934) A.C. 491 at p.500:

“For the general protection of equitable interests or estates, the Act provides that a caveat may be lodged with the Registrar by any person claiming as cestui que trust, or under any unregistered instrument or any other estate or interest: the effect of the caveat is that no instrument will be registered while the caveat is in force affecting the land, estate or interest until after a certain notice to the person lodging the caveat. Thus, though the legal interest is in general determined by the registered transfer, mortgages or other changes, the register may bear on its face a notice of equitable claims, so as to warn persons dealing in respect of the land and to enable the equitable claimant to protect his claim by enabling him to bring an action if he claims is disputed”.’

The Courts will give the caveator full opportunity of litigating all matters that might be in dispute thereby protecting the disputed land pending the hearing and determination of the action which the caveator has instituted.

In this case the defendant instead of resolving the dispute attempted to dispose off the property in favour of a third party which led the plaintiff to take action immediately by lodging a caveat over the land.

In dealing with an application of this nature the Court does not attempt to resolve conflict of evidence on affidavit. In this regard in Sir Sathi Narain (supra) Fatiaki C.J. on p.121 said:

“In dealing with this application I am mindful that it is inappropriate for this Court at this stage to determine the rights of the parties to this action in a summary manner particularly where there are conflicting affidavits or where the question of a caveatable interest is a distinctly arguable one.”

Conclusion

For the above reasons, having considered the affidavits filed herein and the submissions of both counsel, I am satisfied that there are ample grounds for letting the caveat remain in force.

This is much more so to protect the beneficial interest of the plaintiff in the land particularly where the defendant is intending to dispose off the land without the determination of the dispute in relation to it between the parties.

The defendant’s application is therefore dismissed and the Court’s order of 14 May 2004 for extension of caveat stands until the hearing and determination of the said action No. 282/05. The costs are to be costs in the cause.

D. Pathik
Judge

At Suva
10 November 2005