Singh v Singh [2009] FJHC 274; HBC350.2003 (8 December 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 350 OF 2003

BETWEEN:

BIRMATI SINGH
f/n Randhir Singh of Tuvu, Ba
Plaintiff

AND:

PRADEEP SINGH
f/n Jaswant Singh of Tuvu, Ba but now of Nasoso, Nadi.

AND:

INDIRA DEVI
retired of Carlton Victoria, Australia.

AND:

SUNIL DEEP SINGH
of 63 Gallipoli Parade, Vascoe Vale South Melbourne,
Director of Computer Company.

AND:

JAI DEEP SINGH
Qantas Flight Attendant of Broadmeadows, Victoria, Australia.

AND:

PRATIMA DEVI SINGH
Public Servant of Northcote, Victoria, Australia.

AND:

KAMAL DEEP SINGH
Businessman of Toronto, Canada.

AND:

CHANDRA DEEP SINGH
of Surrey, BC, Canada.
Defendants

Before: Master Anare Tuilevuka
Counsel: S.B. Patel for the 1st Defendant.
All other parties in person.

Date of Hearing: 20th October, 2009
Date of Ruling: 08th December, 2009

RULING
(Appointment of Surveyor)

INTRODUCTION

1. The parties (Surya Deep Singh (one of the Plaintiffs), Pradeep Singh (1st Defendant – Mr. Patel’s client), Indra Devi, Sunil Deep Singh, Jai Deep Singh, Pratima Devi Singh, Kamla Deep Singh and Chandra Deep Singh are all siblings and beneficiaries of 1/9 share in the estate of their late father Jaswant Singh.

2. The first Plaintiff, Birmati Singh is their elderly mother and also 1/9 beneficiary of the same estate.

3. The second Defendant, Indra Devi is now deceased. I am told that her survivors (son and husband are in the process of taking out a probate in Australia on her estate). I have decided this has no bearing on the immediate issue at hand in this case – the appointment of a surveyor.

4. By way of background, there is a long standing strife in the relationship between Mr Patel’s client and Mr. Surya Deep Singh. The earliest processes filed in Court in 2003 document this. That strife has survived the years to the present day and is still obvious when the parties appear in Court before me.

5. For the present case, suffice it to say that the parties have been wrangling over the estate of their late father for some time. However, in July 2007, Mr. Justice Connors recorded some consent Orders regarding how the land which their late father had bequeathed them was to be subdivided.

6. This brief ruling is "yet" another adjunct to the Consent Orders that Mr. Justice Connors’ made on 13th July 2007 and to Master Jay Udit’s first adjunct ruling dated the 12th day of November 2008.

CONSENT ORDERS

7. The background of the issues relating to the appointment of a surveyor is canvassed well in Master Udit’s Ruling. The Surveyor to be appointed is to carry out a subdivision of Certificate of Title No. 7736 to nine (9) lots of equal sizes as per the Order of Mr. Justice Connors which are as follows:

(i) whole of Certificate of Title No, 7736 to be divided into nine (9) equal lots.

(ii) the subdivision and valuation of the said nine (9) lots is to be done by an independent valuer to be Court appointed in the first instance and such appointment to be made within 14 days of this Order.

(iii) the Costs of subdivision and Valuation is to be paid from the cane farm proceeds presently held with the ANZ Bank at Lautoka and such other Bank as is in receipt of cane farm proceeds and this includes future cane proceeds up to the date of Subdivision and any shortfall between the cost of subdivision/valuation and the funds available, the same shall be paid in equal shares by the parties herein.

(iv) the parties herein to do all things necessary to effect complete subdivision/valuation and this here undertaking binds the successors and assigns of each of the parties herein and the subdivision/valuation is to be completed within six months of this Order.

(v) Upon completion of subdivision and Valuation the said nine (9) lost are to be placed in common pool in a manner by mutual agreement or the most senior party herein having the first draw and the other parties to follow suit.

(vi) The abovementioned drawing of the lots is to be supervised by the Deputy Registrar, High Court, Lautoka and such drawing of lots is to be done within thirty days of completion of subdivision/valuation.

(vii) Upon completion of the draw by each party herein there is to be a equality of exchange in value amongst the said nine (9) lots and the difference of payment if any is to be made within ninety days of confirmation of any such difference.

(viii) All parties are to do all things necessary to effect issuance of separate certificates of title to each party herein over their chosen lot.

(ix) There is to be no Order as to Costs of these proceedings.

TENDER PROCESS

8. Even after the Consent Orders were made, the parties were still not able to agree as to the appointment of an independents surveyor and valuer. This caused the Deputy Registrar to invite tenders from registered surveyors in the open market.

9. A few tenders were reviewed and the parties were accorded an opportunity to select a successful tender. Still, they were not able to see eye to eye on this.

10. Seeing that the parties could not even agree on a surveyor from the pool of tenders, the Deputy Registrar referred the file to Master Udit to appoint a surveyor.

APPOINTMENT OF BRIJ LAL & ASSOCIATES

11. Master Udit apparently heard submissions from all parties after which he concluded that "it is clear that all agree to the appointment of Brij Lal & Associates as the surveyor pursuant to the Order". Master Udit did observe that "Mr. Patel, appearing for Pradeep Singh, did express some concern on the tender by Brij Lal & Associates. His concern was as to whether Mr. Brij Lal’s tender amount was sufficient to cover for the survey to its completion bearing in mind the scope of the work involved. Mr. Brij Lal was to clarify his position on this later in Court to Master Udit. So after hearing all the parties including Mr .Brij Lal, Master Udit was "satisfied Brij Lal & Associates is both competent and capable of duly complying with the order of His Lordship Mr. Justice Connors".

12. Master Udit, having observed the way the parties carried on in front of him, commented in his adjunct ruling that the problem with selecting a surveyor to carry out the survey work was due to "their personal differences and not the competence of the tenderers".

MASTER UDIT’S ADJUNCT RULING

13. Master Udit made the following Orders on 12th November 2008 which were adjunct to Mr. Justice Connors J’s Orders:

a) Brij Lal & Associates is appointed as surveyors in accordance with and for the purposes of executing the Order of His Lordship

Mr. Justice Connors sealed on 13th July 2007

b) Mr. Brij Lal, a registered surveyor of Brij Lal & Associates is to undertake the survey in accordance with the Order of His Lordship Mr. Justice Connors

c) The surveyor is to pay a sum of $13,500-00 plus 12.5% value Added Tax.

d) The scheme of work and schedule of payment is as follows:

- "Field work will be completed within a period of 4 – 6 weeks

- Plan draughting and preparation of seven sets of Application to Subdivide for the consideration and approval of the Director of Town and Country Planning and the Ba Rural Local Authority will take another two or three weeks

- Director of Town and Country Planning may take two to three months to approve the proposal. This proposal is always subject to final survey.

- Above time lapse will be used to draw the survey plans (which could be a 4-6 sheets to cover the total areas). Opportunity will be given to discuss Proposal plan with all interested parties and incorporate any changes. This will be once only opportunity; further changes will result in price variation.

- Survey plan will be amended and may involve further field work to incorporate any approval conditions stipulated by the Director of Town and Country Planning – two weeks.

- Survey plan will be submitted to the Titles Office/Lands Department for final checks and approval – may take from 4 – 6 weeks. Final plans will show nine lots of equal area with Access from existing Kings Road

- Price quoted in the tender exclude VAT and are Professional charges only. Payment for work will be as follows:

25% deposit – work will commence within 7 days of payment

Further 25% on completion of all field work

Further 25% on completion of all calculations and preparation/presentation of survey plans

Final 25% on approval of survey plans by the Lands Department.

(e) A sum of $16,000-00 from Account No. 2310443 ANZ Bank at Lautoka, which funds are held pursuant to paragraph 3 of his Lordship Mr. Justice Connors’ Order, be paid by way of a bank cheque to the High Court, which sum shall remain deposited for the purposes of payment to Brij Lal & Associates. ANZ Bank is to prepare a Bank Cheque and forward the same to the Deputy Registrar of the Lautoka High Court

(f) The Deputy Registrar of Lautoka High Court is to authorize payment as set out in paragraph (d) above.

(g) The surveyor is to complete the entire survey process in conformity with His Lordship’s Order within 6 months effective from 1/12/2008.

(h) Parties are at liberty to apply.

DEATH OF MR. BRIJ LAL

14. As it turns out, Mr. Brij Lal passed away unexpectedly in December 2008 shortly after his appointment to carry out the work. That was brought to the attention of this Court vide a letter dated 20th August 2009 of Surya Deep Singh. The said letter says as follows:

"Mr. Brij Lal passed away unexpectedly in December 2008 before the surveying work could be completed. The company has since informed us that they are unable to complete the surveying work assigned to them.

Brij Lal and Associates have recommended that the work be continued by the company called PROSURVIS who has also made a submission to the request for tender. PROSURVIS is willing to continue and complete the work of Brij Lal & Associates for the same amount and according to the same terms and conditions of the Order of the Master of the Court. We all unanimously agree that PROSURVIS is capable of complying with the requirements of the surveying and subdivision works"

PROCEEDINGS BEFORE ME

15. After Surya Deep Singh’s letter was put before me, I then directed the Registry to issue a NOAH to all parties returnable 28th August 2009 for their views on the letter of Surya Deep Singh.

16. Subsequently, the matter was to be called before me on the 28th August 2009, 04th September 2009, 8th September 2009, 9th September 2009, 10th September 2009, 20th October 2009 and 7th December 2009.

17. It became clear at the outset that all the parties except Mr. Patel’s client were keen on appointing ProSurvis to complete the work. Mr. Patel, on the other hand has highlighted the following concerns at various points throughout the proceedings:-

(i) a lot more needs to be clarified before ProSurvis is engaged e.g. on what amount and how much it will cost the parties, to engage ProSurvis, what are their terms and conditions(since Brij Lal & Associates had quoted $13,500 and $16,000 has been set aside to pay for surveyors costs). This has since been clarified by Mr. Whippy (see paragraph 18 below).

(ii) the Order of Mr. Justice Connors was, to quote Mr. Patel, "for equitable distribution in size and value". The Orders of Connors J has to be read in totality so that the lots, as far as is possible, needs to be equal in area and in value. Some parts of the land is cultivatable while other are not. Also, there are sitting tenants concentrated on some parts of the land and not in other parts. The issue of access and water path will affect value of land.

(iii) no Scheme Plan was ever submitted to his client for consideration – let alone agreed to by his client

(iv) if monies have already been paid to Brij Lal, are these to be refunded

(v) ProSurvis appears to be biased as they seem to have been approached by the other litigants. This defeats the whole purpose of appointing an "independent surveyor". Whippy is taking instructions from the other litigants.

(vi) fresh tenders need to be called.

(vii) an account of income and expenditure from the land from the other parties.

18. On 4th September 2009, Mr. Michael Whippy of ProSurvis appeared in Court. Whippy informed the Court that since the passing of Mr. Brij Lal, he has completed three survey jobs that Mr Brij Lal had started. When asked who had approached him for this job, he said it was Mrs. Brij Lal who contacted him. He said Mr. Brij Lal had only done one week of survey work when he passed on. Mr. Whippy told the Court that he is able to carry out the work from survey to plan registration for $16,000. A portion of that (perhaps 25%) may have to be paid to Brij Lal. Mr. Whippy did say that whatever work Mr. Brij Lal did would have to be recorded in his field book. But Mrs. Lal has not been able to locate that book. Mr. Whippy said either way, he would have to start afresh.

19. Mr. Whippy did say that it would be very difficult to subdivide the land to "equal size and equal value" as Mr. Patel had insisted throughout.

20. I note that Mr. Justice Connors Orders were inter alia, for the whole of Certificate of Title No, 7736 to be divided into nine (9) equal lots and:

(x) Upon completion of subdivision and Valuation the said nine (9) lost are to be placed in common pool in a manner by mutual agreement or the most senior party herein having the first draw and the other parties to follow suit.

(xi) The drawing of the lots is to be supervised by the Deputy Registrar, High Court, Lautoka and such drawing of lots is to be done within thirty days of completion of subdivision/valuation.

(xii) Upon completion of the draw by each party herein there is to be a equality of exchange in value amongst the said nine (9) lots and the difference of payment if any is to be made within ninety days of confirmation of any such difference.

21. It appears from the above that all that the surveyor is required is to do is subdivide the land into "equal lots". Some differentiation in value is expected as is obvious from the provision in the consent orders for a subsequent process of "equality of exchange in value".

22. Mr. Patel’s interpretation of "equal lots" to read "equitable distribution in size and value", in my view, is something that can be aspired to but only in so far as is practicable. Ideally, the details of how this can be done in so far as is practicable is something that the parties could themselves meet and agree on and then issue specific survey instructions accordingly which the Court can then endorse. In my view, that would not derogate from the spirit of the consent orders recorded by Mr. Justice Connors.

23. Mr. Patel appeared to be very concerned about whether Mr. Whippy is able to carry out the work on rather meagre budget. He had expressed the same concern with regards to Brij Lal. Mr. Patel is incessant that a fresh tender be called to ensure an independent surveyor and valuer is called. He submitted that would be in accordance with the Orders of Connors J.

24. I can only reiterate here Master Udit sentiments which I totally agree having observed first hand the conduct of the parties in this case. The issue is the personal differences of the parties rather than the competence of the surveyors.

INITIAL SURVEY WORK CARRIED OUT BY PROSURVIS

25. I had in fact ruled that Pro Survis & Development Consultants be appointed Surveyor to carry out initial survey work on the subdivision of CT 7736 and to draw up a Draft Scheme Plan to be available for the inspection of all parties on 16th October 2009 and that the Deputy Registrar was to authorise a cheque payment in the sum of $3,796.87 to ProSurvis & Development Consultants. The purpose of circulating that Draft was to enable parties to comment on it and make suggestions for change/variation to the Surveyor.

26. That work was in fact carried out by Mr. Whippy which resulted in a Draft Scheme Plan being circulated in October for the comments of the parties.

27. When the matter was called before me on 20th October 2009 to see if parties had any comments on the Draft, it became clear that all the other parties were agreeable to it.

28. Mr. Patel however advised the Court that the Draft Scheme Plan had been furnished to his client who needed time for his client to discuss the Draft Scheme Plan with his surveyor. Mr. Patel highlighted that the contours of the land are not clearly shown on the Draft Scheme Plan. These need to be done as they affect the value of the land. Also, he said the Draft does not accurately reflect the spread of sitting tenants which also affect the value of the land. In some lots, the sitting tenants are not shown. These go to value of the lots affected and also to fair distribution.

29. I must record at this point that all the other defendants are agreeable to the choice of ProSurvis and also to his Draft Scheme Plan.

30. Although Mr. Patel’s client may appear to be uncooperative and difficult, he does raise issues that merit careful consideration.

31. However, I do not think the solution to the problem lies in calling for a fresh tender. I believe the solution lies in making sure that whichever firm of surveyors is appointed is closely monitored and that his work is subjected to interim reviews by the parties.

INDEPENDENT SURVEYOR AND VALUER

32. I did comment at some stage in Court on the first day when this case was called before me that in my view, a Surveyor’s job is indeed very transparent by its very nature.

33. In the circumstances of this case, it is hard to see how any Surveyor that is engaged could be anything but transparent if the first thing he has to do is produce a draft survey plan for the comment of all and especially considering the cumbersome process that will follow (if agreed to by all parties) of obtaining the necessary various regulatory approvals.

34. There is nothing inconspicuous or subtle about a Surveyor’s work. He begins work only when the survey instructions are given to him and any plan he produces is "displayed" for the scrutiny of all.

35. The only conceivable way by which a Surveyor’s independence might be questioned in the circumstances of this case was if he was to be involved also in allocating the lots – which will never happen in this lifetime!

36. It was precisely for the above reasons that I saw no problem with ordering ProSurvis to carry out the first step of the work with a view to ordering them later to carry it out to registration once parties have commented on his Draft.

37. Now that they have carried out that first step and made a Draft Survey Plan available to all parties, I see no reason to change surveyor now or to call for a fresh tender.

38. Mr. Patel, in Court yesterday, advised that his client was not able to secure an independent surveyor at his own costs to review Mr. Whippy’s Draft Scheme Plan. He says his client is not going to engage a surveyor to review Mr. Whippy’s Draft Scheme Plan. He instead asks for a fresh tender to be called.

39. Again, I see no reason to call for a fresh tender now. I believe the way forward in this case is to press on with Mr. Whippy but to allow him some time to consider the concerns of Mr. Patel’s client. He could then simply make another draft for the comments of all parties.

40. I must say that at one stage, Mr. Patel’s client did request to have a private audience with Mr. Whippy prior to Mr. Whippy drawing up the Draft Survey Plan. The other parties did not understand why the meeting had to be private but they agreed anyway hoping it would facilitate a breakthrough. But Mr. Patel’s client could not attend the scheduled meeting.

41. In reaching the decision not to call for fresh tenders, I was influenced by the following:

(i) I see no conceivable risk of Mr. Whippy or ProSurvis being biased in this case for reasons I have discussed above.

(ii) I share Master Udit’s sentiments that the problem in this case is the strife between the parties, rather than the competence of the Surveyors

(iii) calling for fresh tender will only be taxing on the estate

(iv) there is no guarantee that the parties will be able to agree on selecting a Surveyor from the pool of tenders – as history has shown

(v) the majority in this case are in favour of pressing on.

(vi) ProSurvis is committed to carrying on the same work within the same budget as was to apply for Brij Lal.

PAYMENT TO BRIJ LAL

42. For the record, I was to understand from the Registry that a cheque to the amount of $3,796.87 had been drawn up in December 2008 to be paid to Brij Lal as 25% payment for the first part of the work as per Udit M’s Orders. The Cheque was sent from Suva and kept at Lautoka Registry but was later returned to Suva sometime in early 2009 when it became stale.

ORDERS

43. I make the following Orders:

(a) ProSurvis & Associates is hereby appointed as surveyors in accordance with and for the purposes of carrying to completion the initial work they have done and in executing the Order of His Lordship Mr. Justice Connors sealed on 13th July 2007

(b) Mr. Michael Whippy, a registered surveyor of ProSurvis is to undertake the survey in accordance with the Order of His Lordship Mr. Justice Connors.

(c) Mr. Whippy is to be paid the sum of $16,000-00 plus 12.5% value Added Tax – less the sum of $3,796.87 already paid to him.

(d) The scheme of work and schedule of payment is as follows:

- Any remaining field work to be done is to be completed within a period of 4 – 6 weeks. Parties are encouraged to comment on the Draft already circulated by ProSurvis.

- Plan draughting and preparation of seven sets of Application to Subdivide for the consideration and approval of the Director of Town and Country Planning and the Ba Rural Local Authority is to take another two or three weeks

- The Director of Town and Country Planning may take two to three months to approve the proposal. This proposal is always subject to final survey.

- The time lapse above is to be used to draw the survey plans (which could be a 4-6 sheets to cover the total areas). Opportunity is to be given to discuss Proposal plan with all interested parties and incorporate any changes. This will be once only opportunity; further changes will result in price variation. The Surveyor is to coordinate with all the parties on this.

- Survey plan will be amended and may involve further field work to incorporate any approval conditions stipulated by the Director of Town and Country Planning – two weeks.

- Survey plan will be submitted to the Titles Office/Lands Department for final checks and approval – may take from 4 – 6 weeks. Final plans will show nine lots of equal area with access from existing Kings Road

- Price quoted in the tender exclude VAT and are Professional charges only. Payment for work will be as follows:

25% deposit – is already paid.

Further 25% on completion of all field work

Further 25% on completion of all calculations and preparation/presentation of survey plans

Final 25% on approval of survey plans by the Lands Department.

(e) A sum of $16,000-00 from Account No. 2310443 ANZ Bank at Lautoka, which funds are held pursuant to paragraph 3 of his Lordship Mr. Justice Connors’ Order, has already been paid by way of a bank cheque to the High Court. Out of this sum, a first payment of $3,796.87 has already been paid to ProSurvis in October 2009 in respect of the first work they have carried out. The balance shall remain deposited for the purposes of payment to ProSurvis & Associates.

(f) The Deputy Registrar of Lautoka High Court is to authorize payments as set out in paragraph (d) above. Payments are only to be made upon the Deputy Registrar being satisfied by documentary evidence as to the completion of each corresponding stage or the subdivision process.

(g) The surveyor is to complete the entire survey process in conformity with His Lordship’s Order within 6 months effective from 1/12/2008.

(h) Parties are at liberty to apply.

44. Once the subdivision and valuation is completed, the Deputy Registrar is then to liaise with the parties pertaining to the drawing of the lots and also the process of "equality of exchange in value amongst the said nine (9) lots" as ordered by Mr. Justice Connors.

45. For the record, on the request of Mr. Patel, these orders are suspended for seven (7) days and will take effect from the 15th day of December 2009.

Anare Tuilevuka
Master

08th December 2009
At Lautoka