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Goda v Century Properties Ltd [2010] FJHC 406; HBC212.2006L (4 August 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION


Civil Action No: HBC 212 of 2006L


BETWEEN:


EVA VON GODA
1st Plaintiff


AND:


HOWARD GILBERT DON
2nd Plaintiff


AND:


CENTURY PROPERTIES LIMITED
1st Defendant


AND:


CUVU BAY DEVELOPMENTS LIMITED
2nd Defendant
(Nominal Defendant)


AND:


THE REGISTRAR OF TITLES
3rd Defendant
(Nominal Defendant)


AND:


THE ATTORNEY GENERAL OF FIJI
4th Defendant
(Nominal Defendant)


FINAL JUDGMENT


Judgment of: Inoke J.


Counsel Appearing: Mr. R Gordon for the Plaintiffs
Mr. G P Lala for the 1st & 2nd Defendants
Mr. S Turaga for the 3rd & 4th Defendants


Solicitors: Messrs Gordon & Co. for the Plaintiffs
G. P. Lala & Ass. for the 1st & 2nd Defendants
AG's Chambers for the 3rd & 4th Defendants


Date of Hearing: 13 April 2010
Date of Judgment: 4 August 2010


INTRODUCTION


[1] This action was commenced by Originating Summons in July 2006. The First Plaintiff ("Ms von Goda") claims certain orders based on moneys which she said she gave towards the purchase of land in Cuvu by the First Defendant ("Century"). The Second Plaintiff ("Howard") claims his commission as an agent in the sale of the land from Century to the Second Defendant ("Cuvu Bay").

[2] At the commencement of the hearing, the claims against the Third and Fourth Defendants were withdrawn by consent. Only the actions against the Century and Cuvu Bay remained. Their defence was that Ms von Goda did not advance any moneys as alleged by her and, as against Howard, they say the arrangement for the payment of his commission was a matter between him and Ms von Goda.

[3] The evidence is by affidavits filed by and on behalf of the parties supplemented by the oral evidence of the deponents at the hearing.

CASE HISTORY


[4] The Originating Summons was filed on 24 July 2006 together with Ms von Goda's and Howard's affidavits in support. Also filed on the same day was an ex-parte summons for interim orders which Finnigan J granted allowing caveat number 544580 lodged by Ms von Goda against the land in question (the "Cuvu property") to remain in force until 11 August 2006 when the application was to be first called. On 11 August, by consent, the caveat was extended until further order. Century filed its affidavits in reply on 8 September 2006. Cuvu Bay did not file any affidavit in reply. The Plaintiffs did not file their affidavits in response until 15 July 2007. From August 2006, the matter was called on five more occasions, each time at the request of the parties that settlement was being pursued. On 5 March 2007, by consent, Phillips J ordered that the caveat "be uplifted, withdrawn and removed" and the entire proceeds of sale of the Cuvu property from Century to Cuvu Bay be deposited into the foreign currency USD Trust Account of the solicitors for Century out of which USD$372,000 was to be held in the solicitor's trust account until final determination of these claims. The matter was adjourned to 23 March 2007. Between that date and 12 March 2009, the matter was called 5 more times before the judge and 10 more times before the then Master because the parties were not ready to proceed with the hearing for one reason or another. It eventually came before Master Tuilevuka on16 September 2009 who adjourned it to me on 1 December 2009 to set a date of hearing. I set the date of hearing for 13 and 14 April 2010. The Originating Summons was heard on 13 April 2010.

THE ORIGINATING SUMMONS


[5] The Originating Summons sought 13 orders with the usual any such further or other relief as the 14th. Some of those orders have been abandoned as they are no longer being pursued, including orders against Cuvu Bay. The only substantive relief now left is whether the Plaintiffs have shown their entitlement to a share of the sale proceeds and the commission, respectively, and for the moneys held in the solicitor's trust account to be released to them.

THE HEARING


[6] As I have said, the evidence in this case consisted of the affidavits and oral evidence given at the hearing.

The Application for Adjournment


[7] On the morning of the hearing, counsel for Century sought an adjournment on the grounds that the two directors of the company were in New Zealand and could not attend the trial because they had "visa problems". He was not very specific as to what type of visa problems they were. He also submitted that his client was being severely prejudiced because the directors were not here to give oral evidence. I pointed it out to him that he could cross examine the Plaintiffs and one of the directors had already filed two affidavits which formed part of the evidence.

[8] The application was opposed by the Plaintiffs, both of whom including their counsel, had come from Australia to specifically attend the hearing. Century is local company so its directors should be resident here in Fiji. The amount held in the solicitors trust account since March 2007 was a substantial amount.

[9] I indicated to counsel for the Defendant that in these circumstances I was not minded to grant his application and offered him a short adjournment for him to consider his clients' position. Counsel did not want the adjournment so I ordered that the hearing proceed.

PW1


[10] Ms von Goda gave evidence. She confirmed that the affidavit she signed on 21 July 2006 and filed in this Court on 24 July 2006 was hers and its contents were accurate. She was relying on its contents as her evidence.

[11] Counsel for Century did not want to cross examine her.

PW2


[12] Mr Howard Dorn, the Second Plaintiff, also gave evidence. He also confirmed that the affidavit he signed on 21 July 2006 and filed in this Court on 24 July 2006 was his and its contents were accurate and adopted them as his evidence in this action. He also adopted his second affidavit in response to the First Defendant's affidavit which he signed on 25 July 2007 and filed herein on 15 August 2007.

[13] Counsel for Century objected to the second affidavit on the basis that it was signed in Brisbane, Australia before a solicitor rather than a notary officer. The witness however confirmed that the solicitor was a notary officer. I allowed the affidavit into evidence and gave counsel the right to cross examine Mr Dorn. Counsel did not want to cross examine the witness.

PW3


[14] The third witness for the Plaintiff was Mr Michael Benefield. He signed an affidavit on 11 May 2007 which was filed in this Court on 12 June 2007. He confirmed that its contents are accurate and adopted them as his evidence. He and the other persons involved in this case were friends. He said the principal actor was a Charles John Williams and his wife, Marjorie Williams. Mr Williams was a very persuasive man. He was very vigorous in trying to carry out what he did. Mr Benefield said he later pulled out of the business association with the others.

[15] In cross examination, he said he was one of the directors of Century at the invitation of one Dennis Biggs. He denied that he removed himself as a director because his appointment was illegal. He said he was appointed principally because he knew the parties involved. He was not a shareholder. He resigned voluntarily as a director.

[16] At the end of the Plaintiffs' case counsel for the Defendant informed me that he was not in a position to call any witnesses and sought time for him to file written submissions. In any event he could rely on the affidavit evidence filed by his client.

SUBMISSIONS


[17] At the end of the hearing, I allowed both parties time to file their written submissions within the ensuing 21 days and I was to give my judgment on notice. The Plaintiffs filed their submissions in time on 20 April 2010 but the Defendants did not file theirs till much later on 5 May 2010. The Plaintiffs replied on 14 May 2010 and protested heavily, not only at the lateness of the submissions, but also at its content. I must say that the standard of the Defendants' submission fell far short of what is expected in the High Court and does not assist me greatly in the writing of this judgment.

THE AFFIDAVIT MATERIAL


The Plaintiffs' Affidavits


[18] Ms von Goda's affidavit filed on 24 July 2006 sets out the background to this dispute, the factual matrix as her counsel wrote in his submissions. This is what she said:
  1. That I had been visiting Fiji since 1973 and made many acquaintances there.
  2. That in or about mid 1989 Brian George King transferred his half interest in all that house and land situated at 235 Princess Road Suva and more fully described and contained in Certificate of Title Number 24997 to me (hereinafter referred to as "my said house"). That annexed hereto and marked as "EVG1" is a copy of the said Certificate of Title Number 24997. The actual transfer took place on 6th February 1990 but I took possession before that date. That annexed hereto and marked as "EVG2" is a copy of the solicitor's bill dated 13th July 1989 evidencing the earlier transaction.
  3. That in or about later 1989 or early 1990 I visited Naigani Island Resort (hereinafter referred to as "Naigani Island Resort"). My purpose of visiting Naigani Island Resort was that it was advertised for sale under receivership in the newspapers and Brian George King and I were interested in purchasing it. That is where and when I first met one CHARLES JOHN WILLIAMS a businessman of Suva (hereinafter referred to as "Williams). It was represented to me by Williams that he owned Naigani Island Resort. I am not aware whether he owned it personally or through a limited liability company in which he may or may not have had shares. I visited Naigani Island Resort frequently thereafter. I became good and close friends with Williams and his wife Marjorie Doris Williams (hereinafter referred to as "Marge").
  4. That on one of my visits to Naigani Island Resort I met one AMINIASI KATONIVUALIKU a solicitor of Suva (hereinafter referred to as "Katonivualiku") who was there on one of his annual fishing trips. I was introduced to Katonivualiku by Williams and Marge. Katonivualiku was a good friend and/or acquaintance and/or business partners of/with Williams and/or Marge.
  5. That Naigani Island Resort was eventually taken over by one JIM AH-KOY who I was told by Williams was the brother of Williams.
  6. That thereafter Williams and Marge moved to Nadi and were operating a backpackers operation called Coconut Inn in Vunavou Lane, Nadi. I visited them there often.
  7. That thereafter I continued and maintained my friendship and relationship with Williams, Marge and Katonivualiku. Katonivualiku and I also often met in Suva.
  8. That Williams, Marge and Katonivualiku all knew about my said house in Suva. We often had dinners together. On one occasion Katonivualiku stopped over and visited me at my home on the Gold Coast on his way back from a conference in China. On my next trip to Fiji after that he picked me up from Nadi Airport.
  9. That thereafter I had a relationship with Katonivualiku. We never married. We lived in one household together. He never contributed for/to the purchase of my said house or its upkeep or maintenance. He never contributed to/for anything else.
  10. That at all material times Katonivualiku was the Public Trustee and/or the Administrator General and/or the Registrar of Companies. That annexed hereto and marked as "EVG3" is a copy of the business card that Katonivualiku gave me.
  11. That in his capacity as/of Public Trustee and/or the Administrator General and/or the Registrar of Companies Katonivualiku was aware of and had knowledge of the receivership and/or liquidation and/or receiving order and/or bankruptcy of INTERNATIONAL PACIFIC HOTELS LIMITED and/or ALAN RICHARD GILBERT who were the owners of all that land described as Lot 6 on D.P. No. 2876 "Narewa" (part of) comprised in Certificate of Title Number 11622 and Lots 1, 2, 5 & 6 on D.P. 5861 "Narewa" (art of) comprised in Certificate of Title Number 23542 (hereinafter referred to as "the said Cuvu Property"). That annexed hereto and marked as "EVG4" and "EVG5" is a copy of the said certificates of title.
  12. That Katonivualiku had told me that the said Cuvu Property was in the care and charge of the Public Trustee's Office for more than fifteen years and that is how he was/became aware of it.
  13. That at all material times Katonivualiku and Williams were good and close friends and acquaintances and business associates. From my relationship with Katonivualiku and from my association and friendship with Williams and Marge I formed the distinct impression that Williams had a very strong influence and/or hold over Katonivualiku.
  14. That sometime in 1994 one day whilst Williams and I were driving back from Nadi to Suva Williams took me to see the said Cuvu Property. Williams told me that he was aware that the said Cuvu Property was in the care and/or charge of the Public Trustee and that he was interested in acquiring it and that he specifically said to me that he, myself and Katonivualiku can make a lot of money from it.
  15. That the next weekend Williams organized a picnic at the said Cuvu Property with two other lawyers Michael Benefield and Peter Howard and some other foreign investors such as Chris Bjoerck and others.
  16. That Katonivualiku and Williams then agreed to jointly purchase the said Cuvu Property on mortgagee sale and then to either obtain development finance to develop a resort on it or to sell it to a developer or hotelier and make some profit on it either way.
  17. That Katonivualiku and Williams did not have any and/or all the money required to purchase the said Cuvu Property. In fact Katonivualiku himself did not have any money at all to contribute for/towards the purchase price for the said Cuvu Property. In fact Katonivualiku was in dire financial straits at that time. He told me that he already owed $30,000.00 to some person from previous business dealing and if he did not pay this sum the Fiji Law Society was going to disbar him. Katonivualiku needed to raise and/or borrow money to contribute to/as his share for the purchase of the said Cuvu Property.
  18. That since Katonivualiku did not have the money and/or any money at all to contribute for his share of the purchase price for the said Cuvu Property Katonivualiku and Williams approached me to loan them a sum of money for part of the purchase price for the said Cuvu Property.
  19. That at first I was very reluctant to do this. I was at that time aged 57 years having been born on 13th March 1937. I was not willing to bring more money from Australia as I told them that I had never come to Fiji to make money. I was not interested in investing money in Fiji.
  20. That eventually after a lot of constant pestering and pressuring Williams and Katonivualiku coerced and/or bullied and/or pressured me into agreeing to advance them money as part of the purchase price to purchase the said Cuvu Property.
  21. That Williams told me that if I did not help them Katonivualiku would be in trouble and be disbarred.
  22. That I did not give my own personal cash funds to Williams and/or Katonivualiku. At the request, suggestion and directions of Williams and/or Katonivualiku I agreed to put up my said house up as security by way of a mortgage over the same to secure a loan of $130,000.00 from COLONIAL MUTUAL LIFE ASSURANCE SOCIETY LIMITED (hereinafter referred to as "Colonial") to Katonivualiku.
  23. That at all material times my said house was free of any mortgages or any debt and was valued at approximately $270,000.00. My said house comprised of a three bedroom residence and three income producing flats.
  24. That the money that was loaned/advanced by Colonial to Katonivualiku secured by a mortgage over my said house was used to pay for part of the purchase price for the purchase of the said Cuvu Property. That annexed hereto and marked as "EVG6" is a copy of a letter from Michael Benefield dated 2nd August 2004 to my son Les Guttman in which Michael Benefield states that he has with him copies of documents that confirm that the sum of $130,000.00 that was loaned/advanced by Colonial to Katonivualiku secured by a mortgage over my said house was used to pay for part of the purchase price for the purchase of the said Cuvu Property namely copy of receipt of payments from Colonial to Sherani & Co. who acted as solicitors for the transfer of the said Cuvu Property and copy of payment advice from Colonial stating the payment was made to Westpac as part payment for the mortgagee sale of the said Cuvu Property as Westpac did the mortgagee sale.
  25. That Williams and/or Katonivualiku told me that I would get all my money back within six months and the mortgage would be discharged and I would also get 50% of the ownership/shareholding of the said Cuvu Property.
  26. That Williams and/or Katonivualiku took care of all the paper work for the mortgage of my said house. That annexed hereto and marked as "EVG7" is a copy of the said mortgage. Peter Howard who was a lawyer and also a very good friend of Katonivualiku prepared and registered the said mortgage.
  27. That Williams and Katonivualiku assured and guaranteed to me that Williams and Katonivualiku would take care of the mortgage repayments (which were ridiculously high) as I did not have a regular income.
  28. That Williams and Katonivualiku also assured and guaranteed to me that once the said Cuvu Property was sold the balance of any loan/mortgage remaining on/against my said house would be settled in full and I would get a share of the profits of the sale as well. Williams and Katonivualiku assured and guaranteed and represented to me that I would have and/or was supposed to have a 50% shareholding with Williams. Williams said he had other investors as well.
  29. That for a little while Williams and Katonivualiku did take care of the mortgage repayments but after a couple of months I found out that people were inspecting my said house with a view to selling it because the mortgage payments were not being made/paid. I was never aware that my said house was being advertised for mortgagee sale.
  30. That I was horrified because my financial credibility was spotless and immaculate all my life. So I started withdrawing money from my Australian bank account and covered the mortgage repayments.
  31. That at all material times Katonivualiku was a shareholder and/or the majority shareholder and/or had a controlling interest in COCONUT CONNECTIONS THREE LIMITED a limited liability company having its registered office at Suva, Fiji. Coconut Connections Three Limited was incorporated on 26th March 1992.
  32. That at all material times Williams was a shareholder and/or the majority shareholder and/or had a controlling interest in VANUA REALTY LIMITED a limited liability company having its registered office at Suva, Fiji and GEAN INVESTMENTS LIMITED a limited liability company having its registered office at Suva, Fiji.
  33. That at all material times Coconut Connections Three Limited and Vanua Realty Limited and Gean Investments Limited were shareholders in the First Defendant CENTURY PROPERTIES LIMITED. Century Properties Limited was incorporated on 20th August 1993. That annexed hereto and marked as "EVG8" is a copy of a search of Century Properties Limited.
  34. That the said Cuvu Property was purchased by the First Defendant Century Properties Limited on 28th September 1994.
  35. That the mortgage over my said house was registered on 21st September 1994.
  36. That when the said Cuvu Property was purchased by the First Defendant Century Properties Limited on 28th September 1994 no mortgage was registered against the said Cuvu Property.
  37. That I later found out that my share in the said Cuvu Property was only 25% and not 50% as initially assured, guaranteed and represented to me by Williams and Katonivualiku. Katonivualiku told me that Williams was now only agreeing to Kato and I only having 25% share in the said Cuvu Property.
  38. That the big resort development plans of Williams never eventuated. Katonivualiku also needed to service his personal debts. I was forced to sell of 5% of my share in the said Cuvu Property for $30,000.00 which Katonivualiku needed desperately to clear his debts so that he would not get disbarred by the Fiji Law Society. As a result my share in the said Cuvu Property was reduced to 20%. The $30,000.00 was given to Kato and I by Williams in return for us relinquishing 5% share in the said Cuvu Property. The $30,000.00 was given to Parshotam & Co. as settlement of Katonivualiku's debts. Parshotam & Co. were at that time acting for the creditors of Katonivualiku. I verily believe that said 5% share that was relinquished by us was then transferred by Williams to Dennis Biggs for $1,200,000.00 of which Dennis Biggs only paid 10% namely $120,000.00.
  39. That I started having difficulty making the mortgage payments on my said house. Williams and Katonivualiku had long since stopped making any mortgage payments in respect of my said house. Williams refused to talk to me anymore. He refused to have any dealings with me. I could not get a hold of him at all. He avoided me. He was never available for me to talk to him about fulfilling his promise that he would make the mortgage payments. Finally things deteriorated so badly that in or about December 1995 I had no choice but to depart Fiji. My former husband had to pay for my plane ticket back to Australia as I couldn't even afford to purchase my own air ticket.
  40. That I put a tenant into one of the flats in my said house. He was an employee of Colonial. He was supposed to pay the rent towards the monthly mortgage payments and Katonivualiku was supposed to pay the rest as he had promised he would. However, the tenant did not pay any rent at all and coupled with the fact that Katonivualiku, despite his promises, did not make any mortgage payments no payments towards the mortgage were made at all. Through private sources I again found out that my said house was again on the market for sale pursuant to a mortgagee sale. I was never informed of this by Colonial. Colonial sent me a letter to my address at Tamavua where I no longer lived so I never received the notice. Colonial knew that I no longer lived in Fiji and lived in Australia. Colonial had my Australian address but did not send me the notices there. At that time a sum of $15,814.15 was owing to Colonial which was secured by the mortgage over my said house. That annexed hereto and marked as "EVG9" is a copy of a letter from Colonial to Katonivualiku and which was copied to me at my previous address in Fiji which I never got as I was not living in Fiji at the date of that said notice.
  41. That when I heard of the impending mortgagee sale I came over from Australia to prevent the said mortgagee sale. This was about October 1996.
  42. That I then engaged and employed a solicitor in Fiji by the name of Miles Johnson to protect my said house and prevent it from being sold on mortgagee sale. Miles Johnson did nothing to protect my interest in my said house.
  43. That in or about October 1997 I terminated Miles Johnson's instructions. That annexed hereto and marked as "EVG10" is a copy of the said termination letter.
  44. That my said house was sold by mortgagee sale for $170,000.00. That annexed hereto and marked as "EVG11" is a copy of a letter from Colonial to the Second Plaintiff stating how the funds were disbursed. In the end I got $8, 743.55 from Colonial as a surplus of proceeds from mortgagee sale.
  45. That I later found out that Williams had died in New Zealand in July 1999. His wife Marge kept in touch with me and always at all material times articulated to me and assured me many times that I would get my money from the sale of the said Cuvu Property.
  46. That thereafter I started working hard myself to market the sale of the said Cuvu Property in Australia and other overseas countries with all my contacts. I employed Paul Lewis a Real Estate Agent in Australia through the Second Plaintiff to market the said Cuvu Property and find a buyer for the same. The Second Plaintiff introduced me to Paul Lewis. Paul Lewis personally went to Fiji and met Marge Williams. Paul Lewis also met Dennis Biggs the other shareholder in Century Properties Limited. That annexed hereto and marked as "EVG12" is a copy of a letter from Paul Lewis to me dated 7th July 2006 confirming my dealings with him and my interest/share in the said Cuvu Property.
  47. That on 11th December 2001 Marge wrote to me stating that Katonivualiku had not filed annual returns for Coconut Connections Three Limited and that she had caused a letter to be written to the Registrar of Companies. That annexed hereto and marked as "EVG13" is a copy of those letters. Prior to that the Registrar of Companies had issued a warning to Coconut Connections Three Limited for failing to file returns. That annexed hereto and marked as "EVG14" is a copy of that letter.
  48. That at this time Kato was in prison.
  49. That despite the letters the Registrar of Companies struck off Coconut Connections Three Limited. That annexed hereto and marked as "EVG15" is a copy of that notice.
  50. That annexed hereto and marked as "EVG16" is a copy of a letter from Dennis Biggs to Paul Lewis confirming that Paul Lewis was working on securing a buyer for the said Cuvu Property on my instructions and request and directions.
  51. That I am informed by Paul Lewis that Marge Williams at all times expressed to him that I had contributed a significant amount of money towards the purchase price of the said Cuvu Property. Marge Williams gave Paul Lewis a hand written letter in which she guaranteed that I would be compensated for my loss, hardship and embarrassment because of her husband's dishonest dealings and she put in her will also. That annexed hereto and marked as "EVG17" is a copy of that said letter dated 24th February 2003 with its attachment.
  52. That Marge also told me before she died that she had asked one TERESA APTED to be the executor of her will. Marge didn't trust her son Kenny Williams or her daughter's partner Mark Presnell who had never contributed anything to this project, and is now dictating who should get the money from this deal.
  53. That annexed hereto and marked as "EVG18" is a copy of Marge's will.
  54. That annexed hereto and marked as "EVG19" is a copy of an undated letter from Kato stating and confirming my shares in the said Cuvu Property. It was given to me by Katonivualiku personally. It is undated and unsigned. By this time Katonivualiku was out of prison. I remember clearly that when he gave me this document he asked me for $2.00 to pay for a taxi as he had no money to pay for a taxi. I was so depressed at his state that I did not bother checking to see if the letter was signed or dated. That was the last time I saw Katonivualiku. Later on I realized the letter was not signed or dated. By the time I saw this which was much later Katonivualiku had passed away.
  55. That annexed hereto and marked as "EVG20" is a copy of an unsigned deed from Kato stating and confirming my shares in the said Cuvu Property. It is dated April 2003. I am informed by Michael Benefield that it was prepared by him at the request of Katonivualiku. However before Katonivualiku could sign it he passed away.
  56. That in 2004 I placed a caveat on the said Cuvu Property. That annexed hereto and marked as "EVG21" is a copy of the said caveat.
  57. That after placing the caveat I continued looking for buyers for the said Cuvu Property. After the deaths of Williams, Marge and Katonivualiku I was the only person actively seeking a purchaser for the said Cuvu Property. No other surviving shareholders or beneficiaries of the said Cuvu Property were interested in actively seeking a purchaser for the said Cuvu Property or doing anything else about the said Cuvu Property. I expended a lot of time, energy, effort, stress and money in looking for buyers for the said Cuvu Property. I did this because I had a share and/or interest in the said Cuvu Property and wanted to have the same sold and recoup and/or reimburse the loss of my said house as well as get my fair and just percentage of the profits of the sale as promised to me by Williams and Katonivualiku.
  58. That in or about October 2004 the Second Plaintiff who was also on my behalf and on my instructions looking for a buyer for the said Cuvu Property informed me that he had found someone who was interested in purchasing the said Cuvu Property. This person was Paul Lingard. Paul Lingard later declined to purchase the said Cuvu Property. Thereafter the Second Plaintiff in June 2005 found Paul Lewis to purchase the said Cuvu Property. Paul Lewis is currently purchasing the said Cuvu Property through his investment Company Cuvu Developments Limited the Third Defendant. That annexed hereto and marked as "EVG22" is a copy of the said sale and purchase agreement.
  59. That by letter dated 25th April 2006 G. P. Lala & Associates purporting to act for Century Properties Limited wrote to me asking me to forward my claim to them. That annexed hereto and marked as "EVG23" is a copy of the said letter.
  60. That after receiving the said letter I telephoned Mr. G. P. Lala and spoke to him personally. I knew G. P. Lal from long time before because he was a friend of Katonivualiku. On many occasions I had visited G. P. Lala's house with Katonivualiku to eat curries cooked by a one Lulu Buksh. G. P. Lala told me over the phone to come to Fiji and meet him and discuss the matter and my claim. I never went to Fiji.
  61. That after that the Second Plaintiff on my behalf wrote to G. P. Lala & Associates. That annexed hereto and marked as "EVG24" is a copy of the said letter.
  62. That on 17th May 2006 G. P. Lala & Associates again wrote to me. That annexed hereto and marked as "EVG25" is a copy of the said letter. In that letter G. P. Lala on behalf of Century Properties Limited offered to enter into a formally and legally binging agreement with me for a sum of USD$300,00.00 to be set aside from the sale proceeds in exchange for me withdrawing my caveats.

[19] Mr Dorn's evidence in his first affidavit was:
  1. That I have known the First Plaintiff Eva Von Goda since 1981.
  2. That I crave leave to refer to and incorporate herein the affidavit of the First Plaintiff Eva Von Goda sworn on 21st July 2006 and filed herein.
  3. That I have also known of Eva's interest and/or share in all that land described as Lot 6 on D.P. No. 2876 "Narewa" (part of) comprised in Certificate of Title Number 11622 and Lots 1, 2, 5 & 6 on D.P. 5861 "Narewa" (art of) comprised in Certificate of Title Number 23542 (hereinafter referred to as "the said Cuvu Property").
  4. That Eva had always asked me to find a buyer for the said Cuvu Property so that the same could be sold and her rightful shares given to her. She always told me that I would get 5% of the sale price as my commission.
  5. That in 1999 I introduced Eva to one Paul Lewis a licensed real estate agent. The purpose of my introduction was to get Paul Lewis to talk to Eva and get details about the said Cuvu Property so that he could market it with a view to finding a purchaser to purchase it. It was agreed between Paul Lewis and I that we would split the commission 50/50.
  6. That Paul Lewis introduced two potential buyers of/for the said Cuvu Property to Eva and Denis Biggs (the other shareholder and director of Century Properties Limited). They were Barry Kemp and Gary Palmer. However, none of these purchasers proceeded with the purchase of the said Cuvu Property.
  7. That my relationship with Paul Lewis (the real estate agent) ended at the end of January 2005 in respect of seeking buyers for the said Cuvu Property.
  8. That in October 2004 I met a Paul Lingard. He is a builder from the God Coast who now resides in Fiji. I informed Paul Lingard of the sale of the said Cuvu Property. He was interested. He went and saw the said Cuvu Property. He then requested a valuation which was later provided to him at the end of January 2005 by Michael Benefield. That annexed hereto and marked as "HGD1" is a copy of a letter from Michael Benefield confirming the same. That also annexed hereto and marked as "HGD2" is a copy of a memo from Michael Benefield to Sharon and Mark Presnell. Sharon is the daughter of Williams and Marge. Mark is her partner. Thereafter Paul Lingard declined to purchase the said Cuvu Property.
  9. That in June of 2005 I met Keith Douglas who expressed an interest to purchase the said Cuvu Property. In July 2005 Keith Douglas and his business partner Paul Lewis (not the real estate agent earlier referred to) flew to Fiji to inspect the said Cuvu Property and also met Michael Benefield and Denis Biggs. They were keen on purchasing the said Cuvu Property. That I had told them that the price for the said Cuvu Property was USD$2,200,000.00. After inspecting the said Cuvu Property and after obtaining engineers report they declined to purchase the said Cuvu Property for USD$2,200.00 as the buildings on the land were infested with cancer (building construction terminology).
  10. That later at the end of August or beginning of September 2005 I spoke to Paul Lewis again and he asked me that what figure would the shareholders accept to sell the said Cuvu Property. I then suggested a sum of USD$1,400,000.00. I then came back and discussed the said offer of USD$1,400,000.00 with the First Plaintiff Eva Von Goda. She agreed with that price. I then contacted Michael Benefield and informed him of this offer. Michael Benefield then spoke with Denis Biggs. Michael Benefield said Denis Biggs was not happy with this price. I explained to them all (Eva Von Goda, Michael Benefield and Denis Biggs) that the buildings on the said Cuvu Property was infested with cancer (building construction terminology) and as a result the sum of USD$1,400,000.00 was in my opinion a fair price for the said Cuvu Property.
  11. That thereafter Paul Lewis met with Denis Biggs, Michael Benefield and Teresa Apted who were all directors of Century Properties Limited.
  12. That thereafter a lot of discussions took place between myself, Paul Lewis, Denis Biggs, Michael Benefield and Teresa Apted and as a result Paul Lewis through his lawyers Koyas of Nadi and/or through his company Cuvu Bay Developments Limited made an offer of USD$1,400,000.00.
  13. That annexed hereto and marked as "HGD3" is a copy of a letter from Michael Benefield to Koyas, solicitors for Paul Lewis and Keith Douglas. Also annexed hereto and marked as "HGD4" is a copy of a letter from Koyas to Century Properties Limited confirming the offer to purchase the said Cuvu Property for USD$1,400,000.00 by Paul Lewis and Keith Douglas through their company Cuvu Bay Developments Limited.
  14. That annexed hereto and marked as "HGD5" is a copy of an email from Paul Lewis to Michael Benefield, myself and Dennis Biggs confirming the said purchase again by Paul Lewis and that I had introduced Paul Lewis to the said Cuvu Property as agent for Century Properties Limited.
  15. That in October 2005 Mark Presnell range me saying he was acting for Kenny Williams the son of Williams and Marge and also acting for Sharon Presnell the daughter of Williams and Marge. I told him of that offer of USD$1,400,000.00 from Paul Lewis. He said he would engage G P Lala to act for Century Properties Limited.
  16. That on 2nd December 2005 Mark Presnell wrote to me requesting me to advance/forward FJD$3,000.00 to G P Lala & Associates to pay for the costs or reinstating Coconut Connections Three Limited a shareholder of Century Properties Limited to the Register of Companies as it had been struck off the register. That annexed hereto and marked as "HGD6" is a copy of that letter.
  17. That I then arranged for FJD$2,515.80 to be sent to G P Lala. That annexed hereto and marked as "HGD7" is a copy of the overseas telegraphic transfer.
  18. That annexed hereto and marked as "HGD8" is a copy of a letter from Mark Presnell to Teresa Apted a director of Century Properties Limited and the sister of Williams. It confirms my commission of 5% payable to me.
  19. That annexed hereto and marked as "HGD9" is a copy of an email from Mark Presnell to me and copied to Kenny Williams, Sharon Presnell and G P Lala confirming and acknowledging that I found the buyer Paul Lewis.
  20. That annexed hereto and marked as "HGD10" is a copy of a letter from Mark and Sharon Presnell to Teresa Apted which was sent to me by Teresa Apted. It again confirms that my commission of 5% is payable.
  21. That annexed hereto and marked as "HGD11" is a copy of an acknowledgment signed by Denis Biggs the other director/shareholder of Century Properties Limited stating that Century Properties Limited has agreed to pay me 5% commission on the successful completion of the sale of the said Cuvu Property to Paul Lewis.

[20] Mr Benefield said in his affidavit filed on 12 June 2007 that he met Charles John Williams in the mid 1970's. Williams was involved with the Naigani Island Resort. It was through his frequent visits to the resort that he came to be friends with the Williams. Kato was a good and close friend of Williams. His distinct impression from his association with them was that Williams had a very strong influence and hold over Kato. It was Kato that told him that the Cuvu property had been in the hands of the public trustee for over 15 years. Kato became interested in the property because of the influence of Charles Williams who was of the firm belief that a lot of money could be made from acquiring the property and then on-selling it to another buyer. He was invited by Williams and Kato to join them in their quest to acquire the Cuvu property. The property was under mortgage to Westpac for $300,000. Kato on behalf of Williams, Marge, Kato, Eva and Benefield and his wife made an offer of that amount which was accepted so they needed to get the funds. Benefield and his wife could not afford their $100,000 contribution so they withdrew. Benefield recalls Williams telling him that he had or could raise $200,000 and needed Kato to raise the balance of $100,000. Williams and Kato then approached Colonial Mutual Life Assurance Society Limited ("CMLA") to assist with funding. He also knew that Kato approached Ms Goda to provide a third party mortgage over her house and land at 235 Princes Road, Suva to secure the sum of $100,000 for Kato's share of the purchase price. Ms Goda mentioned to him that she was not comfortable with giving a mortgage over her house but succumbed to the influence of Kato and Williams. Benefield came to know from Williams, Marge, Kato and Ms Goda that they purchased the Cuvu property from financing from CMLA secured by a mortgage over Ms Goda's property. Ms Goda left Fiji in late 1995 and continued with her efforts to sell the Cuvu property. In 2003 Benefield came to know that the property might be sold through her efforts. He further said:

24. That in 2004 Kato was alive and I was asked by Kato and Eva to assist them to get an acknowledgment from Kato that he had borrowed money using Eva's property at 235 Princess Road to secure the said loan to contribute his share of $100,000.00 to purchase the said Cuvu Property. Acting on their request I prepared a note on my consultancy letterhead as well as a Deed of Declaration and of Appointment to the effect that Kato agrees that Eva should receive from the sale of the said Cuvu Property 20% of the sale proceeds in consideration of her contribution to the acquisition of the said Cuvu Property by Kato and Williams. Kato told me that the $100,000.00 that he had contributed to purchase the said Cuvu Property (the purchase having being done through the First Defendant) was through a loan from the Colonial Life Assurance Society Limited which was secured by a mortgage over Eva's house and land at 235 Princess Road. However before Kato could sign it he passed away. I crave leave to refer to annexures marked as "EVG19" and "EVG20" annexed to the affidavit of Eva dated 21st July 2006 and confirm that those two documents were prepared by me on the instructions of Kato and also at the request of Eva.


25. That after Kato died I continued to be involved in the said Cuvu Property at the request of the Estate of Kato through his daughter Philippa. I attended several meetings with Dennis Biggs and Theresa Apted. Theresa Apted was the Trustee of the Williams Estate. Our meetings centred on getting the said Cuvu Property sold and for all those who had a share in the sale proceeds to be distributed their respective fair shares. Dennis Biggs had been in contact with a number of prospective buyers and agents and the agreed commission I was advised was 5% of the sale price, which was to my knowledge the standard real estate industry prevailing rate for commissions. I was also asked to source buyers and agents to sell the said Cuvu Property.


26. That at the end of January 2005 I provided a Paul Lingard a copy of the valuation for the said Cuvu Property. He was at that time interested in purchasing the said Cuvu Property. Howard introduced Paul Lingard to the said Cuvu Property. That I informed Howard that the directors of the First Defendant had agreed to pay a commission of 5% to the agent who secured a buyer. That I refer to annexure marked as "HGD1" to the affidavit of Howard Dorn dated 21st July 2006 and confirm that is a copy of a memo from me to Sharon and Mark Presnell. Sharon is the daughter of Williams and Marge. Mark is her partner. Thereafter Paul Lingard declined to purchase the said Cuvu Property.


27. That in June of 2005 Howard introduced Keith Douglas to the said Cuvu Property. In July 2005 Keith Douglas and his business partner Paul Lewis flew to Fiji to inspect the said Cuvu Property and also met Denis Biggs and me. They were keen on purchasing the said Cuvu Property.


28. That later at the end of August or beginning of September 2005 Howard contacted me informed me that Paul Lewis offered to purchase the said Cuvu Property for USD$1,400,000.00. I then spoke with Denis Biggs about this offer.


29. That thereafter Paul Lewis met with Denis Biggs, Teresa Apted and myself.


30. That thereafter a lot of discussions took place between Howard, Paul Lewis, Denis Biggs, myself and Teresa Apted and as a result Paul Lewis through his lawyers Koyas of Nadi and/or through his company Cuvu Bay Developments Limited made an offer of USD$1,400,000.00. At all times the real estate agent involved in this deal/offer was Howard and Denis Biggs and Theresa Apted had full knowledge of this.


[21] The two documents which Mr Benefield prepared on Kato's instructions (EVG19 and EVG20) and which were to be signed sometime in April 2003, showed that Kato agreed to give Eva 20% of the sale proceeds in consideration of her contribution the acquisition of the Cuvu property. According to the documents, the shareholding of Century was Coconut Connections Three Limited: 70,000, Denis Biggs: 52,500, Vanua Realty Limited: 140,000 and Gean Investments Limited: 87,500, all ordinary shares. The shareholding of Coconut Connections Three Limited was to be 50% Eva and 50% Kato.

The Defendant's Affidavits


[22] Dennis Biggs swore an affidavit on behalf of Century. He said his information came from his own personal knowledge and from the records and files held by the company's solicitors. He was one of the directors of the company. He disagreed that Ms Goda had an interest in the Cuvu property. He said Ms Goda's interest was in giving financial assistance to her de facto, Kato, for which she provided security by the mortgage over her Princes Road property. According to Biggs, the money was advanced to Kato only and not to Williams or Century. But he did say in his affidavit[1] that Kato would have used a portion of the $130,000 advance to lend to Century to assist in the purchase of the Cuvu property. He admits also that Kato paid $100,000 towards the purchase price and $30,000 was returned to him by Century. The property was purchased by Century on 28 September 1994. Vanua Realty Limited which held shares in Century transferred 15% of their shares in Century to him for FJD$180,000 only. According to Biggs the Companies Office records showed that the directors and shareholders of Coconut Connections Three Limited were Charles Williams and one other but not Kato or Marjorie.

[23] He also disagreed that Howard was entitled to a commission because he had no written authority from the directors/shareholders of Century to sell the Cuvu property. He said the agent authorised by the company was Paul Lewis. Interestingly, the letter which he annexed to his affidavit dated 5 April 2002 as evidence of his dealing with Paul Lewis, included a statement by him that "Eva's figure of USD$2.5m is unrealistic". He admits signing a memorandum between Century and Howard for an agency but later he found out that the directors/shareholders had not passed a resolution to validate it or executed under the company seal so it was null and void. The property was being sold to Cuvu Bay but was delayed because of the caveat.

FINDINGS OF FACT & LAW


[24] One of the points raised by the Defendants was that this action is statute barred. The defence was not pleaded. Counsel is clearly wrong because time does not run until the cause of action has arisen and not from the date of the bank loan. The cause of action does not arise until a demand is made of the First Defendant to pay the share of the proceeds or the commission and the First Defendant fails to do so. The Plaintiffs would then have 6 years from that date to commence proceedings. The sale and purchase agreement between Century and Cuvu Bay was not signed until 1 May 2006 and this action was commenced about 2 months later on 24 June 2006. The action was commenced well within time so this defence must fail.

The Second Plaintiff's Claim


[25] I will first deal with the Second Plaintiff's claim. I think the evidence is overwhelming that Howard was to be paid 5% of the sale price as commission and he did introduce the eventual buyer and is therefore entitled to his 5% commission. Counsel for the Defendants said in his submissions that the Cuvu property netted USD$1.5m. The commission is therefore USD$75,000.

The First Plaintiff's Claim


[26] Ms von Goda and Mr Benefield are the only two survivors who were personally involved in the initial purchase of the Cuvu properties and the dealings between Williams, Kato, the two Plaintiffs and their spouses and partners. Mr Biggs only entered the scene later, and it seems that he was part of the Williams funding arrangement. Moreover, the documentary evidence that Mr Biggs relied on was equivocal and I have referred above to one instance where the document favoured more Ms von Goda's than the company's case. No witnesses were called by the Defendants and counsel for the Defendants did not take advantage of the opportunity to cross examine the Plaintiffs' witnesses. For these reasons I prefer and accept the affidavit and oral evidence of the Plaintiffs' witnesses.

[27] I accept Mr Benefield's evidence that the initial persons to benefit from the purchase of the Cuvu property were he and his wife, Charles Williams and his wife, and Kato and Ms von Goda, that is to say, one third share per couple. Mr and Mrs Benefield dropped out of the picture and did not participate any further. Their one third shareholding was taken over by the Williams'. That is the conclusion that I draw from the evidence. Ms von Goda says that she was promised 50% but I do not accept that this was the initial intention of the parties. That promise was made much later on.

[28] The Williams through their companies provided their share of $200,000 towards the purchase price and Kato through the $130,000 from Ms von Goda made up the balance. The extra $30,000 was apparently for stamp duty and other costs.

[29] As to how Charles Williams and his wife obtained their funds was a matter for them and if they obtained assistance from others that only went to dilute their two thirds share in the Cuvu property. It seems to me that Dennis Biggs share came from the Williams'. That is evident from the shareholding that Kato had Benefield put in the unsigned documents of April 2003.

[30] Two facts which on the evidence are beyond dispute are, firstly, Ms von Goda provided $100,000 at least as one third of the purchase price for the Cuvu property and, secondly, she has an interest in the Cuvu land. The conduct of the parties and the documentary evidence clearly show it. The question is not whether she has an interest but rather how much. I have found that it was one third for her and Kato as a couple. Kato is now deceased. How much of that share is she entitled to now by law?

[31] Ms von Goda provided the full amount for the purchase of the one third share in the Cuvu property from the mortgage of her Princess Road house. Although, according to Benefield, she had some reservations about it, I do not think that it is sufficient to displace a finding that she provided the funds for that purpose and for her to acquire an interest in the purchase of the Cuvu property. Her subsequent attempts to secure a buyer also support such a finding.

[32] Counsel for Ms von Goda referred me to the High Court of Australia decision in Calverley v Green [1984] HCA 81; (1984) 155 CLR 242; 59 ALJR 111; 56 ALR 483 (6 December 1984). Counsel cited several passages but I think I need only refer to the judgment of Gibbs CJ where His Honour explained the law as follows:

3. Where a person purchases property in the name of another, or in the name of himself and another jointly, the question whether the other person, who provided none of the purchase money, acquires a beneficial interest in the property depends on the intention of the purchaser. However, in such a case, unless there is such a relationship between the purchaser and the other person as gives rise to a presumption of advancement, i.e., a presumption that the purchaser intended to give the other a beneficial interest, it is presumed that the purchaser did not intend the other person to take beneficially. In the absence of evidence to rebut that presumption, there arises a resulting trust in favour of the purchaser. Similarly, if the purchase money is provided by two or more persons jointly, and the property is put into the name of one only, there is, in the absence of any such relationship, presumed to be a resulting trust in favour of the other or others. For the presumption to apply the money must have been provided by the purchaser in his character as such - not, for example, as a loan.


[33] Was there a presumption of advancement in this case? I do not think so. The evidence fell short of showing that Ms von Goda intended to give a beneficial interest to Kato absolutely. Also, it seems to me that Kato was more interested in obtaining $30,000 from her rather than in an interest in the Cuvu property. There are two reasons for my saying so. He was on the verge of being struck off and as well he must have been fully aware of his responsibilities as the "vendor" Public Trustee and could not be seen as being or actually involved in the transaction as a buyer because of conflict.

[34] Counsel also submitted that the share was held by Ms von Goda and Kato jointly, so that on Kato's death, she became the sole owner of the share absolutely. I think such an inference can be drawn from the evidence. They were in a de facto relationship and over a period of a few years only.

[35] I therefore find that Ms von Goda is entitled to a one third share in the sale proceeds of the Cuvu property. The sale price was USD$1.5m so she is entitled to USD$500,000.

[36] I note from the terms of the consent order of 5 March 2006 that only USD$372,000 was retained in the trust account of the solicitors for he company. Those monies must be released forthwith to the Plaintiffs. I leave it up to them as to how they apportion their shares out of those monies to satisfy their respective claims for now. The balance is to be sought from Century Properties Limited.

INTEREST


[37] I make no order as to interest because at the end of the day it is the Plaintiffs that must push their case for early hearing and they are not entirely free of fault for the delays in this case.

COSTS


[38] Similarly, I make no order as to costs for the same reason.

ORDERS


[39] The Orders are therefore as follows:
  1. Judgment is entered for the First Plaintiff against the First Defendant in the sum of USD$500,000.
  2. Judgment is entered for the Second Plaintiff against the First Defendant in the sum of USD$75,000.
  3. The sum of USD$372,000 currently retained in the trust account of G P Lala & Associates, the solicitors for the First Defendant, is to be released forthwith to the solicitors for the Plaintiffs in Fiji or as directed by the said solicitors as partial satisfaction of the above judgments.
  4. I make no order as to interest or costs.

Sosefo Inoke
Judge

[1] Para 8 of his affidavit filed on 8 September 2006.

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