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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
PROBATE JURISDICTION
NO. 48456 OF 2009
In the Estate of Robert Emerson Amos late of 7 Williamson Road Suva in the Republic of Fiji, Businessman, Deceased, Testate
BETWEEN:
VERNON EMERSON AMOS and ANTHONY ROBERT AMOS
APPLICANTS
AND:
FIJI PUBLIC TRUSTEE CORPORATION LIMITED
RESPONDENT
Mr R Prakash with Ms P Kenilorea for the Applicants
Mr J Lagilagi for the Respondent
JUDGMENT
This is an application commenced by Notice of Motion dated 20 July 2009 seeking the following orders:
"1. That Caveat No. 39/08 lodged by Fiji Public Trustee Corporated Limited, the Respondent, on the Estate of Robert Emerson Amos on 25 November 2008 be dissolved and/or removed forthwith;
2. That the Letters of Administration (with Will) in the Estate of Robert Emerson Amos be granted to the Applicants Vernon Emerson Amos and Anthony Robert Amos;
3. [Indemnity costs].
An affidavit sworn by Jagdish Kumar on 17 July 2009 was filed in support of the Application.
The Fiji Public Trustee Corporation Limited (the Public Trustee) opposed the application and filed a Summons dated 2 November 2009 seeking the following orders:
A That [the Public Trustee] sell the subject property under the estate herein described and comprised of CT No. 2834 located at 148 – 152 Amy Street, Toorak, Suva;
B That the said property be sold at open market through tender processes;
C That the highest offer received shall be the sale price of the same;
D The Corporation [Public Trustee] shall pay whatever owed to Suva City Council and the Corporation by the estate such as debts, city rates, distribution fee, legal costs and expenses from the proceeds and pay the balance to the beneficiaries or their lawyers;
E That the Court may make such other orders as it thinks fit and just.
In support of its application and in opposition to the Applicants' Motion, the respondent filed an affidavit sworn on 17 September 2009 by Lenaitasi Korodrau.
The Applicants filed a reply affidavit sworn on 26 November 2009 by Vernon Emerson Amos.
The Application by Motion was made pursuant to section 47 of the Succession Probate and Administration Act Cap 65, Order 31 of the High Court Rules 1988, section 30 of the Fiji Public Trustee Corporation Act 2006 and the inherent jurisdiction of the Court.
The Motion was initially listed for mention before me on 28 August 2009. On that day directions were given to the parties for the filing of affidavit material and written submissions.
After some unnecessary delay, the applications were eventually listed for hearing on 15 June 2010. On that day Counsel indicated that they would rely on their written submissions and did not wish to make any additional oral submissions.
Robert Emerson Amos (the deceased) died on a day uncertain between 2 and 5 June 1985 at Kings Hotel in Suva. The death certificate shows that the cause of death was asphyxia. He was aged 65. His wife Prakash Wati Amos was subsequently convicted of his murder on 4 June 1986 in the High Court of Fiji. She was sentenced to life imprisonment.
The deceased died testate having made a will dated 26 February 1979 whilst domiciled in the United States. The will included the following provisions:
"First: I hereby declare that I am married and that the name of my wife is PRAKASH WATI AMOS. I have two adult children now living, by a former marriage, whose names and birth dates are:
EMERSON AMOS, born September 24, 1946; and THOMAS WATSON AMOS, born on October4, 1949.
I have two minor children by my beloved wife PRAKASH WATI AMOS who are:
VERNON EMERSON AMOS, born October 23, 1973; and ANTHONY ROBERT AMOS, born August 29, 1976.
I have no deceased children.
Fourth: I direct my Executor or Executrix to pay my just debts and expenses of my last illness, funeral and burial.
Fifth: I give all of my property, both real and personal, wherever situate to my beloved wife, PRAKASH WATI AMOS, provided that she survives me by at least one hundred and eighty (180) days, then I give all of my estate to my two minor children, VERNON EMERSON AMOS and ANTHONY ROBERT AMOS, then living, share and share alike, however, if any of them have predeceased me, but leave issue surviving, the share of my estate that would otherwise go to such deceased child shall instead go to the issue of the deceased child on the principle of representation.
Seventh: I hereby nominate and appoint PRAKSH WATI AMOS as Executrix of this my last will and testament. In the event PRAKASH WATI AMOS is unable to serve or does not desire to serve as Executrix for any reasons, then I nominate and appoint K. LAMBERT KIRK as the Executor of this my last will and testament. K. LAMBERT KIRK shall be allowed his fees as Executor together with the fees which may be allowed to him as Attorney for the Executor.
Ninth: I authorise my Executrix or Executor to sell, convey, partition, divide, subdivide, exchange, mortgage, and/or hypothecate with or without notice, at either public or private sale, and to lease or rent any property belonging to my estate, for any period of time within or extending beyond the period of service as Executrix or Executor of the estate subject only to such confirmation of court as may be required by law.
Eleventh: If any part of this will is held to be void, invalid, or inoperative, I direct that such voidness, invalidity, or inoperativeness shall not affect any other part of this will and that the remainder of this will shall be carried into effect as though such part had not been contained herein."
It was never disputed that the deceased's wife could not benefit from the estate because of her conviction.
Letters of Administration (with the Will annexed) were granted on 17 January 1986 to the Public Trustee but limited to the period of imprisonment of the deceased's wife.
Some years later the Public Trustee sought directions from the High Court in Action No. 11 of 2001 as to the further administration of the estate of the deceased. Orders were made and sealed on 14 September 2005. The Applicants appealed to the Fiji Court of Appeal. In the unreported decision of Vernon Emerson Amos and Anthony Robert Amos –v- The Public Trustee of Fiji and Others (Civil Appeal No. 90 of 2005 delivered on 28 July 2006) the Court of Appeal allowed their appeal. Paragraph 16 on page 8 of that decision sets out the orders of the Court. The following orders are relevant to the present proceedings:
"We make the following orders on the understanding that Mr Kirk will now apply for probate of the Will.
(1) The grant of letters of Administration number 21237 with the Will of the deceased annexed to the Public Trustee shall be continued until the grant of Probate or Administration is made to K Lambert Kirk.
(2) ....
(3) ....
(4) The Estate passes to the appellants under clause five of the Will.
(5) ....
In relation to the costs of that appeal, the Court noted that where all the parties (except the wife) had acted properly, solicitor and client costs should be paid out of the estate. If the costs could not be agreed they were to be taxed.
For reasons which are not relevant K Lambert Kirk did not apply for a grant of Probate of the deceased's will as the alternative executor. It appears that he had declined to do so.
As a result upon the application of the two Applicants in the present proceedings, the Master of the High Court made the following orders on 24 June 2008:
"(1) The Applicants Vernon Emerson Amos and Anthony Robert Amos are granted leave to apply for Letters of Administration(with Will) in the Estate of Robert Emerson Amos late of 7 Williamson Road, Suva, Businessman, deceased in place of K Lambert Kirk.
(2) Letters of Administration (with Will) in the Estate of Robert Emerson Amos, late of 7 Williamson Road, Suva, Businessman, deceased be granted to the Applicants Vernon Emerson Amos and Anthony Robert Amos in place of K Lambert Kirk."
Then on 25 November 2008 the Public Trustee filed in the High Court a caveat in the following terms:
"Let no grant be sealed in the estate of Robert Emerson Amos late of 7 Williamson Road, Suva, Businessman, Deceased who died on 15 June 1985 at Suva, Fiji without notice to Fiji Public Trustee Corporation Limited who initially was the Executor and Administrator pursuant to Probate No. 21327 until removed by Ex parte Court Order under Court Action No. HPP 24/08 dated 9 July 2008 – copy attached."
It would also appear that the Public Trustee lodged a caveat with the Registrar of Titles on CT 2834 being in respect of the deceased's property located at 148-152 Amy Street Suva.
It should be noted that at no stage has the Public Trustee taken any action in relation to the Orders made (ex parte) by the Master in June 2008.
The steps taken by the Public Trustee in filing and lodging caveats have been taken to secure payment of fees and expenses. The Respondent's position in this matter was first stated in a letter dated 31 October 2007 addressed to the Solicitors acting for the Applicants. The second paragraph is relevant for the present purposes:
"However we advise that the above estate owes us the sum of $43,042.92 as at 8.11.06 as fees and expenses incurred since 17.1.86 the appointment day of the administration to 8.11.06 when this calculation was made. Your client must however pay us the said sum before we could release the administration to him as ordered by the Court."
In a subsequent letter dated 1 October 2008 the Public Trustee stated that:
"However we are not disputing that your clients take over the estate but we merely ask our fee costs to be paid by your client before we agree with the release. Being the Administrator comes with costs because of the duties entrusted to it to keep the estate from being abused."
In the affidavit filed on behalf of the Public Trustee, the deponent states in paragraph 13.0 that:
"The Corporation is willing to surrender the Administration provided the sum of $52,196.31 plus legal costs is fully paid."
It is clear that this amount is disputed by the Applicants. The correspondence that forms part of the material before me also indicated that the Public Trustee had for some time wanted to sell the property in Amy Street Toorak, Suva in order to recover the amount owing for fees and expenses. The Applicants through their solicitors have at all times opposed such a course of action.
When the Public Trustee was granted Letters of Administration (with the Will annexed) on 17 January 1986 by the High Court it was because the named executors had not proved the will. The deceased's wife was unable to do so due to criminal proceedings for his murder and the alternative executor was resident in the United States. The grant was for the duration of the term of imprisonment of the deceased's wife. Since she was convicted and sentenced to life imprisonment, the grant to the Public Trustee continued until she was released. However upon her release and because of her conviction she could not benefit from or act as executor of the Estate. The task of the Public Trustee during this period may be summarised as the collection of assets, payment of debts and distribution to the beneficiaries of property in the estate of the deceased.
Between the date of the initial grant in 1986 and up till the time of the decision of the Court of Appeal in 2006 the Public Trustee appears to have been engaged in managing the estate in the sense that it collected income generated by estate assets and made payments including the payment of trading debts incurred by the deceased.
This arrangement persisted until the release of the deceased's wife in compliance with the grant made in January 1986. Up until that point the position of K Lambert Kirk was not a relevant consideration.
The proceedings commenced in 2001 in the High Court by the Public Trustee were prompted by the release from prison of the deceased's wife. The Court of Appeal decision in 2006 becomes the starting point for a consideration of the legal position of the parties.
Had K Lambert Kirk then accepted his appointment as executor and been granted probate or letters of administration (with Will annexed) then the outcome anticipated by the Court of Appeal would have been realised.
However, as noted earlier, he declined the appointment to administer the deceased's estate. In accordance with the Court of Appeal decision, that left the Public Trustee to continue as Administrator pursuant to grant number 21237 with the Will of the deceased annexed.
The orders made by the Master on 24 June 2008 effected a change in Administrators of the estate. The order is clear in that the Applicants were granted Letters of Administration (with Will) in the Estate of the deceased.
The orders made by the Master must be read with the earlier decision of the Court of Appeal and with the provisions of section 30 and 35 of the Act. The Master granted to the Applicants Letters of Administration (with Will) in place of K Lambert Kirk. Up until that time K Lambert Kirk was the named alternative executor of the deceased's will. The Court of Appeal had clearly accepted this position and until he applied for Probate the Public Trustee was granted Letters of Administration (with Will).
Section 30 of the Act provides for the granting of Administration with the will annexed as follows:
"Where a person dies leaving a Will ... and having appointed an executor who is not willing and competent to take probate, the Court may appoint an administrator of the estate of the deceased ... and such administration maybe limited as the Court thinks fit."
It is apparent that it was in accordance with this provision that the Public Trustee was granted limited Letters of Administration. The first limitation was up until the release of the deceased's wife from prison. The second limitation, imposed by the Court of Appeal, was until the executor K Lambert Kirk has been granted Probate or Administration.
When K Lambert Kirk declined to act as executor and apply for Probate or Administration, the Applicants applied to have him removed as executor pursuant to section 35 of the Act. That section, so far as is relevant, states:
"The Court may for any reason which appears to it to be sufficient, either upon the application of any person interested in the estate of any deceased person ... either before or after a grant of probate has been made:
(a) make an order removing any executor of the Will of such deceased person ... and
(b) by the same or any subsequent order appoint an administrator with the Will annexed of such estate
(c) ....
(d) ....."
The effect of the order is that the Applicants have now taken the place of K Lambert Kirk. The Court of Appeal decision, in order to give effect to its intended outcome, should be taken to mean that the initial grant of Letters of Administration to the Public Trustee continues until the grant of Probate or Administration is made to K Lambert Kirk or any other person or persons appointed by the Court pursuant to section 35 of the Act. It is apparent that neither the initial Grant in 1986 nor the orders of the Court of Appeal in 2006 intended that the Grant to the Public Trustee should be unlimited. On 24 June 2008 the Applicants were granted Letters (with Will annexed) and from that date the limited Grant to the Public Trustee came to an end.
As noted the Public Trustee has not commenced any proceedings seeking to have the Orders made on 24 June 2008 by the Master set aside.
Following the Grant of Letters of Administration (with Will) to the Applicants, the Public Trustee filed a caveat in the High Court. It was this caveat that prevented the sealing of the grant of Letters of Administration (with Will).
There are two provisions which allow a caveat to be filed prior to the sealing of a Grant of Letters of Administration (with Will annexed). They are section 46 of the Act and Rule 44 (1) of the Non-Contentious Probate Rules (the Rules) that are incorporated into the laws of Fiji by virtue of section 52 (2) of the Act. The procedure for removing a caveat filed under section 46 is set out in section 47 of the Act. The procedure for removing a caveat lodged under Rule 44 (1) is set out in other parts of Rule 44. In this regard it is appropriate to note the observation of the Court of Appeal, Fiji Islands in Rosy Reddy –v- Manchama Webb and Lawrence Webb (unreported Civil Appeal No. 14 of 1994 delivered on 11 November 1994) that:
"We note that the procedure for dealing with a caveat under the Rules is different from the removal of a caveat provided under section 47 of the Act. Under the Rules a caveat shall remain in force for six months (r 44 (4)). A caveat may also cease to have any effect if the caveator does not file an appearance or take out a summons for directions (r 44 (11)). Under these Rules, a caveat may cease to have any effect in this way without there being a need for resort to court proceedings. However, under the Act, section 47 provides that in every case where a caveat is lodged, an application may be made to the Court to remove the caveat."
As the application before me states, these proceeding have been commenced pursuant to section 47 of the Act.
However, initially, the Applicants attempted to have the caveat removed by using the procedure that is prescribed by the Rules. For the reasons that follow it is necessary to consider the effect of the Rules as they are of some significance in this case.
The effect of section 52 when read with section 3 of the Act is that the Non-Contentious Probate Rules that were incorporated were the laws that were in force in the United Kingdom as at 1 January 1967. In the Rosy Reddy decision (supra) the Court of Appeal determined that those rules were the Non-Contentious Probate Rules 1954 (UK).
One issue to be considered is how should the Court interpret and apply the words used in section 52 (2) that have incorporated the Non-contentious Probate Rules 1954 (UK) into the domestic law of Fiji. In other words does section 52 (2) mean that the Court continues to apply the 1954 Rules that were in effect as at 1 January 1967 or does the Court apply the 1954 Rules as amended from time to time up to the present. An ancillary issue arises if the 1954 Rules have been repealed and replaced since 1967.
The position is discussed in Statutory Interpretation in Australia (6th Edition D.C Pearce and R S Geddes) at paragraph 6.19.
"The common law presumption was that, in the absence of an indication that a reference to another piece of legislation was to be ambulatory, the reference was taken to be to the legislation in the form it took at the date the referring legislation was made. Any subsequent amendments to the legislation referred to would not be taken into account. (See Comm. For Government Transport (NSW) v Deacon (1957) 94 CLR 535 at 546). This was seldom the result that legislators desired and hence the formula was commonly found that a reference to other legislation was to be read as a reference to that legislation "as amended" or "as in force from time to time"."
It was a similar formula that was the subject of interpretation by Winter J in Peni Naduaniwai v The Commander, Republic of Fiji Military Forces (unreported Civil Action No. HBM 32 of 2004 delivered on 6 September 2004). In that case the incorporating provision was section 2 of the Republic of Fiji Military Forces Act Cap 81 which stated:
"Army Act means the Army Act, 1955 of the United Kingdom and includes all Acts amending, replacing or read in conjunction with the same and all rules, regulations and Articles of War made thereunder."
Winter J concluded that section 2 provided for the automatic inclusion into Fijian Domestic Law of amendments to the United Kingdom Army Acts 1995 as replaced or amended from time to time. The Fiji Court of Appeal in Barbados Mills and Others –v- The State (unreported Criminal Appeal Nos. 35, 43, 46 and 48 of 2004 delivered on 16 August 2005) approved the approach taken by Winter J in the Naduaniwai decision (supra).
However in this case, section 52 (2) does not contain any words that could be construed as a formula to achieve the same result.
Whilst the position in relation to an applied Act may be covered by section 9 of the Interpretation Act Cap 7 (as amended) the position in relation to regulations (or rules) is not dealt with. What the Court is concerned with in this case is a referential adoption of a set of rules. Even if section 9 of the Interpretation Act is not itself applicable to the Non-contentious Probate Rules, there is still a presumption at common law that legislation should be given an "updating" construction. As Beaumont J (dissenting) in Switzerland Insurance Australia Ltd –v- Moure Fisheries Pty Ltd [1997] FCA 231; (1997) 144 A.L.R 234 at page 246 observed:
"It is presumed that Parliament intends the court to apply to an on-going Act a construction that continuously "updates" its wording to allow for changes since the Act was initially framed. This means that in its application at any date, the language of this Act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law."
It should also be noted that Order 1 Rule 11 of the High Court Rules states:
"The Rules for the time being in force in Her Majesty's High Court of Justice in England, and the practice and procedure of that Court with respect of non-contentious probate business shall apply so far as they are applicable, with such modifications as may be necessary, to grants of probate and administration issued in common form from the Registry of the High Court."
This Rule, made pursuant to the power given to the Chief Justice under the High Court Act Cap 13 should be read with section 52 (2) of the Act. This provision is consistent with the common law presumption that referred legislation should be given "an updated" construction.
However, an additional problem then arises. Pursuant to the Non-Contentious Probate Rules 1987 that came into effect on 1 January 1988, the Non-Contentious Probate Rules 1954 and all amendments to those Rules were revoked. It is one thing to take on something which is simply an amendment to the existing Rules, but it is a different thing to adopt an ambulatory approach where an entirely new set of Rules have been adopted.
In my view, Rule 44 in both versions deals with the same subject matter, i.e. the procedure for lodging and removing a caveat. Although the new Rule may differ in some significant substantive respects, the concepts were essentially the same.
Each version had the objective of providing a procedure for the removal of a caveat lodged by a caveator. Under those circumstances I consider that the 1987 Rules should be regarded as amending the 1954 Rules.
I have expressed some comments on this matter because it appears that the affidavit filed on 25 June 2009 on behalf of the Applicants complied with Rule 44 (12) of the 1987 Rules which states:
If no appearance has been entered by the caveator or no summons has been issued by him under paragraph (6) of this rule, the person warning may at any time after eight days of service of the warning upon the caveator (inclusive of the day of service) file an affidavit ... as to such service and the caveat shall thereupon cease to have effect provided there is no pending summons under paragraph 6 of this rule."
The court file in this matter indicates that there was no such summons as is described in paragraph 6 filed with the Court.
As there appears to have been compliance with Rule 44 the caveat ceased to have effect upon the filing of the Applicants' affidavit of service.
I have been informed by the Registry that the staff were not aware of the application of the Non-Contentious Probate Rules. As a result when the Applicants had subsequently attempted to seal the Grant of Letters of Administration (with Will annexed) they had been refused because the caveat had not been removed. The Registry staff did not appreciate that, as a result of the documents filed by the Applicants under Rule 44 and in the absence of an appearance or a summons filed by the caveator, the caveat was removed with immediate effect. As the Court of Appeal noted in Reddys case (supra) the Rules provide for a process that does not require Court proceedings.
The Applicants were, as a result, compelled to seek removal of the caveat under section 47 (1). Therefore I shall now consider the application on that basis.
Under the Act, a caveat that has been filed pursuant to section 46 (1) remains in force until an order has been made under section 47 which is in the following terms:
"47 (1) In every case in which a caveat is lodged, the court may, upon application by the person applying for probate or administration, or for the sealing of any probate or letters of administration, as the case may be, remove the same
(2) Every such application shall be served on the caveator by delivering a copy of the same at the address mentioned in the caveat.
(3) Such application may be heard and order made upon affidavit or oral evidence, or as the Court may direct."
The Applicants seek removal of the caveat under section 47 (1). The section does not offer any guidance as to the grounds on which a caveat should be removed. In effect, section 47 gives the Court a discretion.
In the Reddy decision (supra) the Court of Appeal stated on this point that:
"In formulating the discretion of the Court in such an application, we are of the opinion that the Court may have regard to the practice set out in the Rules as a guide. This is not the same as applying the Rules. The relevant rule for consideration in this regard is r 44 (7). For the purpose of a warning, a caveator is required to give particulars of a contrary interest. We would adopt this and formulate that a caveator should establish a contrary interest to the person applying for the removal of a caveat."
On the question of what should be the nature of the contrary interest, the Court of Appeal in Reddy's case (supra) stated:
"Again in determining this issue, the Court may have regard to the nature of the contrary interest that is required to be particularised by the caveator under the Rules. Again the relevant rule in this regard is r 44 (7) which specifies that nature of the interest is to be "any contrary interest in the estate". We would adopt this and formulate that for the purposes of removing a caveat under section 47 of the Act, the caveator is required to establish a contrary interest in the estate of the deceased."
In the present case the interest of the Applicants in the estate of the deceased is that they are the only beneficiaries and are over 21 years old. They have also been granted Letters of Administration (with Will annexed) pursuant to orders made by the Master. The caveat is preventing the sealing of that grant.
What is the contrary interest of the Public Trustee in the estate of the deceased? Section 9 of the Act is the starting point. It provides, so far as is relevant to the present case that:
"9. Upon the grant of ... administration, all property of which a deceased person dies possessed, or entitled to, in Fiji shall, as from the death of such person, pass to and become vested in ... the administrator for all of the estate and interest of the deceased therein, in the manner following, that is to say:-
(a) in testacy ... in the administrator with the Will annexed; and
(b) ....."
The grant of Letters of Administration (with Will annexed) to the Public Trustee that was made in early 1986 was a grant limited in time. It was limited in the sense that it was a grant for the duration of the imprisonment of the deceased's wife. Therefore for that period the deceased's property passed to and was vested in the Public Trustee.
This provision must be read with section 12 of the Act which states:
"Subject as aforesaid, the real estate of every person who dies testate shall be held by the administrator with the Will annexed according to the dispositions of the Will of such deceased person."
The initial grant was continued by the Court of Appeal, also on a limited basis. This time the limitation was until Mr Kirk applied for Probate of the Will. Then the Court (per the Master) made orders granting Letters of Administration (with Will annexed) to the Applicants and replacing Mr Kirk as executor. At that point the grant to the Public Trustee ceased to have effect and section 9 of the Act operated in favour of the Applicants. As the Public Trustee was no longer the Administrator and was not a beneficiary under the Will, it no longer had an interest in the estate that was contrary to the interest of the Applicants.
For the reasons stated above, and since the caveat filed in the High Court Registry has been removed under Rule 44 (12), the Applicants are to be permitted to have their Grant sealed by the Registry of the Court.
It follows that the Public Trustee's application to be allowed to sell the property described in CT 2834 and located at 148 – 152 Amy Street Toorak, Suva must be dismissed. The Public Trustee has been divested of its interest in the property since its Grant of Letters had ceased as a result of the Master's Orders made in June 2008.
Its position is now one of creditor in respect of its fees and expenses that it is entitled to claim under statute. The quantum of the claim is disputed and in the absence of a compromise, will be the subject of separate proceedings.
Finally, I should comment briefly on the use of the Notice of Motion by the Applicants to commence these proceedings.
Order 5 Rule 5 of the High Court Rules states:
"Proceeding may be begun by originating motion or petition if, but only if, by these rules or by or under any Act the proceedings in question are required or authorised to be so begun."
The effect of Order 5 is that, in the absence of any such requirement or authorization, proceedings, such as the present case, where the principal question at issue involves the interpretation and application of legislation (i.e. written laws) and where there is unlikely to be any substantial dispute of fact, should be commenced by the use of the originating summons procedure.
I make the following orders:
W D Calanchini
JUDGE
28 July 2010
At Suva
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