Anuj v Narayan [2011] FJHC 784; HBC286.2010 (2 December 2011)

IN THE HIGH COURT OF FIJI
(AT SUVA)

Civil Action No. HBC 286 of 2010

BETWEEN:

ROHINI LATA ANUJ of Makoi, 8 Miles.
PLAINTIFF

AND:

SHIRI NARAYAN of 8340, 145 A Street, Surrey BC, V 35, ON 7, Canada.
DEFENDANT

Appearances: Mr Shelvin Singh for the plaintiff
Mr I. Samad for the defendant
Date of Hearing: 22nd November, 2011

JUDGMENT

1. This short cause arose in this way. The husband of Rohini Lata Anup had taken out an insurance policy with Colonial Life and Health making her the sole beneficiary. After his death, Colonial Life and Health had paid her a sum of $144,154.72. She had deposited the monies in a term deposit in a joint account with the defendant (the brother of her deceased husband) in the Bank of South Pacific.
   

The primary facts are not disputed. The procedure adopted by way of originating summons was not contested.

In the forefront of the argument of counsel for the defendant was that Rohini Lata Anup had agreed to place these monies in a joint account as a saving for her children's education and their future expenses, as set out in the defendant's affidavit in reply. I find nothing to indicate that the joint account was opened for the contended purpose.

The material circumstance is this: the money deposited is admittedly that of Rohini Lata Anup. Accordingly, I hold the monies belong to her beneficially. By the same token, I hold she is entitled to operate the account with her signature only.

In his submissions, counsel for the plaintiff has stated that the presumption of advancement is not applicable to unmarried couples. The case of Stoeckert v Geddes, [2004]UKPC 54, is referred to. Here the Privy Council held that monies in a joint account belongs to the contributor, until the other party exercises the right to draw upon it .The contributor was entitled to terminate her right at any time.

McEnvoy v Belfast Banking Co Ltd, [1935 AC 24] provides a far closer analogy. The father of the plaintiff, a minor had transferred GBP 10,000 to a deposit receipt in his and his son's name, in order to avoid death duties. Lord Atkin took the view that the contract was made by the father for himself and if the son had ratified the act done on his behalf he would have made himself a party to the contract, but by his conduct he had represented to the Bank that he did not intend to ratify the act done on his behalf. Having so acted, he could not ratify it afterwards, and consequently he had never become a party to the contract. Lord Thankerton held the father alone contracted with the bank, which was justified in paying the father's executors.

2. I decline to grant the order sought that the defendant's name be removed from the account number, as this would be contrary to the mandate given by the parties to the Bank, which has not been made a party to these proceedings. Moreover, it falls into the realm of a disputed area, since the plaintiff in her affidavit in support has raised the plea of non est factum, in signing the application for the joint account in 2005. This is disputed by the defendant.
   
3. Orders

I make orders as follows that:

1. the plaintiff is the legal and beneficial owner of all funds deposited in Bank of South Pacific Term Deposit Account Number 458441-3.
   
2. the plaintiff is entitled to operate the Term Deposit Account Number 458441-3 with her signature only.
   

100. the plaintiff is entitled to costs summarily assessed at $ 1500 payable to her by the defendant.
     

A.L.B.Brito-Mutunayagam
Judge

2nd December, 2011