Kumar v Nasinu Land Company Ltd [2016] FJHC 318; HBC302.2009 (22 April 2016)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION
Civil Action No. HBC 302 of 2009

BETWEEN :

RAJENDRA KUMAR of 5 Libnai Avenue, Manukau Heights, Auckland, New Zealand, Surviving Executor and Trustee of the Estate of Bansraj Deceased.
PLAINTIFF

AND :

NASINU LAND COMPANY LIMITED a limited liability company having its registered office at Suite 3 & 4, 53 Carnavon Street, Suva.
DEFENDANT

Counsel : Mr. M. Nand for the Plaintiff
Mr. V. Singh for the Defendant
Dates of Hearing : 23rd - 26th June, 2014
Date of Judgment : 22nd April, 2016

JUDGMENT

INTRODUCTION

1. The Plaintiff filed this action claiming specific performance of alleged sale and purchase agreement relating to Lot 35 of DP3291. No written agreement or memorandum relating to the transfer of the land in issue presented in evidence, but state that there was partial performance by the of payment of installments for the purchase price, in terms of a written agreement, (similar to D7) hence seeks specific performance. In the certificate of title the owner remained as the Defendant for more than 50 years. The Plaintiff claimed that there was a sale and purchase agreement. He was unsuccessful in locating it, as the alleged agreement was between his late father and the Defendant. The land was one of the lots out of more than 60 subdivided lots, belonged to the Defendant before the sale of the lots. The development of the land and subdivision and the purchase of the same by the buyers, happened during 1960-70 period. The purchases were subject to sale and purchase agreements (D7) which allowed the prospective buyers to pay the price in installments. This would have been a novel concept at that time, and evidence produced by the Defendant confirmed this installment payment by the buyers to an agent of the Defendant. The Defendant had let the Plaintiff and his predecessors to construct the dwelling house with the permission of the local authority during, since 1969. There was no evidence of any special relationship between the Plaintiff and the Defendant prior to subdivision or even after that and any transaction between the parties would have been at arm's length. The Defendant stated that the Plaintiff was a tenant, but had no time issued an eviction notice for non-payment of rent when the payments were not made for more than 10 years! In the amended statement of defence and counterclaim, filed days before the hearing, sought to evict the Plaintiff, without any notice for quit. There was no evidence of tenancy in any of the subdivided lots and that was clearly against the purpose and intention of the Defendant at the time of the sale of the developed lots. There was no evidence of any reason for such deviation from the purpose of the Defendant that was to sell the developed lots. While denying this counter claim, the Plaintiff claimed adverse possession. The claims contained in the statement of claim, were a declaration of a contract between the Plaintiff and Defendant to sell the land and, for a specific performance compelling the Defendant to issue title to the Plaintiff.
   

FACTS

2. The Plaintiff filed a writ of summons in this action on 17th September, 2009 seeking following orders

i. A Declaration that the following documents;

Receipt issued by the Defendant on 1st July 1971, statement issued by the Defendant to the deceased advising of the balance debt as at 31st December 1979 and inter alia the approval by Suva Rural Local Authority for permission to construct a dwelling on the said property situated at Lot 35 on DP 3291 on certificate of Title Number 1344 all constitute legally binding agreement for the sale of the said property by the Defendant as vendor on one part and the Deceased as the Purchaser on the other part;

ii. An order for specific performance of the said agreement for transfer of the said property situated at Lot 35 on DP 3291 on Certificate of Title Number 13440.

iii. An order that the Defendant execute all the legal documents required to give effect to the transfer of the said property.

iv. An injunction restraining the Defendant, his servants or agents from attempting to sell or from selling or from transferring or in any other way whatsoever or however dealing with the said property being certificate of Title Number 1344 until further order of this court.

v. Damages for breach of the contract on the part of the Defendant

vi. Costs

3. In the statement of defence filed on 2nd August, 2012 denied the fact of sale of the Lot 35 on DP 3291 and stated that the Defendant allowed the Plaintiff and the predecessors to remain on the property as licencee, and further stated that since the said licence was not revoked there was no attempt to evict them. The Defendant also sought striking out of the statement of claim. This was contained in the Copy Pleadings.
   
4. On 23rd September, 2014, the Defendant filed a motion seeking amendment to the statement of defence. At that time the trial was already fixed from 6th October, 2014 and the said amendment was allowed, with the consent of the parties.
   
5. The amended statement defence included a counter claim and the same was filed on 30th September.2014. In the said counter claim the Defendant is seeking transfer of the Lot 35 on DP 3291 at the present market value including the cost of the transfer borne by the Plaintiff or vacant possession of Lot 35.
   
6. In the defence to the counter claim the Plaintiff has rejected the offer to purchase at the current market value and had also claimed adverse possession as the Plaintiff and the predecessors lived in the said property for over 40 years.
   
7. At the pre trial conference following facts were admitted
   
   1. The Plaintiff was the son of the deceased Bansraj and surviving executor and trustee of the estate of Bansraj.
   2. The Defendant was a limited liability company having its registered office at Suite 3 and 4 CarnovanStreet, Suva and is responsible for land dealings.
   100. The Deceased and his family had been in occupation of the property described as Lot 35 on DP 3291 being CT 13440 which said property is registered under the Defendant's name.
   4. The Plaintiff and Decease have been paying town wages to Nasinu Town Council.
   5. The Suva Rural Local Authority and Town and Country Planning had approved an application for development permission on 5th December, 1969 on the said property.
   6. The Deceased erected a dwelling house on the property after approval from the said Suva rural local authority and town and CountryPlanning and had been occupying the same since on or about 1969 until his death.
   7. The Defendant had taken no steps to seek vacant possession of the property from the Deceased and or any of his beneficiaries, prior to this action.
   8. The Plaintiff through their solicitors, Messrs Nands Law, corresponded through four letters dated 22nd August,2008,15th September, 2008, 3rd February, 2009 and 7th August,2009 respectively. The receipt of the said letters was acknowledged by the solicitors for the Defendant, Messrs Parshotam & Co (as the firm then known)
   9. The Plaintiff in his capacity as executor and trustee of the Estate of Bansraj worte to the Defendant requesting a transfer of the said property under the Deceased's name advising the Defendant that all payments for the purchase of the property were cleared.
   10. The Defendant refused to execute a transfer of the said property to the Plaintiff because the Defendant alleges that he said property was never sold to the Plaintiff.
   11. The Plaintiff during his administration of the estate only managed to discover receipt no 2218 in the sum of $20 and statement issued by the Defendant for the balance outstanding as at 31st December 1979.
       
8. The Plaintiff he gave evidence and said that his father late Bans Raj purchased this Lot 35 of DP 3291 in CT 3213. According to him he and his brothers continued to pay the installments and even the initial deposit. The Plaintiff's father late Bans Raj died on the 8th December, 1980 and the probate for his estate was obtained by Bijendra Kumar and the Plaintiff. Even after death of the father the siblings continued to pay the installments.
   
9. According to the Plaintiff they had paid all the installments for the transfer of the title to the estate of the late Bans Raj, but the Defendant was refusing to transfer the title.
10. Apart from the Plaintiff, an official from the local authority that approved the building on the property in 1969 also gave evidence on the said application and the approval which was marked as P3. The witness said that there would have been a transfer document attached to the said application, but she was unable to locate the original of the said application as it was nearly 40 old. The Plaintiff was not relying on oral agreement for specific performance.
    
11. For the Defendant Mr. Prasad who was a Director of the Defendant gave evidence and marked as D1, 64 of the sale and purchase agreements relating to the subdivision in the said development. According to him the only lot 35, the land in issue in this action had no sale and purchase agreement in their possession.
    

ANALYSIS

12. The Plaintiff gave evidence and stated that the said Lot 35 on DP 3291 was purchased by his father late Bans Raj and the price for the said land was paid through installments for a long period of time. He could not produce all the receipts, for this failure there were several reasons given. For the proof of the payments he produced three receipts marked as 'P6', 'P7' and 'P8'. All the receipts indicate the lot number for the land in issue. The both 'P6' and 'P7' were issued by the Defendant or its agent using the receipts of the Defendant, and in evidence this was admitted by the Defendant's only witness. The said receipts were issued in 1971 and 1983. In the 1971 receipt the purpose of the payment was not stated but in receipt issued in 1983 the purpose was stated as 'installment' indicating that at least as late as in, 1983 the payments were made regarding an installment payment for Lot 35. This put Defendant's contention that the payments were informal rent as improbable or unsubstantiated on the analysis of the evidence on the balance of probability.
    
13. The document marked 'P8' was not issued by the Defendant. This was disclosed to the Defendant even before the institution of this action. According to the evidence this was issued by G. Lal and Co, a body of chartered accountants. The payment of installments was done to this company according to the evidence of the Plaintiff. The Defendant denied this position.
    
14. The Defendant filed 'sale and purchase agreements' for 64 lots of the said subdivision. The Defendant's witness said all the lots in the said subdivision were sold and only Plaintiff's land was not sold. There was no reason given for not selling this Lot 35 when all the adjoining lots were sold. This would have been a substantial development in 1969 and it would be nearly impossible to miss one lot (Lot 35) out of 60-70 lots. The position taken by the Defendant's witness was that it was forgotten by them. This was negated by installment payments in 1983 ('P7').
    
15. According to the Defendant's evidence all the lots in the said subdivision were sold, except the Lot 35. There was no reason to let Plaintiff to build a dwelling on the land as far back in 1969 if it was not sold to the Plaintiff's father, late Bans Raj. The fact that Plaintiff could not produce the sale and purchase agreement should not deprive them of their rights to the said property as there was evidence of part performance of alleged contract by both parties. The Plaintiff was able to obtain possession and also to build a house with the approval of local government authority and also continued payment of the installments while the Defendant or its agent accepted installment payments regarding Lot 35.
    
16. The Plaintiff' s father late Bans Raj had initially obtained permission from the local government authority to build a dwelling house on the said property and upon the receipt of the approval a house was built and he had come to the possession with his family . Late Bans Raj and his family continued payment of the installments for the Lot 35 from 1969. There was no evidence of any eviction notice or any breach of contract by the Defendant. All the lots in the said subdivision had standard sale and purchase agreement, except for the clause relating to charge of interest and method of payment of installments.
    
17. The Defendant filed 64 sale and purchase agreements as D1 and one of the said agreement regarding Lot 55, was numbered No 24972 and it was made on 2nd September,1969. This title had annexed a letter from G. Lal and Co. Chartered Accountants dated 7th February, 1975 and it reads as follows;
    

'This is to advise that the abovenamed has paid in full all outstanding balance on Lot 55 D.P. 3291.'

18. This indicate that though the lots in the subdivision were sold in 1969 the payments were received by G. Lal and Co from the prospective buyers even after 6 years, in 1975 and the confirmation of the payments were received from G. Lal and Co. before the execution of the deeds at that time. The Plaintiff in evidence said some of the installments were paid to said G.Lal and Co at that time. There was no evidence of the prospective purchaser of Lot 55, being registered when the initial payment was paid.
    
19. So the Plaintiff's evidence that payments were paid to G. Lal and Co can be accepted on the balance of probability as it was corroborated by the Defendant's evidence of D1. The document marked D8 which indicated the outstanding balance as at 31st December, 1979 can be accepted as correct position. There was no reason to reject this evidence. According to the said statement even interest was added to the outstanding balance. This account statement was regarding the Lot 35 of 'Nasinu Land Co Ltd' and this was the land in issue in this action. The payment of the installments continued even after 1979 and 'P7' was issued in 1983. 'P6', 'P7' and 'P8' all indicated Lot 35, and payments were made in the name of late Bans Raj, even after the demise of the person indicating that prospective purchaser was considered as late Bans Raj, by all parties.
    
20. The Plaintiff was unable to state when they paid in full. If there was any outstanding balance it should have been revealed by the Defendant. The Defendant's witness did not state that the full amount was not paid, instead he said the payments were for rent, which in my judgment cannot be accepted on the analysis of the evidence.
    
21. It was rather strange that Defendant was unable to present any accounts as to the payments of the installments regarding the land in issue. The Defendant was a company that dealt with land sales and there was no evidence of them collecting rent at any time for a single subdivision. According to Defendant's evidence they had developed the land and subdivided it to about 60-70 lots in said land development in 1960s and all the said subdivisions were sold. If so why there was an exception to Lot 35 was a question that needed to be answered by the Defendant.
    
22. One of the Directors of the Defendant, named Mr. Vijay Kumar was alive at the time of the hearing and opted not to give evidence. The witness for the Defendant admitted that he had discussions with said Vijay Kumar regarding this Lot 35 and Vijay Kumar had dealt with 'P8' as far back in 2007, even prior to the institution of this action. So, the evidence about the Lot 35 which were not corroborated by documentary evidence given in evidence was mostly hearsay.
    
23. The Defendant was able to produce 64 of sale and purchase agreements relating 64 lots and the Plaintiff's lot was the only one that Defendant did not produce such sale and purchase agreement or any other document to indicate how late Bans Raj and his family came in to possession and built a dwelling and possessed the said land continuously while paying installment payments to the Defendant as well as to G. Lal and Co (P8). The allegation that the payments were rentals for the land was not a position that the Defendant had taken in this matter prior to the institution of the action.
    
24. These sale and purchase agreements were kept in the possession of the Defendant long time after transfer of the said lots, but no other evidence of collection of the said payments or disbursement of the said lots were produced. These were unbound sale and purchase agreements and knowing that the Plaintiff did not have a copy the Defendant could easily opted not to producing such a sale and purchase agreement even if that was available. It should also be noted that no contemporaneous recording of the books of accounts regarding the collection of the installments or initial payments were produced regarding the installment payments regarding the said 64 lots for which sale and purchase agreements were produced as evidence, and there were no proof of receipt of the same by the Defendant, though it had admitted full settlement of the sale price with interest for the said 64 lots. (D '1')
    
25. Without such records how could Defendant say for certain that the payment of 'installments' were for rentals? There was no evidence that prior to this action the Plaintiff and his predecessors were tenants. If they were tenants what was the rental and how often they had to pay and to whom they had to pay needed to elicit in evidence. At the same time why the Defendant allowed a permanent construction with the approval of the local authority to a tenant was not explained. In my judgment the payments contained in 'P6', 'P7' were not rentals but payments of the installments for the sale price of the Lot 5 and the 'P8' was the account balance of the same as at 31st December, 1979.
    
26. From the 64 sale and purchase agreements ('D1') it was evident the prospective buyers paid the purchase price in installments. All had a printed format except for the description of lot number and manner in which installments were paid according to the price of each lot. They also contained the following clause
    

'1(c). Upon the Vendor tendering a registrable transfer to the purchaser the purchaser shall give a first registered mortgage for balance purchase price and interest thereon as aforesaid at the expense of the purchaser in all things and the said mortgage shall contain a covenant for payment of the aforesaid installments together with such other covenants and agreements as are usually inserted in similar mortgages by the Vendor's Solicitor.'

27. The Defendant was unable able to produce the mortgages of the 64 lots. Only the sale and purchase agreements were produced and did not produce any document relating to the land in issue. From the evidence produced at the hearing it is safe to deduce that no mortgages were entered in terms of the above clause. From the evidence produced by the Defendant it seemed that the Defendant had not entered separate mortgages for the land during the installment payments and the payments were done while the title remained with the Defendant without registration of sale and purchase agreement.
    
28. The Plaintiff's father had come to the land after the subdivision and had obtained approval for a house in 1969. This application also mentions the interest in the land as a 'prospective purchaser'. So the position of the Defendant that the Plaintiff's predecessors had come to the land as tenants cannot be accepted on the balance of probability. If they are tenants how could they obtain permission to build a house in 1969 and remained on the property without any evidence of payment of rentals was not explained by the Defendant.
    
29. It was also safe to deduce that there were no mortgages relating to the said 64 lots which were paid in installments, though the sale and purchase agreement stated so. This would have been same for Lot 35 as well. This was also evidenced from the abovementioned sale and purchase agreement relating to Lot 55 where the prospective purchaser had taken about 6 years to complete the payments, but there was no mortgage relating to the said Lot 55 and the payments were received by G. Lal and Co and the confirmation of the full settlement was from the said entity.
    
30. If the land in issue (Lot 35) was not sold why it was not sold and rented and also stopped collecting any rent was not explained. The Defendant's witness stated that they were unaware of the position of this land in issue and they believed that it was sold. Though the latter can be accepted, they cannot be unaware of Lot 35 for such a long time, considering small number of subdivided lots.
    
31. The Defendant for 5 decades considered this land that was sold and accepted installments for the sale price as late as 1983 and even after that. Till the Plaintiff asked for the title there was no request from the Defendant for the alleged rentals or for vacation of the said land.
    
32. The Defendant's witness said this land was rented to the Plaintiff. If so there should be a rental agreement. If it was rented why they allowed a permanent construction of a building with the approval of the local authority was not explained. If a licensee or tenant wanted to put up a structure that would not be a permanent structure where permission of local authority would be sought as far back in 1969 in the said locality. This was the analysis of the evidence would indicate some permanent occupation and this was also evidenced in the said application marked 'P3' where the applicant, late Bans Raj, had applied for permission of the dwelling as 'prospective purchaser'.
    
33. A tenant or licencee would not act in this manner, and it was highly unlikely that the Defendant, being a commercial entity would allow a tenant to sit on their developed property as a tenant and also construct a building with the approval of the local authority and also forget about it for nearly 40 years till the Plaintiff's inquiry for the title.
    
34. All the subdivided lots were sold and in such a scenario the last lots could be sold at a higher price or much easier when the developments were completed in 1970-1980s. If Lot 35 was not sold by way of a sale and purchase agreement similar to the said documents marked 'D1', it could not remain in the possession of late Bans Raj and his family, as it could have been easily sold to a higher price than other lots. This is also corroborated by the present valuation for the said land produced at the hearing.
    
35. Mr. Prasad, who was the only witness for the Defendant, admitted in his evidence that if there was only one piece of land remained in a subdivision where all other lots were sold, it cannot be forgotten as it could easily be sold at a higher price than price of a similar lot sold at that time. This was a commercial reality, so how Lot 35 was missed out of 60-70 lots subdivision needed more elaboration. In the analysis of evidence Defendant's witness adopted the path of least resistance.
    
36. The Plaintiff being a commercial entity engaged only in the land sales would under normal circumstances would grab such an opportunity to obtain the maximum profit for the entity by selling the remaining lot at much higher price and would not wait till the occupant to ask for the title after 40 years to assert its title to the said land. Even now the Defendant submitted a current valuation of over $80,000 for the said Lot 35(see 'D2'). It was highly unlikely that the Defendant would forget such a valuable property for all this time till the Plaintiff asked for its title.
    
37. Mr. Prasad also said that when the Defendant Company changed hands, to the present owners Lot 35 was not considered as unsold. This again would have been a moment where the Defendant's assets and liabilities would have considered before any change of hand of the Defendant to the present owners. If there were any unsold lands that would have been identified, but Lot 35 was not considered as unsold land belonging to the Defendant at that time.
    
38. Mr. Prasad stated that he was unaware of the status of the transactions that happened in 1969. He was able to produce more than 64 sale and purchase agreements, relating to the relevant subdivisions, but strangely refrained from producing any evidence of payments relating to the purchases for 'D7'.
    
39. There was evidence that G. Lal and Co being acting as agents for the receipt of the money and this was evidenced from the sale and purchase agreement bundle marked as D1 where there was a letter regarding the Lot 55. If the Defendant carefully examined their own evidence there was evidence of payments to G. Lal and Co by the prospective buyers at that time and this substantiate the Plaintiff's evidence and especially P8, which indicate the outstanding amount for Lot 35 at that time.
    
40. So, the Defendant was aware of the G. Lal and Co acting as agents for them in the process of collecting the installments from the prospective buyers even after entering in to sale and purchase agreements, without executing any mortgage instruments in terms of said agreements ('D1'). This show that the Defendant also had acted as financier for the prospective buyers
    
41. If the said sale and purchase agreements were available the payments relating to such agreements should be available and if not a special reason should be stated. If the sale and purchase agreements relating to 64 lots were available why the Defendant was not in possession of any records relating to alleged unsold Lot 35 was not explained. Even collection of 'rentals' for Lot 35,were not produced.
    
42. The land lots rerating to sale and purchase agreements produced in court were already transferred to respective purchasers, yet the sale and purchase agreements were retained by the Plaintiff. The Defendant accepts that payments were made for Lot 35 in DP3291. The Defendant's contention was that those were ground rentals.
    
43. There was no dispute that on or around 1969 a house was constructed on the said land with the authority of the local government body. In such an instance on the balance of probability, if the payments made by the Plaintiff were relating to rentals there should be documentary proof to that evidence. The oral evidence of Mr. Prasad cannot be accepted that said payments were for rentals. The payments were accepted as 'installments' and P8 does not indicate any rentals.
    
44. The Plaintiff produced P8 which was allegedly produced by G. Lal & Co. This was disclosed to the Defendant in 2007 even prior to institution of this action and had ample time to verify to authenticity of the said document from the Defendant's records. There was no evidence of Defendant suggesting the payments as rentals. The witness for the Defendant also admitted sending receipt of the payments relating to Lot 35 as late as 1983.
    
45. Mr. Prasad, who was a Director of the Defendant, admitted that there were no permanent staff for the Plaintiff company at the moment, but he stated there would have been some staff at the time of the sale of the subdivisions as it was a substantial land development at that time. He also said by 1980s there was no office of the Defendant to accept the installment payments.
    
46. The Plaintiff's evidence was that they have sometime paid the installments of the purchase price to G. Lal & Co. and they issued the receipts for such payments in the name of the Defendant as they had the receipt books of the Defendant. Plaintiff proved on balance of probability that the prospective buyers of the lots of the subdivision of land in issue, had made payments to the G. Lal & Co., including the Plaintiff and or his predecessors. The Plaintiff was unable to present evidence the full settlement of the sum in terms of the agreement between the parties to the sale of the said Lot 35.
    
47. 'P8' prove on balance of probability that there was a balance of $489.65 relating to payment for the Lot 35and the payments continued after this as evidenced from 'P7'.
    
48. It is also highly improbable for the vendor to wait more than 40 years without instituting any action if they are tenants as there is no proof of payments of rents by the Defendant.
    
49. According to the evidence of Mr. Prasad even as late as 2007 the shareholders of the Defendant had discussed the transfer of the title to the Plaintiff. The document marked P10 was an email dated 26th March, 2009 which stated 'that we have no problem transferring provide he give us documents and proof of ownership and all information requested from him.' This was 6 months prior to institution of this action and all efforts were taken to obtain transfer of Lot 35 during this time. In the circumstances the Fiji Court of Appeal decision Narayan v Shah (1975) 21 FLR 139 cannot be applied. In my judgment the Plaintiff was not guilty of laches and undue delay.
    

50. Fiji Court of Appeal in Nandan v Datt [1984] FJCA 1; Abu0029.82 (decided on 21 April 1984) (unreported) held that doctrine of performance of an agreement applies in Fiji . For this conclusion Court of Appeal considered similarity between UK and New Zealand provisions, analogous to Section 59 of the Indemnity Guarantee and Bailment Act (Cap 232). (See Steadman v Steadman 1976 A.C. 536, Boutique Balmoral Ltd v Retail Holdings Ltd 1976 NZLR 222)

51. In Nandan v Datt [1984] FJCA 1; Abu0029.82 (decided on 21 April 1984) (unreported) further held, that apart from fraud, or from errors of misdescription which can be rectified, the registered proprietor holds the title immune from attack by all the world, but claims in personam will not be affected by indefeasibility. (see Frazer v Walker 1967 1 A.C 569)
    
52. In Regent v Millet (1976) HCA 40 (1976) 133 CLR 679 in an Appeal from Supreme Court of New South Wales (decided 6th August, 1976) held in the absence of written contract part performance of oral contract was sufficient for specific performance and following acts were considered as part performances
    
    1. Possession of the land.
    2. The repairing of the fixtures.
    3. Mortgage payments.
    4. Renovation of the property
       
53. In Francis v Fransis [1951] VicLawRp 48; [1952] VLR 321(decided on 11.11.1951) in Supreme Court of Victoria (full court O'Bryan, Sholl and Smith JJ) held that part performance of oral agreement was sufficient for specific performance if it was unequivocal, considering the circumstances of the case, but applying the facts of that case, did not grant specific performance.
    
54. In Francis (supra) at page 324 held(per O'Bryan J) held
    

'The acts of deliver and acceptance of the title do not then in themselves suggest a contract for the sale of or for the disposition of any interest in the land, and they receive no cloour from the payment of money by the plaintiff to his sister at some earlier date. Now the law is clear that acts of part performance to be sufficient to overcome the absence of writing must be such as not only are referable to a contract such as that alleged, but are referable to no other title.

The acts relied upon as part performance must be unequivocally, and in their own natue, referable to some such agreement as that alleged.[Madison v Alderson (1883), 8 App. Cas 467, at p.479, per Lord Selborne]

It is, in general, of the essence of such an act that the Court shall, by reason of the act itself, without knowing whether there was an agreement or not, find the parties unequivocally in a position different from that which, according to their legal rights they would be in if there were no contract...But an act which, though in truth done in pursuance of a contract, admits of explanation without supposing a contract, is not in general, admitted to constitute an act of part-performance taking the case out of the statue of Frauds; as for example, the payment of a sum of money alleged to be purchase money.

Dale v Hamilton [1846] EngR 1212; (1846), 5 Hare 369, at p.381.

This principle is far too well established to call for long citation of authorities, and I content myself with one further reference, viz., Mc Bride v Sandland(1918), [1918] HCA 32; 25 C.L.R. 69 at p. 78. Both sides in this case relied Cooney v Burnes [1922] HCA 8; (1922),30 CLR 216. '

55. Smith J, in Francis v Fransis [1951] VicLawRp 48; [1952] VLR 321(decided on 11.11.1951) at p 339 held,

'A delivery of possession necessarily involves an acceptance of delivery, which is an act on the part of the person receiving possession....'

Further at p340

'As the starting point for this further examination it is convenient to take the statement by Lord Selbone in Maddison v Alderson(supra), at p 479, that The acts relied upon as part performance must be unequivocally, and in their own nature, referable to some such agreement as that alleged

This proposition involves, I consider, that the enquiry into the sufficiency of any act alleged to amount to part performance must be made in two stages. At the first stage it is necessary to exclude from consideration that evidence of the alleged parol agreement between the parties and to look at the act relied upon in the list of the surrounding circumstances as revealed by the rest of the evidence: ...... The act cannot amount to sufficient part performance unless, when so considered, it points plainly, and not merely in an equivocal fashion, to the existence of an agreement alleged belongs. .....'

56. After discussing the remaining requirements of doctrine of part performance, Smith J in Francis (supra) held, p 340
    
    1. That the act relied upon must be a part execution of the substance of the agreement and not merely of matters preparatory or ancillary to performance: See Cooney v Burns(supra), at pp 233-4, 240-1.
       
    2. That the act relied upon must have been done upon the faith of the agreement and must have involved on the part of the person doing it a change of position in relation to the subject matter of the contract of such a character that he would be unfairly prejudiced if the other party were to take advantage of the absence of written evidence: Maddision v Alderson (supra) at pp. 476-8; Cooney v Burns(supra), at pp, 233,235,241.'
       
57. In Francis (supra) Smith J held that the above two requirements were not fulfilled and rejected the specific performance based on handing over of the title to the claimant. In contrast the Plaintiff and Defendant both believed that Lot 35 was sold and part performance by installments payments as late as 1983, and the acceptance of the same cannot be considered preparatory or ancillary to performance of 'sale and purchase agreements' (D1). The part performance itself was part of the 'D'1. It would be unfairly prejudicial if the Defendant were to take advantage of the absence 'sale and purchase agreement' relating to Lot 35. So two tests stated by Smith J in Francis satisfy the requirements of part performance doctrine.
    
58. In Cooney v Burnes [1922] HCA 8; (1922), 30 CLR 216 it was the handing over of the lease to the plaintiff's solicitor which was considered as part performance for specific performance. There was evidence that it was handed over for examination or inspection by the solicitors for the plaintiff to that action for the preparation of a lease. The majority judgment held that the act of handing over of the lease was not an act of part performance but an act of preparatory to performance. All the 64 instruments marked as 'D1' contained the provision for installment payments of the sale price. On the balance of probability the Plaintiff's payments of installments would have been under similar agreement to 'D1'. Knox C.J in Cooney (supra) said that the 'court is bond to inquire what the agreement was.' (see p226). So, considering the evidence before me the only agreements between 64 lots of the said subdivision produced by the Defendant (D1) contained were made on a printed format and all had provision for installment payments and late Bans Raj would have obtained possession upon similar printed format. But the purchase price and installment pa method varied. The Plaintiff was unable to fill this, but 'P8' proved outstanding balance as at 31st December 1979.
    
59. In Cooney (supra) it was held p 232 (per Isaacs J)
    

'A suit for specific performance is essentially a suit for enforcing a stipulated obligation relating to property. The word "contract" itself primarily means a transaction which creates personal obligations; but it may, though less exactly, refer to transactions which create real rights (per Lord Buckmaster for Privy Council in Mharaj Ranjit Sing v. Maharaj Bhadur Singh[1]. If the personal obligations are such that according to the rules of equity operating on the conscience of the defendant it is right specifically to enforce the performance of the contract, then, and then only, does equity regard the purchaser as owner of the property. The question then is what is the test which equity applies to such a case as the present? It is not the same as in other cases where the law recognizes an enforceable contract but gives only a limited remedy. There the right is purely contractual and equity interposes, if at all, only with a remedy which law does not afford. In the present class of cases the right, if any, is not contractual, and al law none exists. Equity searches first for the right, and then, and then only, applies a remedy......'

60. In this action the Plaintiff had not pleaded fraud against the Defendant. He would not have sufficient evidence to plead such a thing, but that should not preclude equitable remedy available for him upon the cogent evidence produced before this court relating to part performance of payments of installments from 1969 to 1980s and unequivocal acceptance of Defendant as a prospective buyer of the Lot 35 in 1969. If this position were to change there should be some cogent evidence that mere allegation of Plaintiff and his predecessors as tenants.
    
61. In Cooney (supra) Knox C.J (dissenting judgment) summarized the law relating to part performance and the specific performance in relation to the requirement of written agreement or memorandum.(at p 221-2)
    

'.... The rules to be applied in determining whether a given act or series of acts amounts to such part performance as obviates the necessity for a memorandum in writing are reasonably clear; the difficulty lies in consideration of a great number of authorities, and especially of the speech of Lord Selborne L.C in Maddison v Alderson[2], leads me to the conclusion that these rules may be summarized thus- (1) The acts relied on must be unequivocally and in their own nature referable to some such agreement at that alleged (Maddison v Alderson[3]). I think the meaning of this statement is most clearly expressed by Wigram V.C in Dule v Hamilton[4], where he says: "It is in general, of the essence of such an act that the Court shall, by reason of the act itself, without knowing whether there was an agreement or not, find the parties unequivocally in a position different from that which, according to their legal rights, they would be in if there were no contract'. By the words "some such agreement as that alleged". I understand some agreement for the disposition of some estate or interest in the land in question. (2).The acts proved must be such as to renter it a fraud in the defendant to take advantage of the contract not being in writing(Fry on Specific Performance, 6th ed., sec 580). It is, I think, involve in proposition 1 and 2 that the circumstances in which the acts relied on were done must be proved. (3) When acts fulfilling the conditions expressed above have been proved, evidence become admissible to prove a parol evidence. (Frame v Dawson [6])." The previous question as to the sufficiency of the part performance must be settled before the construction and operation of the unwritten contract can be legitimately approached"(Maddison v Alderson, per Lord O'Hagan[7]. (4) In order that the plaintiff may succeed he must establish by clear evidence the agreement alleged by him, and it must appear that the acts relied on as acts of part performance were done for the purpose and in the course of performing that agreement and with no other view or design than to perform it. (5) Another rule, but one not relevant in the quest which arises in this case, is that the agreement sued on must be of such a nature that the Court would have jurisdiction to enforce it specifically if it had been in writing.'

62. In Cooney (supra) at p 227 Knox CJ quoted with authority Lord Selborne in Maddison v

Alderson in following manner;

'And in the same speech Lord Selborne said:-"It"(the statute"has in view the simple case in which he is charged upon the contract only, and not that in which there are equities resulting from res gestae subsequent to and arising out of the contract. So long as the connection of those res gestae with the alleged contract does not depend upon mere parol testimony, but is reasonably to be inferred from the res gestae themselves, justice seems to require some such limitation of the scope of the statue, which might otherwise interpose an obstacle even to the rectification of material errors, however clearly proved, in an executed conveyance, found upon an unsigned agreement.'

63. The said quotation of Lord Selborne was equally applicable to the case before me, and the evidence only points to a contract between the Plaintiff's late father and the Defendant for the sale of the Lot 35. The installment payments from 1969 to 1983 (and after that) proved the part performance. The Plaintiff sought the transfer of the title to him as the sole executor after the demise of co-executor.
    
64. In Cooney (supra) Issacs J at p 232 held,
    

'... What is the "sale" and the "purchase" of the land? It is not the contract for the sale and purchase-though that is colloquially referred to as if it were. From the standpoint of law the sale and purchase of land does not occur until the property is transferred. "sale" connotes transfer of ownership. The contract for sale does not transfer the ownership. Sometimes it is assumed that it does so in equity. So it does, provided the circumstances are such that a Court of equity would decree specific performance, but not otherwise(Central Trust and Safe Deposti Co v Sider[8]- see also Plimmer v Mayor &c of City of Wellington[9] and per Jessel M.R. in Wlsh v Lonsdale[10].

A suit for specific performance is essentially a suit for enforcing a stipulated obligation relating to property...........If the personal obligations are such that according to the rules of equity operating on the conscience of the defendant it is right specifically to enforce the performance of the contract, then, and then only, does equity regard the purchaser as owner of the property. (emphasis added)

Further at p 234

'In Caton v Caton[11] the same Lord says: "The right to relief.... Rests not merely on the contract, but on what has been done in pursuance of the contract.'

65. From the evidence before me there was right for specifically enforce the performance of the transfer of the title to Lot 35 to the estate of late Bans Raj after nearly 5 decades of possession and receipt of the installment payment. In my judgment the evidence on balance of probability proved purchaser (late Bans Raj) as the owner of Lot 35.
    
66. Higgins J in Cooney (supra) at p 240 quoted Master of Rolls in Phillips v Edwards [12] that "part performance ... means, the parties on both sides acting as if the agreement had been carried into execution." The Plaintiff's family as well as the Defendant for more than 40 years have acted as the Lot 35 was subjected to sale and purchase agreement similar to D1. There was no evidence even to suggest a deviation from such position and even as late as 2009 (P10) the Defendant was willing to transfer the Lot 35 to the Plaintiff provided he produced documentary evidence to the satisfaction of the Defendant.
    
67. In Hinde McMorland & Sim Land Law in New Zealand (Chapter 9) under, 'Title by Registration' in chapter 9.003 Unregistered interests and instruments states;
    

'It is now firmly established that a person who has given valuable consideration and who has a specifically enforceable contract has an equitable interest in the land. That equitable interest arises, not from the possession of the unregistered instrument itself, but from the contractual transaction which lies behind the unregistered instrument [13]This modern point of view is be preferred for two reasons. First, under the general law, a purchaser for valuable consideration of an interest in land acquired an equitable interest when a specifically enforceable contract was entered into, and there is no reason why this principle should be changed under the Torrens system, which recognizes equitable claims and interests [14] and does not affect the jurisdiction of Courts of equity to decree specific performance. [15]Secondly, if the equitable interest is regarded as arising from the transaction behind the unregistered instrument, no violence is done to the wording of s 41(1) of the Land Transfer Act 1952, which provides that: "No instrument shall be effectual to pass any estate or interest ... ". [16]

68. In my judgment, the provisions contained in the Land Transfer Act (Cap 131) should not prevent the Plaintiff obtaining the title for the Lot 35 only because he was unable to present the written sale and purchase agreement. The Plaintiff through evidence had established that his father late Bans Raj entered possession to the Lot 35 as the prospective purchaser and the installments for the sale price were paid over the years. The Defendant had waived any right to cancel the said agreement as it had accepted installments even as late as 1983. At no time there was evidence of Defendant notifying Plaintiff or his predecessors to the title that they had violated any condition of the said agreement, and conducted in a manner that Lot 35 was fully paid. This conduct was not changed for more than 20 years. So what remained was specific performance of transfer of Lot 35 to the Plaintiff as the executor of late Bans Raj.
    

Counter Claim

69. I do not think this counter claim filed on the eve of the hearing seeking, eviction of the Plaintiff from Lot 35 can be maintained as Defendant had violated section 89 of the Property Act (Cap 130). If the Defendant was a tenant he should be served a notice to quit in terms of the said provision which reads as follows;
    

'Termination of tenancies

'89.-(1) No tenancy from year to year is implied by payment of rent.

(2) In the absence of express agreement between the parties, a tenancy of no fixed duration in respect of which the rent is payable weekly, monthly, yearly or for any other recurring period may be terminated by either party giving to the other written notice as follows:-

(a) where the rent is payable yearly or for any recurring period exceeding one year, at least six months' notice expiring at the end of any year of the tenancy; or

(b) where the rent is payable for any recurring period of less than one year, notice for at least a period equal to one rent period under the tenancy and expiring at any time, whether at the end of a rent period or not.' (emphasis added)

70. The Defendant was unable to state the nature of the rental agreement between the parties.

It had failed to issue notice in terms of the said provision of law.

71. The Defendant also sought to transfer the property to the Plaintiff at its current value. When the Plaintiff and his family members had paid installments why should they pay the current market price? In this judgment I have rejected the contention that the Plaintiff and his predecessors were tenants. The Plaintiff produced evidence of payments of the installments with interest, to the Defendant and its agent. The installments were depended on the purchase price at 1969 not the present price. The Defendant was unable to produce evidence of any default of the payment or even a notice of such default.
    
72. Considering the circumstances of the case the Plaintiff should bear the costs in relation

to transfer of Lot 35.

CONCLUSION

73. There was unequivocal evidence that the Plaintiff's father late Bans Raj had entered the Lot 35 as a Prospective Purchaser of the said lots and he and his successors had paid installments for the purchase of the said Lot 35 from 1969 to 1980s . The last evidence of the receipt was in 1981 and there was no evidence of payments after that. The parties have unequivocally accepted the Lot 35 as an already sold and fully paid lot since the last payment, which would have been 1980s. The fact that Plaintiff could not produce the written contract, namely 'sale and purchase agreement' should not be a held against him. All the lots were subjected to the same type of sale and purchase agreement the only difference was the installments and the interest. Considering the circumstances of the case if there was any outstanding sum to be paid, the Defendant should be in a position to provide such evidence. The absence of that should be presumed as full settlement of the purchase price. It should also be noted the balance as at 31st December 1979 was $ 475 and payments were made after this. There was an agreement to sell the Lot 35 to late Bans Raj and he and his successors had paid the installments. There was no evidence of default of such payment or any repudiation or cancellation of such agreement. The terms of the said contract would have been in line with the printed format in D1. There was no evidence of interest or installment clause relating to Lot 35, but in the absence of any evidence of cancellation of the said agreement and steps taken to repossess the land the presumption was in the Plaintiff's favour. The Plaintiff should bear all the costs of the transfer of the property .The delay is regretted. Considering the circumstances of the case I would not award any costs.
    

FINAL ORDERS

1. A Declaration that the documents produced as 'P3', 'P6', 'P7' and 'P8' regarding property situated at Lot 35 on DP 3291 on certificate of Title Number 13440 all constitute legally binding agreement for the sale of the said property by the Defendant as vendor on one part and late Bans Raj and his successors as the Purchaser on the other part.
   
2. An order for specific performance of the said agreement for transfer of the said property

situated at Lot 35 on DP 3291 on Certificate of Title Number 13440 to the Plaintiff as the executor of the estate of Bans Raj

100. The Plaintiff to bear all the costs relating to said transfer.
     

4. An order that the Defendant execute all the legal documents required to give effect to the

transfer of the said property.

5. No costs.
   

Dated at Suva this 22nd day of April, 2016

......................................
Justice Deepthi Amaratunga
High Court, Suva

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^[1] (1918)L.R. 45 Ind.App., 162.

^[2] (1883) 8 App. Cas 467

^[3] (1883) 8 App. Cas. 467

^[4]5 [1846] EngR 1212; (1846) 5 Ha.,369, at p.381

^[6] (1807) to14 Ves., 386 at p.387

^[7] (1883) 8 App. Cas., at p 484

^[8] (1916) 1 A.C., 266, at p. 272

^[9] (1884) 9 App. Cas., 699

^[10] [1882] UKLawRpCh 85; (1882) 21 Ch. D., 9, at pp.14-15.

^[11] (1866) L.R. 1 Ch. , 137, at p. 147.

^[12] (1864) 33 Beav., 440 , at p. 444

^[13] In Chan v Cresdon Pty Ltd [1989] HCA 63; (1989) 168 CLR 242 at 257; [1989] HCA 63; 89 ALR 522 at 532 Mason CJ, Brennan, Deane and McHugh JJ said that "... though the unregistered instrument is itself ineffective to create a legal or equitable estate or interest in the land, before registration, the section [Real Property Act 1861 (Qld), s 43, corresponding to the Land Transfer Act 1952 (NZ), s 41(1)] does not avoid contracts or render them inoperative. So an antecedent agreement will be effective, in accordance with the principles of equity, to bring into existence an equitable estate or interest in the land. But it is that antecedent agreement, evidenced by the unregistered instrument, not the instrument itself, which creates the equitable estate or interest. In this way no violence is done to the statutory command in s 43 [s 41(1) (NZ)]." They cited Barry v Heider [1914] HCA 79; (1914) 19 CLR 197 at 216 per Isaacs J and Brunker v Perpetual Trustee Co Ltd [1937] HCA 29; (1937) 57 CLR 555 at 581 per Latham CJ (in dissent, though not on this point). Similar views were expressed in Corin v Patton (1990) 169 CLR 540; 92 ALR 1 . Chan v Cresdon Pty Ltd cited with approval by the Court of Appeal in

Balance Agri-Nutrients (Kapuni) Ltd v The Gama Foundation [2005] NZCA 267; [2006] 2 NZLR 319 (2005) 6 NZCPR 678. See also Butt para 2021, n 110, and Rossiter (1990) 64 ALR 727

^[14] See, for example, Barry v Heider [1914] HCA 79; (1914) 19 CLR 197 ; Great West Permanent Loan Co v Friesen [1925] AC 208 (PC); Abigail v Lapin [1934] AC 491 at 500 (PC) per Lord Wrightt; Regal Castings Ltd v Lightbody [2008] NZSC 87; [2009]2 NZLR 433 per Tipping J paras 154-156; noted (2009) 13 BCB 117 (Rendell), [2009] NZLJ 131 (Toomey).

^[15] Paras 9.041 and 9.043

^[16] Chan v Cresdon Pty Ltd [1989] HCA 63; (1989) 168 CLR 242 at 257; [1989] HCA 63; 89 ALR 522 at 532 per Mason CJ, Brennan, Deane and McHugh JJ; Burrows (1971) 4 NZULR 290 at 292.