Park v Kim [2013] FJMC 301; Civil Action 250 of 2012 (26 July 2013)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
WESTERN DIVISION

CIVIL ACTION NO. 250 OF 2012

BETWEEN:

JUSEAK PARK
of Lot 27, Aazmat Khan Road, Namaka Park, Nadi (Presently in Nauru).
APPLICANT

AND:

KWANGSEOK KIM and JONG SU LEE
both of South Korea.
RESPONDENTS

AND:

THE REGISTRAR OF TITLES of Suva.
NOMINAL FIRST RESPONDENT

AND:

THE ATTORNEY GENERAL OF FIJI
NOMINAL SECOND RESPONDENT

RULING

[1]. This application stems from a Ruling I had made in December 20012 and which is reported in paclii in Park v Registrar of Titles [2012] FJHC 1478; Civil Action 150.2012 (14 December 2012). In that earlier Ruling, I had opined as follows:

(i) a Power of Attorney is an instrument conferring authority by Deed (see section 114(1)[1] Property Law Act (Cap 130) and Halsbury’s Laws of England[2] and Ram v Lok [2011] FJHC 798; HBC320.2007 (9 December 2011) as per Mr. Justice Nawana P[3].

(ii) Part XII or the Property Law Act concerns all Powers of Attorney.

(iii) but if a Power of Attorney confers power to deal with real estate, in the sense that it is "intended to be used under the provisions of [the Land Transfer Act]", then Part XII of the Property Law Act must be read together with Part XVIII of the Land Transfer Act (Cap 131).

(iv) Part XVIII of the Land Transfer Act (Cap 131) requires that any Power of Attorney conferring power to deal with real estate must be registered with the Registrar of Titles/Deeds[4] pursuant to section 119 of the same Act[5].

(v) otherwise, a Power of Attorney which concerns any other matter and does not confer any power to deal with real estate, need not be registered.

(vi) such a Power of Attorney as in (v) above need not be registered because:

• (a) it is not covered under section 119 of the Land Transfer Act (Cap 131).
  
• (b) it is governed by the provisions of Part XII of the Property Law Act (Cap 130) and also by the provisions of the Registration Act (Cap 224).
  

(c) sections 2 and 3 of the Registration Act provide that deeds "may be registered" in the office of Registrar of Titles[6].

(d) the use of the words "may be registered" suggests that it is not a compulsory requirement that deeds (including powers of attorney) be registered.

(e) accordingly, it is not compulsory to register under the Registration Act any Power of Attorney. However, if the Power of Attorney in question is one that confers power to deal with land, then it is compulsory that it be registered under section 119 of the Land Transfer Act.

[2]. In this case, I am asked to determine whether an unregistered Power of Attorney granted by the Plaintiff to the Respondents ought to be declared null and avoid.

[3]. The Power of Attorney in question includes inter alia the power to:

Sell, convey, buy, operate, manage, insure, improve, repair or perform any other act with respect to any of my property (now owned or later acquired) including, real estate and real estate rights (including the right to remove tenants and to recover possession) and business entities in Republic of Nauru. This includes the right to sell or encumber any homestead that I now own or may own in the future.

[4]. Apart from the above, the Power of Attorney confers other general powers.

[5]. I also see from amongst the documentation presented to me that the Plaintiff had, on 28 December 2012, signed a document entitled "Revocation of Power of Attorney" by which he purportedly revoked all powers he gave to the defendants.

[6]. In my view, the Power of Attorney concerned, in so far as it confers any power to deal with real estate (in Fiji), cannot be used in Fiji for the simple reason that it has not complied with section 119 of Fiji's Land Transfer Act (Cap 131). Had it been so registered, any donor/grantor such as the plaintiff could simply have revoked it by serving a Notice of Revocation (see sections 120 and 121 of the Land Transfer Act (Cap 131)).

[7]. In any event, the Revocation of Power of Attorney dated 28 December 2012 signed by the plaintiff which purportedly cancels all the powers given to the defendants is sufficient written confirmation that the plaintiff, as principal, has effectively revoked the Power of Attorney that he had earlier conferred upon the defendants. As long as the plaintiff is mentally capable, he is not required to explain why he is revoking his Power of Attorney, though he may, if he wishes, state the reason(s). Some powers of attorney are irrevocable where the power of attorney is given for valuable consideration to effectuate a security or to secure the interest of the donee/agent (see sections 116 and 117 of the Property Law Act). There is nothing before me to indicate that the Power of Attorney in question is such a Power of Attorney.

[8]. For the record, I did direct earlier on in this case that the application before me served on the defendants. They would no doubt have a right to be heard if they were to contend that the Power of Attorney in question is irrevocable because, for example, it was given for valuable consideration to effectuate a security or to secure an interest of theirs. An affidavit of service is filed herein to confirm that they have been duly served in Jean Ju in Korea on 16 April 2013 (I observe that no leave was ever granted to serve out of jurisdiction but I shall overlook that only in this case).

[9]. While I am of the view that it is hardly necessary to obtain a Court Declaration to effectuate the revocation of ac Power of Attorney, I am of the view that the Plaintiff has effectively revoked the unregistered Power of Attorney that he granted to the Defendants on 08 June 2012 by virtue of his Revocation of Power of Attorney dated 28 December 2012.

Master Tuilevuka.

26^th July 2013

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^[1]Section 114 states as follows:

Execution by attorney in his own name

114. -(1) The donee of a power of attorney may execute or do any assurance, instrument or thing in and with his own name and signature and his own seal (where sealing is required) by the authority of the donor of the power; and every assurance, instrument and thing so executed and done shall be as effectual in law to all intents as if it had been executed or done by the donee of the power in the name and with the signature and seal of the donor thereof.

(2) This section shall apply to powers of attorney created by instruments executed either before or after the commencement of this Act.

^[2] Citing Halsburry's Laws of England; Fourth Edition, Page 438 which defines a Power of Attorney as:

An instrument conferring authority by deed is termed a power of attorney. The person conferring the authority is termed the donor of the power, and the recipient of the authority, the donee. A power of attorney is construed strictly by the courts, according to well recognized rules, regard first being had to any recitals which, showing the general object, control the general terms in the operative part of the deed.

General words used in conferring the power are construed as limited by reference to the special powers conferred, but incidental powers necessary for carrying out the authority will be implied. Thus, a power granted to the donee to manage certain property followed by general words giving him full power to do all lawful acts relating to the donor's business and affairs... does not necessarily include authority to indorse bills, for the general words are construed as having reference to managing the donors property for which indorsing bills may not be incidental or necessary...

^[3] Ram v Lok [2011] FJHC 798; HBC320.2007 (9 December 2011) where Mr. Justice Nawana P of the Lautoka High Court cited the from Powers of Attorney: F Bower Alcock; London Sir Isaac Pitman & Sons, Ltd; 1935 Pg. 1 and 22.

^[4] The Office of the Registrar of Titles in Fiji also functions as the Registrar of Deeds pursuant to section 2 of the Registration Act (Cap 224).

Section 2 of the Registration Act states as follows:

Registration of Deeds. Definition

All deeds made within Fiji, whether deeds inter partes or deed poll may be registered in the office of the Registrar of Titles who, for the purposes of the Act, shall be the Registrar of Deeds....

^[5] Section 119 states as follows:

Powers of attorney to be deposited and registered

119. Every power of attorney intended to be used under the provisions of this Act, or a duplicate or certified copy thereof, verified to the satisfaction of the Registrar, shall be deposited with the Registrar who shall register the same by entering in the register to be known as the "Powers of Attorney Register" a memorandum of the particulars therein contained and of the date and hour of its deposit with him.

^[6] Sections 2 and 3 of the Registration Act provide as follows:
Section 2:

All deeds made within Fiji, whether deeds inter partes or deed poll may be registered in the office of the Registrar of Titles who, for the purposes of the Act, shall be the Registrar of Deeds........

Section 3:

Deeds may be registered for publication, for preservation and for execution, or for one or more or all of these objects.