KCM Properties Ltd v Valbros Accommodation Ltd [2024] SBCA 28; SICOA-CAC 33 of 2023 (25 October 2024)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	KCM Properties Ltd v Valbros Accommodation Ltd
Citation:
Decision date:	25 October 2024
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands Bird, J)
Court File Number(s):	33 of 2023
Parties:	KCM Properties Limited v Valbros Accommodation Limited, Rose Walelulua, Stanley Kaipua, Dennis Kwan, Commissioner of Lands, Registrar of Titles
Hearing date(s):	16 October 2024
Place of delivery:
Judge(s):	Muria P Wilson JA Gavara-Nanu JA
Representation: Appellant Representation: Respondent	B Etomea L Puhimana
Catchwords:
Words and phrases:
Legislation cited:	Limitation Act , S 9 (2), S 32, S 32 (2), S 39, S 39 (2), S 17, Solomon Islands Courts (Civil Procedure) Rule 2007, r 5.43 (b))
Cases cited:	Kevu v Ragoso [2002] SBHC 90, Liligeto v Commissioner of Lands [1997] SBHC 98,
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Dismissed
Pages:	1-12

JUDGMENT OF THE COURT

1. This is an appeal against a decision of a High Court judge refusing to strike out a civil claim that was filed on 21 May 2021.
2. The appellant KCM Properties Limited is registered as the owner of fixed term estates in four parcels of land in West Honiara. The first, second and third respondents to the appeal, Valbros Accommodation Limited, Rose Walelulua and Stanley Kaipua, allege that the appellant became registered as such as the result of fraud and/or mistake. In the claim they seek rectification of the Register and damages. The fourth named respondent to the appeal, Dennis Kwan, was never served with the claim. The fifth and sixth respondents, the Commissioner of Lands and the Registrar of Titles, had no part in the appeal proceeding.
3. In refusing to strike out the claim, the judge rejected the appellant’s contention that the claim was statute barred under the Limitation Act.
4. The appellants submit that the decision should be set aside because it is based on a number of errors ‘in law and fact’. The decision was made on an interlocutory application. On the evidence, which consisted of affidavits filed by the respective sides to the dispute, there were clearly factual disputes that were not and could not have been resolved in the application.
5. In the circumstances it would only have been possible for the judge to have determined issues of law that arose if the respondents’ version of the facts were accepted. This court has approached the appeal on that basis.

THE REGISTERED DEALINGS

6. The first respondent became registered as owner of the fixed term estates (‘FTEs’) in the four parcels of land in 1998.
7. Transfers of ownership of the FTEs in two of those parcels (nos 191-006-196 and 191-006-207) from the first respondent to the fourth respondent, Dennis Kwan, were lodged for registration on 22 December 1998. Transfers of ownership of the FTEs in those parcels from the fourth respondent to the appellant were lodged for registration on 25 August 2006.
8. Transfers of ownership of the FTEs in the other two parcels (nos 191-006-197 and 191-006-206) from the first respondent to the appellant were lodged for registration on 20 July 2004 and 23 November 2004 respectively.

LIMITATION ACT

9. Section 9(2) of the Limitation Act provides –
   • (2) No action shall be brought nor any arbitration shall be commenced by any other person to recover any land after the expiration of twelve years from the date on which the cause of action accrued to him or, if it accrued to some person through whom he claims to that person:
   • Provided that....

The proviso is not presently relevant.

10. By s 32 of that Act, where a claim in an action is based on fraud or mistake, the prescribed period runs from when the plaintiff discovered the fraud or mistake or could, with reasonable diligence, have discovered it.
11. It is apparent from the passages of the judge’s reasons set out in the next paragraph that her Ladyship focused on when the second respondent, Rose Walelulua, became or ought to have become aware of the fraud or mistake.
12. Her Ladyship found as follows –
    • 23. .... From all the documents, I am able to find that with due diligence the second claimant could have been able to ascertain the alleged fraud and or mistake pleaded in this case in respect of parcel number 191-006-206 on about 30^th April 2008. The limitation period would therefore run from 30^th April 2008.
    • 24. Having said that, it is obvious that the second claimant with due diligence, could have been aware of the alleged fraud and or mistake over the four parcels of land on the 9^th November 2009. That would mean that the time pursuant to s 9(2) of the Limitation Act runs from that date. In light of the provisions of s 32(2) of the Limitation Act together with the view taken by the court in the Ragoso case, I am further of the view that the wrong that was discovered by the second claimant on the 30^th April 2008 is a continuing wrong that allows this court to exercise its discretion under s 32(2) of the Limitation Act. I can so exercise that discretion in favour of the claimants.
    • 25. In any instance, if I am wrong in my interpretation and application of the laws, I can also say with confidence that the claim filed by the claimants on the 21st May 2021 is not statute barred under s 9(2) of the Limitation Act as per the content of paragraph 15 above. I can accept that the date the cause of action had accrued was the 9th November 2009 and therefore the claim was filed some 7 months short of the limitation period of twelve years.

PARCEL 191-006-206

13. From 27 October 1989 the shareholders and directors of the first respondent were Rose Wale, her husband Valentine Wale and her brother-in-law Sebastine Harry Wale. Valentine Wale died in 1999 and Sebastine Harry Wale died in 2011.
14. In an affidavit filed on 21 May 2021 the second respondent deposed to dealings she had with Dennis Kwan in relation to parcels 191-006-97 [sic] and 191-006-206 in 2004. She was introduced to Kwan by the late Silas Chekana. Kwan agreed to purchase the first parcel for SBD 227,000.00. He paid less than SBD 50,000 (in total) by instalments, but never paid the complete purchase price. At his request, she signed a receipt for each instalment when it was paid. He did not give her copies of the receipts.
15. In the course of those instalment payments, she told Kwan that she would also like to sell parcel 191-006-206. She said she would subdivide that second parcel to create a separate small parcel for the portion on which there was a building where there was a tyre repair business. She offered what would be the larger portion to Kwan for SBD 240,000, saying if he wanted the smaller portion as well he could purchase it for SBD 30,000. Kwan immediately gave her a cheque for SBD 100,000 and at his request she signed a receipt. He did not give her a copy of the receipt. She says she told him that the smaller portion was excluded from the transaction as there was to be a subdivision.
16. The second respondent continued –
    • 34. Some weeks later, Silas Chekana called me to meet them. I met Mr Dennis Kwan and Silas Chekana, and Silas Chekana gave me a letter, he said this is consent, and asked me to sign, which I did.
    • 35. Mr Silas Chekana nor Dennis Kwan did not explain the content of the letter. Nor read it to me. He said that this consent, and asked me to sign it.
    • 36. The letter must have been written by either Mr Dennis Kwan or Silas Chekana.
    • 37. They knew that I do not really read and write.
    • 38. At the same time, Mr Dennis Kwan and Silas Chekana then took away from me, the common seal of Valbros Accommodation Limited.
17. According to the second respondent, neither Kwan nor the appellant made any further payment for either of those two parcels.
18. She said she did not have any similar dealings with Kwan or the appellant in relation to parcels 191-006-196 and 191-006-207. She denied that her late husband sold parcels 191-006-196 and 191-006-207 to Kwan.
19. In 2008 the second respondent agreed to sell the smaller portion of parcel 191-006-206 (where the tyre repair business was) to the third respondent, Stanley Kaipua. The third respondent demanded a refund of the purchase moneys when he found that Kwan had rented out one of the rooms in the building.
20. The judge found the second respondent ought to have been aware of the fraud or mistake relating to parcel 191-006-206 by about 30 April 2008. That was the date on which she wrote the following letter to the Commission of Lands –
    • Re: Subdivision of P/N 191-006-206
    • The above parcel should be first eventuated before any transfer can be made to KCM PROPERTIES PTY LTD as it is now. This on the understanding that the small building built in front of the lot will be still mine and after the above parcel s been subdivided.
    • Now that the whole parcel is been transferred to the above company (KCM) I’m now arranging for the parcel to be subdivided so that a new parcel could be created to have it registered under my name. (see details for subdivision attached).
    • Advise that that the total consideration for the parcel was not fully paid to me as been agreed on.
    • Thank you
    • (Signature)
    • Rose Wale
    • Valbros Limited
21. The common seal of the first respondent (Valbros Accommodation Limited) was affixed to what purported to be a transfer of the FTE in parcel 191-006-206 to the appellant on a document dated 23 November 2004. The common seal of another company, Valbros Limited, was also on the document but lines had been drawn through it. The transfer was lodged for registration the same day and registered the following day.
22. As the judge noted in paragraph 14 of her reasons, the claim was filed more than 12 years after 30 April 2008, which was when the second respondent could with reasonable diligence have become aware of the fraud or mistake.
23. Contrary to what her Ladyship said in paragraph 24 of her reasons, s 32(2) of the Limitation Act does not give a court a discretion to extend the limitation period beyond the date when the plaintiff was or ought to have been aware of the fraud or mistake.
24. By s 39 of the Act the court may direct that provisions of the Act shall not apply to an action, or to any specified cause of action to which it relates, if it appears to the court that it would be equitable to allow an action to proceed. As her Ladyship did not give express consideration to the factors in s 39(2) that the court must take into consideration, it could not be suggested that the references to s 32(2) in paragraph 24 were typographical errors.
25. Section 17 of the Limitation Act provides –
    • 17. Subject to the other provisions of this Act, a cause of action shall be deemed to accrue on the date on which the right to relief sought by an action first accrues:
    • Provided that where the cause of action is founded on a continuing wrong, a fresh cause of action shall be deemed to accrue on each day the wrong continues.
26. Section 39 was considered and applied in Kuve v Ragoso [2002] SBHC 90. That case concerned the removal and replacement of the trustees of certain land. A writ and statement of claim were filed within the applicable limitation period of 6 years but they were not served due to oversight by the plaintiffs’ solicitors. Some 8 years later, outside the limitation period, another writ was filed. After applying s 39, FO Kabui J said -
    • Even if I am wrong in my view, the proviso to section 17 of the Act appears to be applicable to this cause of action. That is, the fact that the 1^st Defendants are the holders of the title to Parcel Number 079-006-4 is a continuing fact and being so is deemed to accrue on each day that fact continues as a wrong in the eyes of the Plaintiff. (See Wilson Liligeto, D Tigulu, A Redley, M Enoch and K Roga v Commissioner of Lands, George Hilly and the Registrar of Titles Civil Case No 166 of 1997, [1997] SBHC 98). The cause of action in this case is therefore not statute barred as alleged by the 1^st Defendants.
27. Neither the judge nor this court had the benefit of full argument on s 17. (Counsel for the appellant made a somewhat incoherent submission based on this case being distinguishable from Ragoso. Be that as it may, this Court rejects his submission because it was based on there being a discretion under s 32(2).)
28. Whatever the correct characterisation of the wrong in Ragoso, in the present case the wrong on which the cause of action with respect to parcel 191-006-206 is founded occurred when the transfer document was lodged for registration on 23 November 2004. It was not a continuing wrong.
29. Accordingly, the judge erred in law in holding that she could extend the limitation period in relation to parcel 191-006-206. On her Ladyship’s finding that the second respondent ought to have been aware of the fraud or mistake in relation to that parcel on 30 April 2008, the claim in relation to that parcel was statute barred.

THE FOUR PARCELS

30. After finding that the limitation period for the fraud or mistake in relation to parcel 191-006-206 ran from 30 April 2008, the judge said –
    • 24...... it is also obvious that the second claimant with due diligence, could have been aware of the alleged fraud and or mistake over the four parcels of land on the 9^th November 2009. That would mean that the time pursuant to s 9(2) of the Limitation Act runs from that date.
31. In paragraphs 42 and 43 the second respondent denied dealings with Dennis Kwan or the appellant in relation to parcels 191-006-196 and 191-006-207.
32. After Kwan’s tenant Peseika Gakei stopped paying rent for the room in the building on parcel 191-006-206, Kwan instituted a civil claim against him (Civil Case No 402/2009). Ultimately Kwan did not pursue that proceeding and Gakei left the premises. After that claim was commenced, the second respondent wrote a letter dated 9 November 2009 to the lawyers for one of the parties wanting to become a party to the proceeding. The letter identified the claim and the parties to it –
    • Re High Court Claim CC No 402 of 2009
    • KCM Properties Ltd Claimant
    • Gakei Peseika First Defendant
    • Gakei Peseika and “All Occupiers of the Fixed Term Estates in Parcel Numbers 191-006-196, 191-006-197, 191-006-206 and 191-006-207 as set out in the Attached Schedule Second Defendant
    • There was no schedule in the Appeal Book.
33. On the basis of that letter the judge was satisfied that by 9 November 2009 the second respondent was aware of fraud or mistake in relation to all four parcels of land.
34. However, having found that the second respondent ought to have been aware of the fraud or mistake with respect to parcel 191-006-206 on 30 April 2008 (paragraph 23 of her reasons), it was not open to her Ladyship to then find that the limitation period in relation to that parcel ran from the later date of 9 November 2009. Thus the judge erred in holding that the limitation period in relation to parcel 191-006-206 ran from 9 November 2009.
35. The judge was correct in holding that the claims in relation to the other three parcels were not statute barred. As her Ladyship said, the period between 9 November 2009 and the filing of the claim on 21 May 2021 was less than 12 years. Accordingly the claims in relation to the other three parcels were not statute barred. Her Ladyship made no error in that regard.

OTHER MATTERS

36. The transfer document (RT Form 4) for parcels 191-006-196 and 191-006-207 dated 21 December 1998 and that for the transfer of parcel 191-006-197 dated 20 July 2004 bore the corporate seal of Valbros Limited, rather than that of owner of the FTEs, Valbros Accommodation Limited (the appellant). There is no evidence of the circumstances in which the Registrar of Titles registered the transfers. The judge observed (in paragraph 22 of her reasons) that the mistake could have surfaced in 2004 when the RT Form 4 for parcel 191-006-206 was stamped with both common seals. However, there was no evidence that the second respondent became aware of it in 2004, and her Ladyship made no error in saying that it was an issue for trial.
37. The judge did not err in relying (in paragraph 21 of her reasons) on paragraph 17 and subsequent paragraphs of the second respondent’s affidavit because the second respondent did not expressly say she was acting on behalf of the first respondent. Whether or not she had authority to deal with the FTEs on behalf of the first respondent is a different issue from when she became aware of the fraud or mistake.
38. As noted paragraph 2 of these reasons, the claim was not served on Dennis Kwan who was the second defendant to the claim. In paragraph 10 of her reasons the judge said that the claim was of no effect against him because it was not served on him within three months from the date of filing (Civil Procedure Rules r 5.43(b)) but that it was still effective against the other defendants. That was correct.
39. The judge ordered –
    4. The Claimant is to further amend their claim limited to names of parties only.

In the court heading on the claim the second defendant was ‘Rose Walelulua’, and the affidavit filed on 21 May 2021 was sworn in that name. However, Company Extracts relating to Valbros Accommodation Limited (the claimant/appellant) and Valbros Limited showed ‘Rose Wale’ as a director. Her Ladyship said (in paragraph 27 of her reasons) –

• ....I am of the view that the second claimant should be named Rose Wale as according to the company register extract alias Rose Walelulua. An amendment could cure that defect and I direct the claimants to file a re-amended claim only in as far as the name of the second claimant is concerned. That amendment does not affect the substance of the case.

40. This court rejects the appellant’s submission that judge erred in fact and law in not requiring proof of the second claimant’s identity. If the appellant challenges her identity, it should raise that challenge as an issue on the pleadings, and it should be resolved at trial.

DISPOSITION

41. The appeal is allowed to the extent it is an appeal against the High Court’s failure to strike out the claim in relation to parcel 191-006-206.
42. Otherwise the appeal is dismissed.
43. The appellant is to pay the first, second and third respondents’ costs of and incidental to the appeal.

Muria P
Wilson JA
Gavara-Nanu JA