Manepora'a v Aonima [2009] SBHC 32; HCSI-CC 28 of 2009 (9 July 2009)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No: 28 of 2009

BETWEEN:

ANDREW MANEPORA’A
Claimant

AND:

BRIAN AONIMA
1st Defendant

AND

ATTORNEY-GENERAL (Representing the Registrar of Titles)

2nd Defendant

AND:

WESTPAC BANKING CORPORATION
3rd Defendant

Date of Hearing: 8 July 2009
Date of Decision: 9 July 2009

Mr Radclyffe for Third Defendant (Applicant)
Mr Hauri’i for Claimant
No appearance other defendants

DECISION ON APPLICATION TO STRIKE OUT BY THIRD DEFENDANT

Cameron PJ:

1. The third defendant, Westpac Banking Corporation (Westpac), applies for the amended statement of claim to be struck out (dismissed) as disclosing no reasonable cause of action and as being frivolous and vexatious.

2. Briefly, the claim is that the first defendant is wrongly shown as the registered proprietor of two properties beneficially owned by the claimant. Further, it is alleged that the first defendant has wrongly borrowed against the security of those two properties from Westpac, which is now the holder of registered charges over both properties.

3. The claimant seeks rectification of the register, and to succeed must of course establish fraud or mistake.

4. I am satisfied that the amended statement of claim sufficiently sets out facts which if established prima facie would establish fraud on the part of the first defendant.

5. Equally, it is clear that Westpac acted in good faith and without notice of any adverse claims over the properties at the time it took the charges and advanced the funds. Mr Hauri’i for the claimant accepts that this is the position.

6. Notwithstanding that the pleadings allege no wrong-doing on the part of Westpac, it is clear that the Bank has an interest in the outcome of the claim. As stated, it is a claim for rectification of the land register. If fraud is established at trial, the issue will arise as to whether and to what extent the interests of the Bank as a bona fide chargeholder without notice take priority to the interests of the beneficial owner who seeks rectification of the register.

7. In view of the obvious interest of Westpac in the claim, it is proper that it remain as a party to the proceeding, notwithstanding that no wrong- doing is alleged against it. However, as accepted by Mr Hauri’i, in these circumstances it would not be appropriate to require Westpac to file a statement of defence or to undergo the expense of having counsel participate in the various interlocutory steps which may be necessary prior to a trial. I therefore direct that Westpac is to remain a party and through its solicitor is to be served with all Court documentation, but is not required to take any further formal steps in the proceeding. I further direct that Wespac is to be notified of any hearing date in respect of any interlocutory matter and in respect of the trial itself, and is entitled to participate in and be heard at trial.

8. Although the application fails, in the circumstances I make no order as to costs.

9. The matter will be listed for mention at 9.30 am on 30th July 2009.

THE COURT