Gaskell v Gaskell [2010] SBHC 49; HCSI-CC 403 of 2008 (3 August 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

GRACE GASKELL
First Claimant

AND:

JUNE GASKELL
Second Claimant

AND:

PHILIP GASKELL
Defendant

Dates of Hearing: 17 May and 26 June 2010
Date of Decision: 3 August 2010

Mr. Tagini for first claimant
Mr. Ipo for second claimant
Ms. Bird for defendant

DECISION ON APPLICATION
TO SUSPEND ENFORCEMENT OF POSSESSION ORDER

Cameron PJ:

1 This is a family dispute over rights to a residential property situated near White River, Honiara. The defendant as the current occupant seeks to suspend a possession order in favour of the owner, who is the second claimant and his step-sister.

2 By a transfer dated 16 August 2007 the property was transferred by the mother Grace Gaskell (the first claimant) to the daughter June Gaskell (the second claimant). On 22 November 2007 the fixed term estate in parcel no. 191-001-57 was thus registered in the sole name of June Gaskell.

3 June Gaskell, her husband, the defendant Philip Gaskell (June Gaskell's step-brother) and the mother Grace Gaskell were all living in the property in 2007 and for most of 2008. Then it seems in about September 2008 the defendant Philip Gaskell fell out with his step-sister June Gaskell and her husband, resulting in June Gaskell and her husband leaving the property. The mother Grace Gaskell also left the property, and went to live with Grace Gaskell and her husband. Philip Gaskell remained living on the property.

4 In 2009 June Gaskell and her mother Grace initiated these proceedings, and by a decision dated 28 October 2009 this Court ordered possession of the property be granted to June Gaskell, based on her ownership of the property.

5 Despite being ordered to vacate the property, Philip Gaskell did not do so. When an enforcement order was made by this court on 28 January 2010 and sought to be enforced, Philip Gaskell retaliated by hiring a new lawyer and on 26 February 2010 applying to this court to suspend the possession order.

6 In support of this application for suspension are two sworn statements of the mother Grace Gaskell, who within a few weeks of the possession order being made was back at the property living with her son Philip Gaskell. In these sworn statements Grace Gaskell, now more than 70 years old, goes so far as to say that she denies signing any transfer of the property to her daughter. This is despite the fact that the transfer on its face bears a signature purporting to be hers, and a certification from a Mr. Darcy O'Shea of the Public Solicitor's Office that she signed the document of her own free will and appeared to fully understand it. Mr. O'Shea's signatures also appear on the document as a witness to the signatures of Grace Gaskell as transferor and June Gaskell as transferee. It is also despite the that fact that there is a sworn statement from a Taberiki Pita that she attended the Public Solicitor's Office in August 2007 with Grace and June Gaskell and at which time the transfer was signed. She also deposes that at that time the solicitor held a private discussion of some 10 minutes with Grace Gaskell, which is consistent with her receiving advice on the nature of the transaction from him. I mention that Grace Gaskell also denies knowing anything about the claim for possession in respect of which she was named as the first claimant.

7 The basis of the application for suspension is that the status quo should remain while the mother Grace Gaskell brings a claim for rectification of the register by removing June Gaskell's name from it, based on fraud. The status quo, it is argued, is that the property is occupied by Grace Gaskell and her son Philip Gaskell.

8 For reasons I have touched on I am far from convinced that there is any real case for rectification made out. Even less am I convinced that the registered owner of the property should be deprived any further from enjoying possession of the property, which right flows from her ownership of it.

9 I therefore dismiss the defendant's application for a suspension of the enforcement order of 28 January 2010. I make no order as to costs.

BY THE COURT

__________________________
Justice IDR Cameron
Puisne Judge