In re Estate of Kalsakau [2007] VUSC 103; Probate Case 01 of 2007 (16 November 2007)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Probate Case No. 01 of 2007

IN THE ESTATE OF:
TABIA KALSAKAU
Deceased

BY:

REECE KALSAKAU
Applicant

AND:

LEISOLA KALSAKAU & JOSIANE COKATAKI
1st Respondent

AND:

NARU KALBEAU KALSAKAU
2nd Respondent

Coram: Justice C.N. Tuohy

Counsel: Mr. Nalyal for Applicant
Mr. Nakou for 1st Respondent
No appearance for 2nd Respondent

Date of Hearing: 16 November 2007
Date of Decision: 16 November 2007

ORAL JUDGMENT

1. This is the trial of an application for administration made by Reece Kalsakau in relation to the Estate of his late father Tabia Kalsakau who died on September 21 1996. The reason that there has had to be a trial is because responses were filed to the application. One response was filed by Leisola Kalsakau and Josiane Cokataki who are two sisters of the late Tabia. The other response was filed by Naru Kalbeau Kalsakau who is a brother of the late Tabia. Although those three persons have filed two responses between them, none of them has filed any evidence by way of sworn statements despite the fact that they were given the opportunity to do so. The only evidence before the Court is that filed by the Applicant Reece Kalsakau.

2. Reece Kalsakau’s case is quite simple. He says that he is entitled to administration under the law relating to administration of estates in Vanuatu, Queen’s Regulation 7 of 1972. The relevant paragraph of the regulation is paragraph 7 which sets out the order in which persons are entitled to apply for administration of the estate of a person who has died without leaving a will and late Tabia falls into that category. Paragraph 7 provides that if the deceased leaves a widow or a widower then that person, the wife or husband, is the first person entitled to apply for administration. The paragraph goes on to say that if the deceased person died without leaving a wife or husband then the children of the deceased are the next persons entitled to apply. Then depending on the deceased’s family position there are other persons who have subsequent entitlement, including brothers and sisters but they are further down the list than wife or husband and children of the deceased who are at the top of the list. In this case the wife, who is the top of the list, has consented in writing to her son Reece being appointed the administrator. So have all the other children of the deceased who have an equal right with Reece to apply. So Reece, according to the Regulation, with the consent of his mother and his siblings, has the prior right to apply over everyone else.

3. I turn now to whether there is anything in the material before me which should cause the Court to depart from the usual order because the Court does have a residual discretion not to follow the order set out in the paragraph if there is good reason. In this case the response filed by Naru says absolutely nothing. It was signed by Mr. Boar. Mr. Boar did not turn up at the conference prior to this trial about which he was given notice and he has not turned up at this trial. So apart from filing a response which says nothing other than that he was opposing the grant, Naru has put no information before the Court.

4. Leisola and Josiane have set out in their response signed by Mr. Nakou, the real reason why they were opposing the grant, (because Mr. Nakou no longer opposes the grant). However, even though he no longer opposes the grant, it will be helpful I think to the parties involved in this case for the Court to make the legal position clear in this judgment.

5. Leisola and Josiane say that they oppose the grant of administration in respect of a two storey building located at Tagabe because they say the construction of the two storey building was financed by a French bank and the loan was repaid by Josiane and Leisola. They also say that the land, which apparently is subject to a lease, is customary land of family Kalsakau and that the fact that a member of the family has been given a right to use it or given a lease of it does not mean that the custom ownership passes into the estate of that person.

6. Neither of these reasons are proper reasons to justify opposition to the grant of the administration to Reece. They are issues which are not decided on this application for administration. All this application for administration decides who is appointed the administrator of late Tabia’s estate. It does not decided whether custom land falls into his estate nor does it absolve the estate from any debt which it might owe to Leisola and Josiane nor does it decide against them any claim which they might wish to bring for unjust enrichment or for repayment of a loan or anything of that nature.

7. The granting of administration to the administrator simply puts him into the legal shoes of the deceased person. It enables him to take action through the Courts on behalf of the estate, to gather in the assets of the estate and imposes on him that duty and the duty of distributing the estate in accordance with the law. And the law in relation to the distribution of an estate of a person who dies without a will is set out in a different paragraph, Paragraph 6 of the same, Queen’s Regulation 7 of 1972. So the issues that Josiane and Leisola are concerned with are not decided in this case. I note that Mr. Nakou no longer opposes the grant of administration on behalf of Leisola and Josiane. The grounds as set out in their response are not proper grounds for opposing this application. There is no reason for the Court not to follow the usual order of entitlement to administer the estate. The Court therefore grants the administration of the estate to the applicant Reece Kalsakau.

8. Mr. Nalyal has applied for costs. He had said that this trial has only been necessary because the respondents filed responses and did not earlier withdraw them or consent to administration even after the true position or the correct legal position was explained. Mr. Nakou opposes any costs being ordered against his clients on the basis that they have not opposed the granting of administration at this trial.

9. The position is this. On the 5 December at a pre-trial conference I explained to both counsel the legal position which I have already explained in my judgment. It was evident that counsel were under the same misapprehension as many members of the legal profession in Vanuatu have been. They seem to have believed that an application for administration would decide what the property of the estate was and who it should be passed to. Of course that is a complete misapprehension of the law.

10. My note at the conference on the 5 September contained this:

"After explanation it is possible that the 1st Respondents (that is Mr. Nakou’s clients) will drop their opposition to the application, however a default judgment is not possible and the 2nd Respondent Naru is not here so a trial even if formal will be necessary unless there is consent otherwise by all parties".

In other words the true position was known after that conference. The respondents, all three of them, had the opportunity of dropping their opposition which would have taken away the necessity for this hearing today. I could have dealt with the application in chambers in the same way as unopposed applications for administration are dealt with. However, no steps were taken to withdraw the opposition, the responses, and so this trial has been necessary because of a misapprehension by the respondents of their legal position and, once they were told of the correct position, a failure to acknowledge it by withdrawing the responses and taking away the necessity for a trial. In those circumstances, the respondents, all three of them, must expect to have to pay some costs for today. They will not have to pay for the costs of preparing the application and sworn statements because those things are necessary on every application for administration, whether they are opposed or not. The only costs they will have to pay for are the costs of trial today, which I fix at 2 hours, 20,000 VT. And there will be costs in favour of the Applicant in the sum of 20,000 VT to be paid as 10,000 VT by Naru Kalsakau and as to 10,000 VT by Josiane and Leisola jointly.

Dated at Port Vila, this 16th day of November, 2007

BY THE COURT

C.N. TUOHY
Judge