IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER: of the Land Registration Act 1992/1993

AND:

IN THE MATTER of an application by DORA LETELE of Auckland, Widow,
MARIA SHECK of Aai-o-Fiti, Widow,
THERESA LEAU of Togafuafua, Widow,
JOSEPHINE HUNT of Vaitoloa, Widow,
MARY HICKS, of Aleisa, Spinster,
and EMELIA COLLINS of Auckland, New Zealand, Married Woman,
for the removal of Caveat No. 538 X
APPLICANTS

AND:

RASELA MOLI FILIA, PISAINA FILIA,
POVITIA HICKS, TUIVALE HICKS, and SILIA HICKS
RESPONDENTS

Counsel: Mr P Fepuleai for the Applicants
Ms O Woodroffe for the Respondents

Ruling: 23 August 2004

RULING OF JUSTICE VAAI

The six applicants have since the 14th December 1967 became the registered owners as donees of a parcel of land at Leauva’a near Apia pursuant to a deed of conveyance from their father as the donor. But they have never lived on the land or did anything with the land since 1967. It was the Respondents and their ancestors who have always occupied and are presently occupying the land by constructing thereon permanent dwellings, and developing plantations. They have also lodged caveat No.538 X against the title.

By motion dated the 30th September 2003 the applicants seeks orders:

(i)	to remove the caveat issued by the Respondents
(ii)	that the Respondents vacate the land; and
(iii)	that the Respondents and members of their family dismantle and remove all houses and other personal effects from the land.

In addition to filing a motion opposing the applicants’ motion for eviction and removal of caveat, the Respondents have pursuant to Rule 30 Supreme Court (Civil Procedure) Rules 1980 filed an application for security for costs against two of the applicants, Dora Letele and Emelia Collins, who reside outside the jurisdiction. It is the application for Security for Costs which is the subject of these proceedings. It is not disputed that the two applicants concerned both reside outside the jurisdiction so that the only issue for determination is how the discretion of the court should be exercised. Counsel for the respondent alluded to the New Zealand approach and the principles cited when considering security for costs applications pursuant to rule 60 New Zealand High Court Rules. See for example Aquaculture Corp v McFarlane Laboratories (1987)1 PRNZ 467; Nikau Holdings Ltd v Bank New Zealand (1992)5 PRNZ 430. Basically however what is required is a broad overall assessment of the circumstances relevant to the proceedings; as Hammond J noted in the often cited case of Hamilton v Papakura District Council (1997)11 PRNZ 333 at 335:

“The words of the rule necessarily raise a threshold test; but I respectfully agree with those authorities which hold that what is required is a broad overall assessment under that head. Further in my view, that exercise is not one to be conducted in a vacuum, the court has to have regard to the real situation of the parties, the nature of the proceeding and to cast a realistic eye over the course which the proceeding has and will likely take.”

In support of the application for security for costs the Respondents rely on the two affidavits filed in support of their opposition to the removal of caveats. Counsel has also filed written submissions. In opposing the application for security for costs counsel for the applicant made oral submissions and relied on the affidavit supporting the application for removal of caveat.

Originally the land which is the subject of the dispute between the applicants and the respondents formed part of the estate of one William Hicks who migrated from the Fiji islands. The applicants say they are the heirs and successors of the only child of William Hicks. But the respondents say William Hicks had two issues; not one as alleged by the applicants; they are the successors of the other issue which explains why they and their ancestors have lived continuously on the said land. Moreover the respondents argue that they have in their possession copies of the official records of the Public Trust Office (as administrator of the estate of William Hicks) which clearly notes the interests of the respondent’s grandfather in the estate of William Hicks and in particular the subject land in dispute as well as other properties. They also allege that the transactions which resulted in the applicants being conveyed the land in 1967 was a result of fraud perpetuated by the applicant’s father. In any event the respondents and their ancestors have had continued undisturbed occupation of the subject land for more than fifty years.

On the other hand the applicants say their father, the sole successor of the estate of William Hicks, allowed the respondents’ father to live on the subject land in 1952 in response to his request for a place to live which explains why the respondents are presently residing on the land. The respondents’ father according to the applicants is the son of a Fijian national brought over by William Hicks to look after his children.

Counsel for the applicants confirm that the only application before the court is for removal of the caveat. I accept that to be the correct and proper course to adopt because the order to evict sought by the applicant cannot be commenced by way of motion; it should be pursued by way of action pursuant to Rule 11 Supreme Court (Civil Procedure) Rules 1980. Having said that, the security for costs sought by the respondents against two of the applicants, if granted, should be in relation to the application for the removal of caveat only. There are no other proceedings before the Court. But others will follow irrespective of whether the caveat will be lifted or not. And it must also be borne in mind that the procedure which the court adopts in an application for removal of caveat is the summary procedure, that is, the court deals with the application on the basis of affidavits and submissions only. See : Air New Zealand v Rosalina Higginson (unreported decision of Sapolu CJ Misc.15376/92). It will follow therefore that if security for costs is ordered against the two applicants it will not be anywhere near $50,000 against each applicant as sought by the respondents. Counsel for respondents submit that the quantum of security for costs sought reflects the complexity of the pending litigation as the court will need:

(i)	to determine the facts dating back to 1899 when the original owner (William Hicks) of the land died;
(ii)	to determine the role of the Public Trust Office and duties of the Public Trustee as Administrator of the estate when appointed in 1923;
(iii)	to determine the respondents continued occupation of the disputed land since 1949 the law relating to adverse possession, disputed facts as to who has the legal claim to the land and the respondent’s claim that the registered owners obtained title by fraud.

But unless and until those pending litigations are filed, the court is reluctant to take them into consideration firstly because the respondents themselves may very well initiate those pending proceedings thus subjecting them to an application for security of costs as they appear to be all residing overseas and secondly although there may be several legal issues involved in the pending litigations, they are not in my view considered complex. In fact the issues may very well be confined to the determination of the heirs of William Hicks, fraud, adverse possession, and the statute of limitation. But for the summary procedure adopted in the applications for the removal of caveats the standard costs awarded have been in the range of $350 to $500 which means that in the event the six applicants are ordered to pay costs, either the four applicants living within the jurisdiction can absorb the costs or the amount to be apportioned to the two applicants will be too insignificant to warrant an order for security for costs.

At the same time however I bear in mind that the allegations raised by the respondents and the applicants in their affidavits are of such a nature that it may not be appropriate for the court to make any determination of facts under the summary procedure and the court may very well make further orders against either party before proceeding to a substantial hearing. In those circumstances I am prepared to reserve to the respondents leave to reapply if necessary but in the meantime the present application is refused. Each party to bear its own costs.

The application for removal of caveat is adjourned to the 20th September to set a hearing date.

JUSTICE VAAI