Von Reiche v Melton [2005] WSSC 43 (18 March 2005)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER Of Caveat 927х affecting all that land at Siusega described as Parcel 1647 Flur XI Upolu Volume 19 Folio 6 of which Eugenie Ainslie Von Reiche of Vailima, Widow is the registered proprietress.

BETWEEN

EUGENIE AINSLIE VON REICHE
of Vailima, Widow
Applicant

AND

MONTANA MELTON
of Vaivase-uta C/- Brunt Keli, Barristers & Solicitors, Level 2, CA&CT Plaza, Savalalo
Respondent

Counsel: Ms R Drake for the Applicant
Mr Brunt for the Respondent

Hearing: 10 March 2005
Decision: 18 March 2005

DECISION OF JUSTICE VAAI

The applicant seeks an order for the removal of caveat No.927x lodged in December 2003 on land (hereinafter referred to as the land) registered under the name of the applicant.

The land which consists of two parcels was jointly owned by the respondent and her former husband. By deed of conveyance dated 28th September 1990 the respondent conveyed her undivided half interest in the land to the applicant and her late husband at a price of $33,000.00. The applicant’s husband died in March 1999 and by partition order granted by this Court in September 2003 the applicant became the owner of one of the parcels, the subject of these proceedings.

The onus is on the respondent as the caveator to show cause as to why the caveat should not be removed. See Sims v Lome (1989) 1 NZLR 656; Imo v Pereira (1978) (Unreported Supreme Court of Samoa) and Air New Zealand v Rosalina Higginson (1993) (Unreported Supreme Court of Samoa).

To maintain the caveat the respondent has to establish that there is a reasonably arguable case to justify the continued existence of the caveat. See Holt v Anchorage Management Ltd [1987] NZCA 5; (1987) 1 NZLR 108; Sims v Lome (supra); Public Trustee v Li’o Miti & Others (1995) and Samoa National provident Fund & Westpac & Development Bank v Wilson Stanley & others (2003) both unreported judgment of the Samoa Supreme Court.

Counsel for the respondent told the court that the caveator was outside the jurisdiction and will accordingly not be available to give evidence in these proceedings. But her presence is not necessary and if she was present it will be unnecessary for her to give evidence as the procedure adopted in these proceedings is the summary procedure: See Air New Zealand v Rosalina Higginson (supra) and Sims v Lome (supra). Since the procedure is the summary one, it will be inappropriate to make any determination on disputed questions of fact, which means an order for the removal of caveat will not be made unless it is patently clear that the caveat cannot be maintained.

Two grounds are relied upon by the respondent as the basis for maintaining the caveat namely:

(i) that the respondent’s half interest was conveyed to the applicant and her late husband to hold in trust for the caveator until the caveator was in a position to repay advances of approximately $6,000 to $9,000 made to the respondent by the applicant’s husband.

(ii) that pursuant to a mutual agreement made in or about 1997 between the Respondent and the applicant’s husband, the applicant’s husband agreed to transfer the land back to the Respondent by way of set off for monies and services owed by each other.

The first ground simply lacks substance. In the first place the copy of the deed of conveyance dated the 28th September 1990 conveying the respondent’s undivided half share in the land to the applicant and her late husband is attached as exhibit “A” to the applicant’s affidavit. There is not a slightest suggestion of a trust. In fact the concluding part of the deed states:

“NOW THIS DEED WITNESSETH that in consideration of the sum of THIRTY THREE THOUSAND TALA ($33,000.00) paid by the purchasers to the Vendor (receipt whereof is hereby acknowledged) the Vendor DOTH HEREBY CONVEY her undivided one-half (½) share interest or moiety in the said land to the purchasers TO HOLD the same unto the Purchasers as joint tenants”.

Other than the deed of conveyance which totally refutes the assertion of a trust there is no other documentary evidence which suggests the existence of any trust, express or implied. The first ground must therefore fail. But the respondent goes on to suggest that the land was to be held on trust until she has repaid the advances of approximately $6,000 to $9,000 made to her by the applicant’s husband. The assertion simply lacks sense and it is considerable effort to restrain one from making comment of a disparaging character against both the respondent and counsel for pursuing such a nonsensical claim. It does not warrant considerable commentary.

These advances according to the applicant’s affidavit were made in 1991 and 1992 after the land was conveyed. Exhibit “E” is a copy of an acknowledgement by the respondent dated 24th January 1991 that she borrowed Four Thousand dollars (NZ$4,000) from the applicant’s late husband and she agreed to pay the debt by the 24th March 1991 with interest at 15%. Exhibit “D” of the same affidavit speaks of two advances of Five Thousand ($5,000) on 19th June 1992 and Three Thousand ($3,000) on 7th July 1992 which the applicant say were to be set off against the purchase of the respondent’s former husband undivided half share of the land which the respondent sold to the applicant and her late husband in 1992 for $33,000.

The applicant’s affidavit was sworn on the 26th August 2004 and the respondent’s affidavit in reply was sworn on the 18th October 2004. Other than admitting paragraph 1 of the applicant’s affidavit which refers to the sale of her undivided half share of the land the respondent made no reference whatsoever to the advances as exhibited in the applicant’s affidavit. The omission is deliberate and I accept as undisputed fact that the respondent borrowed from the applicant’s late husband against the sale of her former husband’s undivided half interest. The first ground fails.

The second ground must necessarily suffer the same fate as the first one simply because the documentary evidence does not support it. The respondent relies firstly on a letter from her New Zealand Solicitor to her Samoan Solicitor which is exhibit “J” in the applicant’s affidavit and states:

“28th July 1999

Apa & Henare

Solicitors

Private Bag

Apia

Attention: Apa Tupa’i

Dear Sir,

Re : Montana Tanya Melton

I have received instructions from Mrs Melton to arrange the following:-

1. To complete the sub division of her property described in certificate of title 5/124 (copy attached).
2. To repurchase that part of the property purchased by Kurt Von Reiche and Eugenie Von Reiche.
3. To arrange a loan of $20,000 Tala from the National Bank of Samoa.
   

Would you please take action in respect of the above. I understand that the Von Reiche solicitors is Mr Stephenson of Apia and that the purchase price discussed is $9,000.

Yours faithfully

E. Johnston & Co.”

The letter was written on instructions from the Respondent herself. I have already made a critical finding against the respondent concerning her failure to address in her affidavit the documentary evidence of advances made to her by the applicant’s late husband. The letter of instructions was obviously not acted upon by the Samoans solicitor for very obvious reasons.

The respondent also alleges in her affidavit that she carried out services and incurred maintenance expenses without rendering any invoices whatsoever in looking after the applicant’s horses and farm at their former farm in Hellesville, New Zealand while the applicant and her husband were in Samoa. It is for those unpaid services she rendered which partly contributed to the applicant’s late husband’s decision to convey back her land.

It is agreed that this farm was sold in 1993 to the respondent and her current partner. Exhibit “F” of the applicant’s affidavit is a copy of a letter to the respondent and her partner from the solicitors for the applicant and late husband confirming the sale and the agreed price of $165,000 less $715 cash deposit and $14,285 being the balance of purchase price of the land. I accept that $14,285 is the equivalent in New Zealand currency of monies owing for the price of the respondent’s former husband’s half share in the land after deducting the advances to the respondent. Again the respondent ignored to respond in her affidavit to the applicant’s assertions and specifically to the letter of offer allegedly written to her and her partner concerning monies deducted and were deducted from the purchase price of the farm. So here again is documentary evidence which contradicts the assertions by the respondent. In fact the applicant and her late husband have in 1993 paid $33,000 to the respondent for the undivided half share of the respondent’s former husband in the land the ownership of which the respondent cannot transfer to the applicant. Again the assertions are simply baseless and unfounded.

As a consequence the respondent has not established a reasonably arguable case
to justify the continuing existence of the caveat.

It is ordered that the caveat be removed.

The respondent is ordered to pay costs of $500.00.

JUSTICE VAAI