Westpac Bank Samoa Ltd v Wulf [2005] WSSC 46 (11 February 2005)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER: of Caveat 910× affecting all that land at Tuanaimato described as Parcel 961 Flur V Upolu Volume 16 Folio 97 of which ANTHONY JOSEPH WULF is the registered proprietor and JANE WULF is the Caveator

BETWEEN:

WESTPAC BANK SAMOA LIMITED
a duly incorporated company having its registered office at Apia
Applicant

AND:

JANE WULF
of Tuanaimato, Businesswoman
First Respondent

AND:

The ATTORNEY GENERAL
for and on behalf of the Land Registrar, Ministry of Natural Resources & Environment
Second Respondent

Counsel: Mrs R Drake for the Applicant
Mr S Leung Wai for First Respondent
Mrs Va’a-Tamati for Second Defendant
Ms J Stowers for Celestial Waters

Hearing: 7 October 2004
Decision: 11 February 2005

DECISION OF JUSTICE VAAI

In March 1987 the first respondent and her husband obtained a loan from the applicant secured by a first mortgage over the husband’s land (hereinafter referred to as the land) on which the first respondent and husband have constructed a matrimonial home. In 1998 the land was again mortgaged to the Development Bank and to the National provident Fund to secure further advances. Repayment of the advances faltered to the stage that the applicant was obliged to exercise its power of sale under the mortgage. By deed of conveyance dated the 23rd September 2002 the land was sold by private sale to Celestial Water (Samoa) Limited at a price of four hundred and ten thousand talā ($410,000.00). To finance the purchase of the land Celestial Water (Samoa) Limited mortgaged back the land to the applicant. When the solicitor for the Celestial Water (Samoa) Limited deposited the deed of conveyance and mortgage for registration the second respondent issued a requisition to discharge the mortgages to the Development Bank and National Provident Fund on the register before the conveyance and mortgage can be registered. National Provident Fund discharged its mortgage but the Development Bank refused and on that basis the second respondent refused to register the conveyance and mortgage unless and until the mortgage to the Development Bank was discharged. Meanwhile the first respondent became aware of the sale of the land to Celestial Water Ltd and she lodged a caveat against the land alleging an equitable interest as a beneficiary pursuant to a constructive trust. It is that caveat which is the subject of the present application by the applicant. As it is worded the applicant seeks the following orders:

(1) That the caveat 910× be lifted temporarily to allow rectification of the Land Register in the manner hereinafter appearing.

(2) Directing the Second Respondent to register:

(i) the deed of conveyance pursuant to the default of the mortgagor between the applicant and Celestial Water (Samoa) Limited; and

(ii) the deed of mortgage from Celestial Water (Samoa) Limited to the Applicant.

(iii) Extinguishing mortgages to the Development Bank and National Provident Fund.

The application is commenced by a notice of motion and supported by two affidavits; one from an officer of the applicant and one from the then solicitor for Celestial Water (Samoa) Limited. In opposing the application the first and second respondents filed affidavits. Counsels have also filed extensively researched legal submissions which canvassed a whole range of legal issues but at the same time generally limiting the scope of the proceedings to a removal of caveat application. It is not an application for the removal of the caveat; the application seeks specific orders against the Second Respondent; orders to compel the Second Respondent to temporarily lift the caveat, to discharge the Development Bank mortgage and to register the deed of conveyance to Celestial Water (Samoa) Ltd and the deed of mortgage to the applicant. In reality the applicant is seeking a writ of Mandamus against the second respondent and the applicant must therefore comply with Rule 196 Supreme Court (Civil Procedure) Rules 1980 and commence these proceedings with a notice of motion accompanied by a Statement of Claim and supporting affidavit. The applicant has failed to comply with the rules, but even if it did comply there is still another flaw to which counsel for the first respondent has drawn my attention to in his written submissions; namely the failure of the applicant to cite the Development Bank as a party or to serve notice of the application on the Development Bank. One of the orders sought is to extinguish the Mortgage to the Development Bank so that the Development Bank is entitled as of right to be heard as the order sought will adversely affect the interests of the Bank.

For these procedural defects the application must fail. Pursuant to Rule 202 non compliance shall not render the proceedings void but the court is given the discretion to do a number of things.

In considering the appropriate action to take I bear in mind that Celestial Water (Samoa) Ltd as purchaser of the land has commenced proceedings against the applicant, the first and second respondents, the Development Bank and others arising from the sale of the land and the subsequent inability of Celestial Water (Samoa) Ltd to register the deed of conveyance due to the caveat. The first respondent and her husband have also commenced separate action against the applicant, Celestial Water (Samoa) Ltd and the second respondent in connection with the manner the mortgagees sale was conducted. Amongst the plethora of legal issues to be determined in the two separate actions is the legal status of the caveat which means that the efforts by all counsels in preparing the submissions in these proceedings will not be in vain as the legal submissions will be considered when the two actions filed are determined. Discourtesy is therefore not intended by not considering counsels written submissions at this stage, suffice to say that the submissions will certainly expedite the determination of the two actions.

In the circumstances the notice of motion by the applicant for orders to lift the caveat and to rectify the Land Register is struck out. Costs are reserved.

JUSTICE VAAI