Chan Chui & Sons Ltd v Pereira [2006] WSSC 34 (31 May 2006)

IN THE SUPREME COURT OF SAMOA
HELD IN APIA

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

AND

IN THE MATTER of Caveat No. 1053x against dealings in respect of Parcel 210, Flur III Upolu and L/R 10/61, Plan 69U/IIIS of which CHAN CHUI & SONS LIMITED is the registered Proprietor.

BETWEEN

CHAN CHUI & SONS LIMITED
a duly incorporated company having its registered office at Saleufi.
Applicant

AND

ANTHONY JOSE PEREIRA
of Alafua, Solicitor, c/- Fatialofa House, Saleufi.
Respondent

AND

THE ROMAN CATHOLIC BISHOP FOR THE TIME BEING
OF THE ARCHDIOCESE OF SAMOA
Third Party

Counsel: R Drake for applicant
T K Enari for respondent
H J Schuster for third party

Hearing: 25 May 2006
Judgment: 31 May 2006

JUDGMENT OF SAPOLU CJ

Proceedings

In these proceedings I have to deal by way of summary procedure with a motion by the applicant to remove a caveat lodged by the respondent against its land on Vaea Street at Taufusi in Apia which it wants to sell. For the purpose of the proceedings, both counsel for the applicant and the respondent rely on affidavit evidence. Even though the Roman Catholic Bishop For The Time Being Of The Diocese of Samoa has been cited as third party, the real contest is between the applicant and the respondent.

To understand the nature of the dispute between the applicant and the respondent and in order to determine whether to grant the applicant’s motion for removal of the respondent’s caveat, it is necessary to refer to the history of the two lands involved in this matter.

History of the lands involved

At the outset, I must say that the facts of this case are difficult to explain in a simple way. The applicant is a duly incorporated company. The respondent is the administrator of his late mother’s estate. The applicant and the respondent’s mother are adjoining landowners on Vaea Street at Saleufi in Apia. Their adjoining lands had originally formed part of a block of land at Saleufi owned by the third party.

In 1956 by a deed of lease dated the 5th of April 1956, the third party granted a lease of part of its said block of land at Saleufi to a company incorporated as F.M. Fatialofa Ltd for a term of twenty years to commence from the 1st day of August 1952. This company belonged to the father of the respondent’s mother. The principal land registry officer, Filisita Heather, who was called for the applicant produced the registered deed of the said lease which is still being kept in the custody of the land registry office. The land which was leased by the third party to F.M. Fatialofa Ltd is described in the schedule of the deed as follows:

THE SCHEDULE

ALL that piece or parcel of land containing an area of thirty-six point eight three perches (0a.0r.36.83p) more or less, situated at Saleufi, near Apia, in the District of Tuamasaga described as parcel 180/44, Flur III, Upolu, being a sub-division of parcel 44, and being part of Court Grant 166 and part of the land registered in VOLUME 1 FOLIO 250 of the Land Register of Western Samoa and more particularly delineated on Plan 54 U/III 8, deposited at the office of the Chief Surveyor at Apia, together with a right of way appurtenant thereto containing an area of one point seven two perches (0a.0r.1.72p) also being part of parcel 44 as coloured blue on the said plan 54 U/III 8.

The principal land registry officer also produced survey plan 2477 which was approved on the 9th day of December 1955 and which is referred to in the legal description of the land that is the subject of the deed of lease as plan 54U/IIIS. This survey plan 2477 shows parcel 180/44, which was leased to F.M. Fatialofa Ltd, as having a road frontage of 24.02 on Vaea Street. It was common ground between the applicant and the respondent that the 24.02 as mentioned is 24.02 metres. The same plan 2477 also shows a right of way which corresponds to the right of way referred to in the legal description contained in the deed of lease as the right of way appurtenant to parcel 180/44. It was also common ground between the applicant and the respondent that this right of way has a road frontage from Vaea Street of 2 metres.

In 1962 the third party, the Roman Catholic Bishop For The Time Being Of The Archdiocese of Samoa, by a deed of conveyance dated the 12th day of October 1962 conveyed to one Chan Chui of Taufusi, storekeeper, the parcel of land which has over it the said right of way. The principal land registry officer, Filisita Heather, also produced the deed of conveyance that was registered for the land transaction between the third party and Chan Chui and which is still being kept in the custody of the land registry office. The legal description of the land conveyed to Chan Chui is set out in the schedule to the deed of conveyance as follows:

THE SCHEDULE

ALL that piece or parcel of land containing an area of one rood two point three six perches (0ac.1r.2.36p), more or less, situated at Saleufi near Apia, District of Tuamasaga, described as Parcel 210, Flur III, Upolu, being part Court Grant 166 and part of the land registered in VOLUME 1 FOLIO 250 of the Land Register of Western Samoa as is more particularly delineated on Plan 69 U/IIIS deposited in the office of the Director of Lands SUBJECT to a right of way delineated thereon and coloured yellow.

The principal land registry officer also produced the survey plan which was approved on the 22nd day of November 1961 for the land which is referred to in the legal description contained in the schedule to the deed of conveyance from the third party to Chan Chui. This is survey plan 2685 which shows that parcel 210 was conveyed by the third party to Chan Chui and it has a road frontage of 22.0. It was also common ground between the applicant and the respondent that 22.0 as mentioned is 22.0 metres. Plan 2685 also shows the same right of way shown on survey plan 2477 for parcel 180/44 leased from the third party to F.M. Fatialofa Ltd. This same right of way is the one referred to in the legal description contained in the schedule of the deed of conveyance from the third party to Chan Chui. Plan 2685 also mentions a 'Memorandum of Easement' and then refers to parcel 210 conveyed to Chan Chui as the servient tenement and to parcel 180/44 leased to F.M. Fatialofa Ltd as the dominant tenement.

On the 31st day of July 1972 the lease from the third party to F.M. Fatialofa Ltd expired. As earlier mentioned F.M. Fatialofa Ltd was the company owned by the father of the respondent’s late mother. Then by deed of conveyance of the 2nd of October 1972, parcel 180/44 that was the subject of the lease to F.M. Fatialofa Ltd together with a smaller parcel of land to the rear were conveyed by the third party to the respondent’s mother. The same deed of conveyance also refers to the said right of way as appurtenant to parcel 180/44. The respondent’s mother passed away in 1983 and the respondent was granted probate of his mother’s will on 24 February 1989 so that he is now the administrator of his mother’s estate which includes the land that is parcel 180/44.

Parcel 210, on the other hand, was later conveyed by deed of conveyance dated the 25th day of August 1973 from Chan Chui to the applicant, Chan Chui & Sons Ltd, a duly incorporated company. The legal description contained in the schedule to this deed of conveyance still shows parcel 210 to be subject to the same right of way as already referred to.

Notwithstanding the survey plans and the various deeds of lease and conveyance produced from the land registry, the respondent produced as annexures to his affidavit of the 27th day of January 2006 two documents, both being photocopies, to support his claim that the land which forms the said right of way should have been conveyed by the third party to his late mother in 1972 and not to Chan Chui in 1962. As it presently stands, the right of way is part of parcel 210 which belongs to the applicant, Chan Chui & Sons Ltd. The applicant wants to sell parcel 210 but the respondent has lodged a caveat forbidding any dealing with it because the respondent claims that the right of way on parcel 210 should have formed part of the land conveyed by the third party to his late mother in 1972. Thus the caveat is effectively stopping the proposed sale by the applicant who is now seeking removal of the caveat.

In effect the photocopied documents produced by the respondent constitute a challenge to the correctness of the survey plans and the deeds based on those plans. For that reason, I asked both counsel for the applicant and the respondent to produce the originals of all the documents in issue. These include the survey plans, the various deeds already referred to, and the photocopied documents produced by the respondent. The applicant called the principal land registry officer who produced the originals of survey plans 2685 and 2477 and the original copies of the deeds of lease and conveyance already referred to which have been registered at the land registry office. The respondent, on the other hand, was not able to produce the originals or the original copies of the photocopied documents upon which his claim is based. This is for the reasons explained by the respondent in his affidavits of the 8th and the 9th of May 2006. With respect, I do not find these reasons convincing.

The first of the two documents produced by the respondent is a photocopy of what appears to have been a letter from the Catholic Mission to Chan Chui regarding the possible purchase by Chan Chui of his leasehold at Saleufi. The letter is dated 'December 13th' and the year appears to be '1961'. The first paragraph of the letter states that the Catholic Mission has finally received the approved survey plan of Chan Chui’s Saleufi leasehold which was offered to Chan Chui for purchase. This must be plan 69U/IIIS showed in the legal description of parcel 210 that was conveyed to Chan Chui by deed of conveyance dated the 12th day of October 1962. Plan 69U/IIIS which was produced by the principal land registry officer is the same as survey plan 2685. This plan was approved on the 22nd day of November 1961.

Paragraph 2 of the same letter of December 13th, 1961, from the Catholic Mission to Chan Chui then states that the width of the leasehold land offered to Chan Chui for purchase is 20 meters. This is inconsistent with the width of parcel 210 shown on survey plan 2685 as 22 metres plus 2 metres for the width of the right of way making a total of 24 metres. As already mentioned survey plan 2685 was approved on the 22nd day of November 1961 about 20 days before the letter of December 13th, 1961. So what we have here is an inconsistency within a document which is the first photocopy produced by the respondent. The inconsistency is that the first paragraph of the said letter refers to an approved survey plan which shows the land offered to Chan Chui for purchase to have a road frontage of 24 metres including a right of way of 2 metres wide, whilst the second paragraph of the same letter says that the width of the land offered to Chan Chui for purchase was 20 metres. The same inconsistency may also be seen as an inconsistency between two documents; these are plan 2685 which is earlier in time and shows the total width of parcel 210 as 24 meters and the letter of December 13th, 1961 which is later in time showing the width of the same land offered to Chan Chui for purchase to be 20 metres. In the circumstances, I am of the view that what is shown in survey plan 2685 kept in the custody of the land registry office is much better quality evidence compared to what is said in the photocopoied letter of December 13th, 1961 which seems to suggest that the width of the land offered to Chan Chui for purchase was 20 metres. As already mentioned, plan 2685 is earlier in time having been approved on the 22nd of November 1961 than the letter of December 13th 1961. The contents of the letter of December 13th, 1961 also show that not only does that letter contain an inconsistency within itself but the original or original copy from which it was supposed to have been photocopied cannot be produced. Counsel for the applicant also submitted that what is shown in survey plan 2685 to be the width of parcel 210 should be given move weight compared to what is said in the letter of December 13th 1961 by someone who was a lay person in survey matters. These matters affect the weight to be accorded to the letter of December 13th, 1961 as evidence.

The second document produced by the respondent appears to be a photocopy of a letter dated 11 March 1972 from the chairman of the land committee of the Roman Catholic Mission to the late mother of the respondent. Like the letter to Chan Chui, this letter to the respondent’s mother is also an offer to her to purchase the leasehold to F.M. Fatialofa Ltd which was due to expire on the 31st of July 1972. The second paragraph of this letter refers to 'The land – Parcel 180/44 Flur III' which is the parcel of land that was leased to F.M. Fatialofa Ltd. It also says that the front footage of the section is 26 metres. If this is correct as the respondent appears to be saying, then it would mean that the said right of way which forms part of the land conveyed by the third party to Chan Chui in 1962 should have been included in the land that was conveyed by deed of conveyance dated the 2nd of October 1972 from the third party to the respondent’s mother even though at that time the third party no longer owned the land which forms the right of way as that land had been conveyed to Chan Chui in 1962 as part of parcel 210. It would also effectively mean that the right of way would be extinguished if it is to become part of the land conveyed by the third party to the respondent’s mother in 1972.

However, if one refers to survey plan 2477 which was approved on the 9th of December 1955, about seventeen years before the photocopied letter of 11 March 1972, it shows parcel 180/44 as having a front footage of 24.02 metres and not 26 metres as mentioned in the letter of 11 March 1972. Thus the letter of 11 March 1972 to the respondent’s mother, like the letter of December 13th 1961 to Chan Chui, contains within itself an inconsistency. It says that the front footage of parcel 180/44 offered to the respondent’s mother for purchase is 26 metres but parcel 180/44 is shown on survey plan 2477 approved on the 9th of December 1955 as having a front footage of 24.02 metres and not 26 metres. The original from which the letter of 11 March 1972 was supposed to have been photocopied cannot also be found. So both documents produced by the respondent and upon which he relies for claiming an interest in the aforesaid right of way suffer from the same problem, that is, the originals from which they were supposed to have been photocopied cannot be found. This affects the weight to be given to the contents of the letter of 11 March 1972 as evidence. It was also submitted by counsel for the applicant that what appears in survey plan 2477 to be the front footage of parcel 180/44 conveyed to the respondent’s mother is better quality evidence and should be given more weight than the width given in the letter of 11 March 1972 from someone who was a priest and not a surveyor.

Surveyors opinions

Three registered surveyors have examined survey plan 2477 for parcel 180/44 owned by the respondent’s mother and survey plan 2685 for parcel 210 owned by the applicant and they are unanimous in their opinions as to the meaning of those survey plans. The first of these surveyors was Mr Collin Forbes of Piki Surveying Firm who was consulted by the respondent in 2000. In his report of 13 September 2000 to the respondent, Mr Forbes confirms to the respondent that the area of parcel 180/44 shown on survey plan 2477 and the areas of parcels 209, 210 and the right of way (easement) shown on survey plan 2685 are correct. Parcel 209 is not relevant for present purposes. Mr Forbes also says in his report to the respondent that the right of way which has a road frontage of 2.0 metres on Vaea Street is wholly over parcel 210, which is owned by the owner of parcel 210 (the present applicant) and that the respondent as owner of parcel 180/44 has the right of way over it only. Mr Forbes further says that both the respondent and his neighbour (the present applicant) have a 24 metres frontage onto Vaea Street but the respondent’s neighbour has exclusive rights over 22 metres of his 24 metres frontage and the respondent the right of way over the other 2 metres. Mr Forbes then goes on to say that he searched the original title documents of the land at the Lands, Survey and Environment and can find no evidence that the said right of way was created for any other purpose other than to allow the then lessee of parcel 180/44 access to the back of the building that was erected on parcel 180/44 at that time. The lessee mentioned here must have been F.M. Fatialofa Ltd, a company owned by the father of the respondent’s mother. Mr Forbes report is annexed to the respondent’s supplementary affidavit of the 8th of May 2006.

The second registered surveyor who examined the aforesaid survey plans is Mr Keilani Soloi who was consulted by the managing director of the applicant in or about 2000. In his affidavit of 15 January 2006, Mr Soloi says that survey plan 2477 is for parcel 180/44 and survey plan 2685 is for parcel 210. He also says that plan 2477 shows that parcel 180/44 has a roadside boundary of 24.02 metres wide and plan 2685 shows that parcel 210 has a roadside boundary of 24 metres wide inclusive of a right of way which is 2 meters wide. He further states that plan 2685 shows parcel 210 as the servient tenement and parcel 180/44 as the dominant tenement of the right of way which means that the land forming the right of way belongs to parcel 210 but only its usage as a means to egress and regress can be exercised by the owner of parcel 180/44.

The third registered surveyor who examined the aforesaid survey plans is Mr Piki Tuala, the principal of Piki Surveying Firm. The time of this examination by Mr Tuala seems to have been this year, 2006. He gives in his affidavit of 3 April 2006 the same opinion as to the meaning of survey plan 2477 and survey plan 2685 as his associate Mr Forbes. The only difference is that Mr Tuala, as it appears from his affidavit, was given copies of the two photocopied documents which have been produced by the respondent but whose originals or original copies cannot be produced. Mr Tuala states that what is stated in these photocopied documents is not reflected in the said survey plans. This of course is correct. But the evidential value of those photocopied documents is in issue. It is really upon these photocopied documents that the caveat and the case for the respondent is based.

Respondent’s caveat

By caveat 1053x dated the 19th of October 2005 registered on the 22nd of November 2005 the respondent has caveated the whole of parcel 210 even though it is clear that the only area in dispute is that included in the right of way. I will refer to this again later.

Essentially the basis of the respondent’s caveat is that the road frontage of parcel 180/44 that was conveyed by the third party to the respondent’s mother in 1972 is 24.02 metres but the photocopy of a letter dated 11 March 1972 from the third party to the respondent’s mother shows that the road frontage of the land that was offered for purchase by the third party to the respondent’s mother was 26 metres. In other words the conveyance did not reflect what was offered for purchase. What the respondent is therefore saying is that the right of way with a road frontage of 2 metres which is appurtenant to parcel 180/44 should have been part of the land conveyed to his mother. This is notwithstanding that the adjoining parcel 210 which includes the right of way had earlier been sold and conveyed by the third party to Chan Chui in 1962. The respondent’s answer to this is that the conveyance from the third party to Chan Chui, the applicant’s founder, was also in error as it shows a road frontage of 24 metres for parcel 210 but the photocopy of a letter dated December 13th 1961 from the third party to Chan Chui shows that the width of the road frontage of the land that was offered for purchase to Chan Chui was only 20 metres.

As it will appear later, I do not accept the photocopies which form the basis put forward by the respondent for his caveat given the clear and quality evidence to the contrary which is shown from the survey plans and the relevant deeds. With respect, the photocopies produced by the respondent and their condition do not inspire confidence in their authenticity without the originals being produced.

The relevant law

The first question is whether the respondent in this case is a person who may lodge a caveat against dealings with the land in dispute. In Guardian Trust and Executives Co NZ Ltd v Hall [1938] NZLR 1020, Gallan J in delivering the judgement of the New Zealand Court of Appeal said at pp1025-1026:

'A caveat is the creature of statute and may be lodged only by a person upon whom a right to lodge it has been conferred by statute. It is not enough to show that the lodging and continued existence of the caveat would be in some way advantageous to the caveator. He must bring himself within s.146 of the Land Transfer Act [1915]. In this case he must bring himself within para. (a) of that section – that is to say, he must show that he is a person entitled to or beneficially interested in the land against which he has caveated 'by virtue of some unregistered agreement or other instrument or transmission, or of a trust express or implied, or otherwise howsoever.''

A similar statement about who may lodge a caveat against dealings with land was also made by Stout CJ in delivering the judgment of the New Zealand Court of Appeal in the earlier case of Staples & Co Ltd v Corby [1900] 19NZLR 17 at pp536-537. Section 146(a) of the Land Transfer Act 1915 (NZ) is very similar to the wording of s.21(1)(a) of the Samoa Land Registration Act 1992/1993 so that what was said in Guardian Trust and Executors Co NZ Ltd v Hall regarding who may lodge a caveat against dealings with land would be relevant to the interpretation of s.21(1)(a).

In the recent case of Cotton v Keogh [1996] 3 NZLR1, Blanchard J in delivering the judgment of the New Zealand Court of Appeal said at p.8:

'A person ‘claiming’ to be entitled to an interest in land may lodge a caveat... It is not necessary that the claimant actually has the claimed interest.'

In the present case the respondent in lodging his caveat is claiming to be entitled to an interest in the disputed right of way. There was no dispute that the respondent is not a person who may lodge a caveat. One may therefore proceed on the basis that the respondent is a person who has a right to lodge a caveat in this case.

In terms of the way these proceedings were presented by counsel for the applicant and argued by both counsel for the applicant and the respondent, the next question is whether the respondent’s caveat should be removed. This requires reference to the relevant statutory provision. Section 24 of the Land Registration Act 1992/1993 which is the relevant statutory provision provides:

(a) Upon the receipt of any caveat the Registrar shall enter a memorial thereof in the Land Register and shall give notice of the same to the person against whose estate or interest the caveat has been lodged;

(b) The person to whom such notice is given or any other person having any registered estate or interest in the estate or interest protected by the caveat may, if he thinks fit, apply to the Supreme Court or a Judge thereof for an order that the caveat be removed;

(c) Such Court or Judge, upon proof that notice of the application has been served on the caveator or the person on whose behalf the caveat has been lodged, may make such order as the Court or Judge deems just.

In determining whether removal of a caveat should be ordered under s.24 of the Land Registration Act 1992/1993, the approach which this Court has taken in the past following Sims v Lowe [1988] 1NZLR 656 is that the onus is on the caveator to show that he has a reasonably arguable case for the interest he claims to support his caveat. If the caveator is able to discharge that onus his caveat will remain but if he fails removal of the caveat will be ordered: see Public Trustee v Lio Miti et al (1995) (unreported judgment of Sapolu CJ delivered on 10 July 1995); ANZ Bank (Samoa) Ltd v Fatupaito [2001] WSSC 31 per Vaai J; Samoa National Provident Fund v Stanley [2003] WSSC 48 per Vaai J. The relevant passage in Sims v Lowe [1988] 1NZLR 656 is from the joint judgment of Somers and Gallen JJ delivered by Somers J where His Honour states insofar as relevant at pp. 659-660:

'It is clear that this summary procedure for the removal of a caveat against dealings is wholly unsuitable for the determination of disputed questions of fact. From this it follows, and has been consistently held, that an order for the removal of such a caveat will not be made under s.143 unless it is patently clear that the caveat cannot be maintained either because there was no valid ground for lodging it or that such valid ground as then existed no longer does so...The patent clarity referred to will not exist where the caveator has a reasonably arguable case in support of the interest claimed... The caveator seeks to clog or fetter the proprietary interest of another. As a matter of principle it seems right that he must justify the continued existence of his caveat. He will do that if he can show he has a reasonably arguable case for the interest he claims.'

Section 143 of the Land Transfer Act 1952 (NZ) to which that passage relates is similar to s.24 of the Land Registration Act 1992/1993. Another comment that needs to be made about the passage cited from the judgement of Somers and Gallen JJ in Sims v Lowe is that what is said there about the summary procedure for removal of a caveat being wholly unsuitable for the determination of disputed questions of fact would have to be read together with the qualification stated in Barrett v IBC International Ltd [1995] 3NZLR170. In Barrett Cooke P in a judgment concurred in by the other two members of the Court states at p. 175:

Evidently the learned Master was inclined not to rule out the possibility that this new allegation might be credible. I am afraid that I am unable to take as generous a view. On the contrary, the case seems transparently to be one for application of Lord Diplocks well-known statement in Eng Mee-Yong v Letchumanan s/o Velayutham [1980] AC 331, 341:

'’Although in the normal way it is not appropriate for a Judge to attempt to resolve conflicts of evidence on affidavit, this does not mean that he is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents, or other statements by the same deponent, or inherently improbable in itself it may be.’

'That proposition has been acted on in this Court more than once. It is sufficient to refer to Bilbie Dymock Corporation v Patel [1987] NZCA 193; (1989) 1 PRNZ 84, 86, where encouragement was found in Lord Diplock’s words for adopting a robust and realistic judicial attitude in a summary judgment proceeding. It is material to add that Lord Diplock was actually speaking in a case about the sustainability or otherwise of a caveat.'

In Barrett, the New Zealand Court of Appeal applied the reasonably arguable case test in determining whether a caveat should be allowed to lapse under s.145 of the Land Transfer Act 1952 (NZ). It was held that no reasonably arguable case had been made out for prolonging the existence of the caveat so that it was allowed lapse. Section 25 of the Land Registration Act 1992/1993 makes similar provision for the lapse of a caveat as s.145 of the Land Transfer Act 1952 (NZ). Thus it is highly arguable on the authority of Barrett that the reasonably arguable case test which applies to an application for removal of a caveat under s.24 of the Land Registration Act 1992/1993 is also applicable to an application under s.25 for a caveat not to lapse. See also Sims v Lowe [1988] 1NZLR 656, 660 where Somers and Gallen JJ said that the reasonably arguable test applies to both s.143 and s.145 of the Land Transfer Act 1952 (NZ).

There is another matter of legal principle to which I wish to refer. This concerns the objection made on behalf of the applicant that the respondent is claiming an interest only to part of the applicant’s land, namely, the right of way or easement over part of the applicant’s land. However, the respondent has caveated the whole of the applicant’s land. As I understand counsel for the applicant, she was saying that if the respondent is claiming an interest only to the right of way on the applicant’s land then his caveat should have been limited only to that part of the applicant’s land. The caveat should not have extended to the whole of the applicant’s land. The relevant legal principles are found in Taylor v Couchman [1995] 3NZLR 336 where Tompkins J stated at p.341:

'Closer to the present circumstances is the judgment of Master Hansen in Mortimer v Baylis ..... A caveat was lodged against a certificate of title in reliance on a claimed agreement that the registered proprietors had agreed to sell one building site, being part of the land in the title. Master Hansen at p.6 of the unreported judgment referred to what he described as the fundamental problem that related to the caveat purporting to be over the whole of the land, whereas the caveators could only claim an interest in one very small section. He concluded that the failure to particularise the land for which the interest was claimed was fatal to the sustaining of the caveat.

In Australia there has been some controversy whether a caveator, in order to preserve the caveat from attack based on the failure to comply with statutory requirements, needed to specify the quantum of the interest claimed, for example the proportionate share which the caveator claimed as tenant in common.... In Re Paul (1902) 19 WN (NSW) 114 Pring J held that a caveat forbidding dealings with the whole of the land, when the claim was to an easement affecting only a small portion of that land, was too large and should be removed. That approach was followed by Douglas J in Powell. And in Vandyke v Vandyke (1976) 12 ALR 621 Mahoney J at p. 644 referred to the specification of the estate or interest claimed as being significant in determining whether the width of the proscription embodied in the caveat is no more than appropriate.

The principle has been again affirmed in Kerobee Park Pty Ltd v Daley [1978] 2 NSWLR 222. Holland J declined to follow Gasiunas. He observed at p.228 that the right to caveat is given for the purpose of protecting the caveators interest from being defeated by the registration of a dealing without the caveator having had an opportunity to invoke the assistance of the Court to give effect to his interest. He concluded that a caveator should have no right to prohibit registration of a dealing to which his alleged interest in the land would not entitle him to object, if he were to invoke the assistance of the Court. To a similar effect is the view expressed by Hart J, delivering the judgment of the Full Court of Queensland in Queensland Estates Pty Ltd v Co-Ownership Land Development Pty Ltd [1969] Qd R 150, 155. A tenant in common of an undivided one quarter share of the fee simple had lodged a caveat against the whole of the land forbidding registration of any instrument affecting the land contained in the title. Hart J observed at p.155 that a person is given a right to caveat to protect his interest in the land, and the registered proprietor is to be left to deal freely with the remaining interest in the land. The Full Court held that the caveat was too wide and could not be allowed to remain in its present form.'

After discussion of the relevant Australian authorities, Tompkins J concluded at p.341:

'It is my opinion, based on the authorities to which I have referred, that a person claiming to be entitled to an interest in part of the land in a certificate of title, is entitled to lodge a caveat to protect that interest only in respect of that part of the land to which that interest attaches. That part should be identified either by description or by a plan. The caveator is not entitled, because he or she claims an interest in part of the land, to lodge a caveat against the whole of it, thereby preventing the registered proprietor from dealing in any of the balance. The caveator's caveatable interest is limited to that part of the land in which an interest can properly be claimed.'

The judgment of Tompkins J was reversed by the New Zealand Court of Appeal on other grounds but his conclusion which I have cited was not affected: see Couchman v Taylor (1996) 3 NZ Conv Cases 192, 341. It is also to be noted that a different principle may, however, apply in the case of a purchaser of part of a parcel of land to be subdivided: see vol 1 Land Law in New Zealand (2003) 2nd ed by Hinde, McMorland and Sim p.591. On the question of whether the Court has jurisdiction to allow a defective caveat to be amended, again see Land Law in New Zealand (supra) at p.591.

It should also be noted here that the New Zealand Court of Appeal has held that even if the caveator is able to show an arguable case for the interest claimed to support his caveat, the Court still has a residual discretion to order removal of the caveat where there is no practical advantage in maintaining the caveat. Such a discretion will have to be exercised with caution. In Pacific Homes Ltd v Consolidated Joineries Ltd [1996] NZCA 264; [1996] 2 NZLR 652. Blanchard J in delivering the judgment of the New Zealand Court of Appeal said at p.656:

'We are of the view that in the dictum in Sims v Lowe Somers and Gallen JJ were concerned with the situation which was then before the Court and were not putting their minds to a situation in which there is no practical advantage in maintaining a caveat lodged by someone who could properly claim a caveatable interest. In such circumstances the Court retains a discretion to make an order removing the caveat, though it will be exercised cautiously. An order will be made for removal only where the Court is completely satisfied that the legitimate interests of the caveator will not thereby be prejudiced.'

The issue referred to here about the discretion of the Court to order removal of a caveat even though an arguable case has been shown to support the interest claimed by the caveator was not raised in these proceedings. However, it is an issue which is worth bearing in mind in an application made in an appropriate case for removal of a caveat under s.24 of the Act.

Discussion

The essential facts are as follows. Survey plan 2477 which was approved on the 9th of December 1955 of parcel 180/44 shows that parcel 180/44 has a road frontage of 24.02 metres. This was part of a block of land which then belonged to the third party. The same plan also shows a right of way 2 metres wide appurtenant to parcel 180/44 but the right of way was not part of the land in parcel 180/44. By a deed of lease dated the 5th of April 1956 the third party granted a lease for 20 years of parcel 180/44 to F.M. Fatialofa Ltd which was a company owned by the father of the respondent’s mother. This lease was to commence from the 1st of August 1952.

In 1962 by deed of conveyance dated the 12th of October 1962 the third party, the then owner of the land, conveyed to one Chan Chui of Taufusi, storekeeper, parcel 210 which adjoins parcel 180/44 and has over it the said right of way. Survey plan 2685 for parcel 210 shows parcel 210 to have a road frontage of 24 metres inclusive of the right way which has a width of 2 metres. Plan 2685 also refers to that right of way and to parcel 210 conveyed to Chan Chui as the servient tenement and to parcel 180/44 leased to F.M. Fatialofa Ltd as the dominant tenement. This means that the right of way is over parcel 210 but the owner of parcel 180/44 has only a right of way over it.

On the 31st of July 1972 the lease of parcel 180/44 from the third party to F.M. Fatialofa Ltd expired and by deed of conveyance dated the 2nd of October 1972 parcel 180/44 was conveyed by the third party to the mother of the respondent. The legal description in that deed of conveyance also refers to the said right of way as appurtenant to parcel 180/44. Parcel 210, on the other hand, was conveyed by deed of conveyance dated the 25th of August 1973 from Chan Chui to the applicant. The legal description in that deed of conveyance still shows parcel 210 to be subject to the same right of way as already mentioned.

If matters had stood there, there should have been no dispute that the right of way is over parcel 210 which is now owned by the applicant but the owner of parcel 180/44 would have only the usage of the right of way. However, the respondent produced photocopies of two letters upon which he is basing his claim that the right of way should be part of the land (i.e. parcel 180/44) conveyed by the third party to his mother by deed of conveyance dated the 2nd of October 1972.

As earlier pointed out, the first of these photocopies is a photocopy of a letter dated the 13th of December 1961 said to have been sent by the third party to Chan Chui offering for purchase to Chan Chui a leasehold land with a road frontage of 20 metres. This is quite inconsistent with survey plan 2685 of parcel 210 conveyed to Chan Chui which was earlier approved on the 22nd of November 1961. That survey plan, as also earlier pointed out, shows the right of way to be part of parcel 210 and expressly states that parcel 210 is the servient tenement and parcel 180/44 is the dominant tenement. The same photocopied letter is also inconsistent with the legal description of the land shown in the deed of conveyance of 13th October 1962 from the third party to Chan Chui.

What the respondent is in effect claiming here is that survey plan 2685 and the deed of conveyance of 12th October 1962 both contain a mistake as they show that the land conveyed to Chan Chui has a road frontage of 24 metres inclusive of the right of way whereas the photocopied letter from the third party to Chan Chui shows that the land which was offered for purchase by the third party to Chan Chui has only a road frontage of 20 metres. Given this inconsistency, I asked both counsel for the applicant and the respondent to produce the originals of the documents they are relying on. Counsel for the applicant called the principal land registry officer who produced the originals of the relevant deed of lease, deeds of conveyance and survey plans earlier referred to which are kept in the custody of the land registry office whereas counsel for the respondent was not able to produce the original of the photocopied letter said to have been sent by the third to Chan Chui. The explanation for this given by the respondent in one of his affidavits is, with respect, unsatisfactory. The condition of the photocopy also does not enable me to accept its authenticity with the necessary degree of confidence without seeing the original.

In the normal way, it is not appropriate to resolve conflicts in the evidence on affidavits alone. However, as Cooke P in Barrett v IBC International Ltd [1995] 3 NZLR 170, 175, following Lord Diplock in Eng Mee-Yong v Letchumanan s/o Velayutham [1980] AC 331, 334 pointed out, a Judge is not bound to accept uncritically as raising a dispute of fact which calls for further investigation every statement in an affidavit however equivocal, inconsistent with contemporary documents, or inherently improbable in itself it may be. On that basis I have decided to accept the official documents kept in the custody of the land registry office and not the photocopied letter produced by the respondent as an annexure to one of his affidavits. Taking an overall view of the history of the two parcels of land and the right of way involved in this case, I am also of the clear view that the right of way in question is over the land owned by the applicant and the respondent and those people he represents as administrator of his mother’s estate would have only the usage of the right of way. In other words there is no evidential conflict which raises a question of fact that calls for further investigation. I have been able to resolve the conflict in the documentary evidence on the basis of the material placed before the Court.

I have also decided not to accept the second photocopied letter relied upon by the respondent to support the interest he is claiming. This is the photocopy of what appears to be a letter dated 11 March 1972 from the third party offering for purchase to the respondent’s mother parcel 180/44 which was the land that was leased to F.M. Fatialofa Ltd. It is also said in that letter that the land offered to the respondent’s mother for purchase has a front footage of 26 metres. Because of this, the respondent is in effect saying that the deed of conveyance by which parcel 180/44 was conveyed from the third party to his mother contains a mistake as the land that was conveyed has only a road frontage of 24.02 metres which is inconsistent with the front footage of 26 metres mentioned in the letter of 11 March 1972. What is implicit here from the affidavit evidence of the respondent is that the land that was offered for purchase to his mother should have included the said right of way which has a road frontage of 2 metres so that the deed of conveyance would reflect what was offered in the letter of 11 March 1972 which was a land with a front footage of 26 meters.

It is quite clear from the letter of 11 March 1972 that the land that was offered for purchase to the respondent’s mother was parcel 180/44 which was the same land that was formally leased by the third party to F.M. Fatialofa Ltd, a company owned by the father of the respondent’s mother, in 1956 for a term of 20 years commencing from 1952. This implies that F. M. Fatialofa Ltd had been leasing parcel 180/44 since 1952. Survey plan 2477 for parcel 180/44 which was approved on the 9th of December 1955 shows parcel 180/44 with a road frontage of 24.02 metres and a right of way with a road frontage of 2 metres appurtenant thereto. This right of way could not have been part of parcel 180/44 as it existed in 1955 because if it was then it would not have been a right of way but part of the land forming parcel 180/44. The legal description in the deed of lease of the 5th of April 1956 shows that the land that was leased from the third party to F.M. Fatialofa Ltd was parcel 180/44 as more particularly delineated on plan 2477. And plan 2477 shows parcel 180/44 to have a road frontage of 24.02 metres. The legal description in the deed of lease also refers to a right of way appurtenant to parcel 180/44 which suggests that the right of way is not part of parcel 180/44. It is this same parcel 180/44 that was offered for purchase by the third party to the respondent’s mother as it appears from the photocopied letter of 11 March 1972. It is also the same parcel 180/44 that was conveyed by the third party to the respondent’s mother by deed of conveyance of the 2nd of October 1972. So where does this parcel 180/44 with a front footage of 26 metres mentioned in the same photocopied letter of 11 March 1972 come from. It is quite inconsistent with the road frontage of 24.02 metres shown on plan 2477 for parcel 180/44. What is implicit in the respondent’s affidavit evidence that the front footage of 26 metres mentioned in the said letter should include the right of way is also quite inconsistent with the fact that the third party had already conveyed parcel 210 which includes the right of way to Chan Chui in 1962. It is most improbable that the third party would offer the right of way for purchase to the respondent’s mother in 1972 when it knew or ought to have known that it had already conveyed the land forming that right of way to Chan Chui in 1962. That would be tantamount to the third party offering for sale to the respondent’s mother a piece of land it no longer owned.

Because of the difficulties referred to, I asked both counsel for the applicant and the respondent to produce the originals of the relevant documents. As earlier mentioned, counsel for the applicant called the principal land registry officer who produced the originals of the relevant deed of lease, deeds of conveyance, and survey plans kept in the custody of the land registry office whereas counsel for respondent was not able to produce the original of the said photocopied letter of 11 March 1972. Applying what was said by Cooke P in Barnett v IBC International ltd [1995] 3 NZLR 170, 175, following Lord Diplock in Eng Mee-Yong v Letchumanan s/o Velayutham [1980] AC 381, 334, I have decided to accept the official documents kept in the custody of the land registry office and not the photocopied letter of 11 March 1972 produced by the respondent as an annexure to one of his affidavits. I have been able to resolve the conflict in the documentary evidence on the basis of the material placed before the Court without the need for further investigation.

It follows from what I have said that the respondent as caveator has not shown that he has a reasonably arguable case for the interest he claims to support his caveat. Accordingly, the caveat ought to be removed.

In view of the conclusion I have reached that the caveat ought to be removed, it is not necessary for me to consider whether the caveat should be removed on the basis that the interest claimed by the respondent relates only to that part of parcel 210 which forms the right of way whereas the caveat has been lodged against the whole of parcel 210 owned by the applicant. It also follows that it is not necessary for me to consider whether the Court has power to amend a caveat that is lodged against the whole of a registered proprietor’s land even though the interest claimed relates only to part of it.

For the foregoing reasons, removal of the respondent’s caveat is ordered.

Counsel to file memoranda as to costs within 21 days.

CHIEF JUSTICE