IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:
of Caveat No. 25959 affecting Lot 318 on Plan 2530 at Moto'otua of which the Public 
Trustee is registered as Administrator of the Estate of DAVID STOUT PARKER

BETWEEN:

BEATRICE AFELE
of Palisi, Business Woman and
FLORY SHIRLEY ABIGAIEL LAM
of Singapore, Education Consultant
Applicants

AND:

SU'A HENRY FRUEAN
of Moto'otua, Businessman and the Estate of
DAN PARKER
late of Saleimoa, Deceased
Respondents

Presiding Judge: Justice Slicer

Counsel: R Drake for the Applicants
M V Peteru for the Respondents

Hearing: 14 May 2010
Written Submissions: 14 May 2010
Judgment: 11 June 2010

JUDGMENT OF SLICER J

1. The Applicants seek the Removal of Caveat 25959X registered by the Respondent as the Executor of the estate of Dan Parker.

2. The general history of the proceedings is set out in the judgment of this Court in Beatrice Afele and Flory Lam v Public Trustee (10 June 2010) and requires no repetition.

3. These proceedings are determined on the basis of the material provided in the competing and untested affidavits and evidence provided by the parties. It is not concerned with an eventual outcome of the disputation but with the existence of an arguable case. The proceedings are summary (Air New Zealand v Higginson [1993] WSSC 23) and any factual disputation remain ones of substance to be determined at trial. The question for this Court is whether the Caveator can show that he or she has an arguable case for maintaining the caveat (Zhong v Wang [2006] NZCA 242).

4. Flory Abigail Lam was the niece of Esau Fruean who transferred to her, his 1/12th interest in land in which his predeceased wife Abigail Fruean had an interest. Esau, the widower of Abigail, had transferred his interest in the land to Flory by a Deed of Gift (or one for the nominal consideration of ST$10) dated 22 June 1999.

5.	Abigail Fruean had died intestate and her assets were to be apportioned according to the provisions of the Administration Act 1952 section 56, as at the date of her death.

6.	The Respondent is the Administrator of the estate of Dan Parker from whom Abigail Fruean had inherited a 1/12th share in the land, Lot 318 on Plan 2530. Abigail's husband, Esau Fruean was entitled, on her intestacy, to an interest in her estate. He assigned his interest in the land not to the estate but, to Flory Fruean, his niece and the Second named Applicant.

7.	The original conveyance between the Public Trustee and the Second Applicant remained unregistered. One of the disputes involving that conveyance concerned the claim by Abigail's descendants that they were entitled to receive a share of Abigail's estate and that any transfer by their father Esau was invalid. The respondent lodged a caveat to protect the 1/12th share in the land of potential beneficiaries of Abigail's estate. He lodged the caveat as a person anticipating that he would become the Administrator but had yet to be appointed. The Respondent is correct in defending his right to lodge the caveat and to contest the removal of the caveat. Given my determination, it is not necessary to dismiss the application on the basis of 'standing'. Such would merely further deplete the estate, through a resulting costs order without providing answer to the substantive issue. Flory Abigail Lam seeks the removal of those claimed protective interests.

8.	Esau had no clear right to transfer his inherited interest in Abigail's property to the Second Applicant. He had consented to the surrender of his interest in the land and later revoked that surrender in 2007. His consent and revocation are of no import in these proceedings. Counsel for the Respondent contended that Esau's transfer was valid since it represented the whole of any legal and equitable interest in the estate.

9.	The Applicants relied on a right established by the statutory exhaustion of the assets of Abigail's estate. Abigail had died intestate and her property devolved in accordance with the Administrative Act 1952 (NZ) section 56. 

That section relevantly provides: 

"Succession to real and personal estate on intestacy - (1) Where any person died intestate as to any real or personal estate, that estate shall be distributed in the manner or be held on the trusts mentioned in this section, namely;

(a) If the intestate leaves a husband or wife, the surviving husband or wife shall take the person chattels absolutely, and, in addition, the residue of the estate shall stand charged with the payment of a sum of one thousand pounds to the surviving husband or wife with interest thereon from the date of the death at the rate if four percent per annum until paid or appropriated, and subject to providing for that sum and the interest thereon, the residue of the estate shall be held, -

(i) If the intestate leaves issue, in trust as to one-third for the surviving husband or wife absolutely, and as to the other two-thirds on the statutory trusts for the issue of intestate…"

10.	The Respondent relied on the existence of a 'floating equity' as analysed by the learned Chief Justice in Lafaele v Vito [2001] WSSC 2. It is not necessary in this case, to be determined on an 'arguable' case basis, to consider the extent of a floating equity.

11.	The Applicants contend that on any approach to the value of the land, the statutory entitlement of Esau and the interest component, the residue would have been exhausted at the time of the Deed of Transfer to Flory Abigail Lam. That contention may prove on the hearing of a substantive trial to be correct. That question does not affect the right of the Respondent to protect an arguable interest. The test is that applied by the principles stated in Air New Zealand v Higginson [1993] WSSC 23.

12.	The validity of the Deed of Transference or assignment to the Second Applicant has been discussed in Beatrice Afele and Flory Lam v Public Trustee (10 June 2010) and is here adopted.

LAND REGISTRATION ACT

13.	The Respondent relies upon the provision of the Land Registration Act 1992 section 24 as requiring notice to the Public Trustee of the application. Given the determination of this Court, it is not necessary to consider the import of the legislation or the principles discussed in Toleafoa v Ben [2008] WSSC 62. Determination of standing would not have dealt with the substance of the dispute with an ultimate detriment to the assets of the estate. Solicitors and counsel ought to bear in mind that the justice of the causes might not be obtained if there are no assets remaining in the estate after the deduction of costs associated with an estate.

14.	The Respondent has established an arguable case on behalf of beneficial beneficiaries. The Applicants have not shown that the caveat ought to be removed.

15.	The application is dismissed.

JUSTICE SLICER