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Zinck v Voight [2018] WSSC 113 (12 October 2018)

THE SUPREME COURT OF SAMOA
Zinck v Voight [2018] WSSC 113


Case name:
Zinck vs Voight


Citation:


Decision date:
12 October 2018


Parties:

DANNY ZINCK (Plaintiff) of Vaitoloa, Apia and New South Wales, Australia v RAYMOND CHRISTIAN VOIGHT of Pesega Samoa
(Defendant)
Hearing date(s):
26-27 February 2018
1-2 March 2018
15 June 2018


File number(s):



Jurisdiction:
Civil


Place of delivery:
The Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Tafaoimalo Leilani Tuala-Warren


On appeal from:

Order:

The plaintiff is not the correct administrator of the estate of Friedrich Hunt. The order of the Court which granted letters of administration to the plaintiff on 13 December 2013 is therefore rescinded pursuant to Rule 65 of the Rules and is revoked forthwith. The plaintiff is removed as the administrator of the estate of Friedrich Hunt.
This plaintiff became registered owner of the ½ share of tenant in common with the defendant on the basis of this grant of administration. As the grant is rescinded, his registration on the land in dispute is cancelled by order to the Registrar of Land pursuant to section 87(1)(2) and (3) of LTRA.
The defendant is invited to file an application for administration of the estate of Friedrich Hunt, if he so wishes. The plaintiff’s Statement of Claim is dismissed in its entirety.
The defendant being wholly successful in defending this claim, and in particular in revoking the letters of administration granted to the plaintiff, and removing him as administrator, is invited to submit a Memorandum as to Costs within 21 days of the delivery of this decision. The plaintiff is invited to file a Memorandum in response within a further 7 days.


Representation:
R Schuster for the Plaintiff
K Koria for the Defendant
Catchwords:

Words and phrases:
Legislation cited:
Administration Act 1975 (“AA”)
Supreme Court (Civil Procedure) Rules 1981
Administration Act 1969, Section 21(1
Cases cited:
Lowrey v Jonathan [2016] NZHC 1166( 1 June 2016
Lee v Archer [2012] NZHC 3308(7 December 2012)
Crick v McIlraith [2012] NZHC 1290
Farquhar v Nunns [2013] NZHC 1670
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


BETWEEN


DANNY ZINCK
Plaintiff


A N D


RAYMOND CHRISTIAN VOIGHT male of Pesega Samoa
Defendant


Counsel:
R Schuster for the Plaintiff
K Koria for the Defendant


Reserved Decision: 12 October 2018


RESERVED DECISION

Brief Factual Background

  1. John and Sa Hunt of Vaitoloa who were married on 15 August 1867, had 13 children. Their land at Vaitoloa was divided amongst their children.
  2. The plaintiff is descended from Edwin Hunt, the sixth child of John and Sa and the defendant is descended from Emma Hunt, the tenth child of John and Sa.
  3. Emma Hunt’s land was held by Friedrich Hunt and Jane Johnson in equal shares as tenants in common (‘the land in dispute”). This land is shown on Flur Plan 4B.
  4. Friedrich Hunt and Jane Johnson are both deceased.
  5. The defendant was granted letters of administration in respect of the estate of Jane Johnson who is his grandmother on 11 July 1997. He lives on the land in dispute.
  6. On 13 December 2013, on application by the plaintiff to the Supreme Court, the Supreme Court granted him letters of administration in respect of the estate of Friedrich Edwin Hunt. On 30 April 2014, the plaintiff as Administrator of the estate of Friedrich Edwin Hunt transmitted Friedrich Hunt’s share of the land to himself.
  7. At its simplest, this is a dispute between the administrator of Friedrich Hunt’s estate who is the plaintiff, and the administrator of Jane Johnson’s estate, who is the defendant. The plaintiff and defendant are now tenants in common in half share in the land in dispute.
  8. It is important to note at the outset, that the grant of administration to the plaintiff proceeded on the understanding that Friedrich Hunt is the same person as the plaintiff’s ancestor, Edwin Hunt, allegedly known as Friedrich Edwin Hunt (‘FEH’). This is the plaintiff’s contention which is vehemently denied by the defendant. The defendant says that Edwin Hunt and Friedrich Hunt are two separate persons and that Edwin Hunt, the plaintiff’s ancestor is different from Friedrich Hunt whose name is on the estate of Emma Hunt. The defendant also says there was no one known as FEH.
  9. The plaintiff commenced these proceedings as he wishes to subdivide the land in dispute into equal half shares, and the defendant disputes the plaintiff’s administration of the estate of Friedrich Hunt.

The Proceedings

  1. These proceedings were initially filed by the plaintiff to seek an injunction to stop the defendant from blocking him and surveyors from entering the land, to stop the defendant from blocking him from subdividing the land, to disclose all financial transactions and statement concerning the land, to pay to plaintiff at least half the earnings and income derived from commercial leases and transactions from 1998, to pay to the plaintiff half the compensation from government for the taking of land for the road, and costs (Statement of Claim in Support of Motion for an Interim Injunction dated 9 November 2016).
  2. By way of Statement of Defence, the defendant says that the plaintiff has wrongly acquired half share tenant in common by falsely claiming that his great great grandfather Edwin Hunt was also known as FEH, whereas Edwin Hunt and Friedrich Hunt are two separate persons. The defendant prays for the refusal of the interim injunction, a dismissal of the plaintiff’s claim, revocation of the letters of administration granted by the Court to the plaintiff dated 13 December 2013, the plaintiff’s name be removed from the Land Registry as the registered proprietor of half interest shares in the land of Friedrich Hunt and Jane Johnston and full indemnity costs.
  3. On 26 May 2017, the parties agreed to maintain the status quo and for the matter to proceed to a substantive hearing, without the need for an interim injunction.

The issues

  1. The plaintiff pleads to be allowed to subdivide the land in dispute, to be given disclosure by the defendant of all financial transactions and statement concerning the land, for the defendant to pay to him least half the earnings and income derived from commercial leases and transactions from 1998, and for the defendant to pay to him half the compensation from government for the taking of land for the road. The plaintiff seeks to carry out actions in relation to the land in dispute on the basis that he is now registered proprietor of an undivided half share. He became registered proprietor through gifting the land to himself as administrator of the estate of Friedrich Hunt. The defendant seeks to revoke the grant of the letters of administration by the Court to the plaintiff.
  2. The plaintiff’s status as administrator must be established for him to be entitled to what he is claiming. There is a challenge from the defendant to the plaintiff as administrator. Therefore the first issue to be determined in this case is whether the plaintiff is the correct administrator of Friedrich Hunt’s interest in the land in dispute. The answer to that question will determine the revocation or otherwise of the grant of letters of administration by the Court.
  3. If there are no grounds to revoke the grant of letters of administration to the plaintiff, the plaintiff is entitled to seek subdivision of the land.
  4. However, if the grant of letters of administration to the plaintiff is revoked, the second issue is whether the defendant should be granted letters of administration for the estate of Friedrich Hunt.

The law

  1. The Supreme Court under sections 5 and 6 of the Administration Act 1975 (“AA”) may grant administration to a person beneficially interested in an estate;

5. Probate jurisdiction of Supreme Court – (1) The Supreme Court shall continue to have jurisdiction and authority in relation to the granting and revoking of probate of wills and letters of administration with or without a will annexed of the estates of deceased persons, and in regard to the hearing and determining of proceedings relating to testamentary matters and matters relating to the estates of deceased persons.

(2) Without restricting subsection (1) or any other enactment, the Court has jurisdiction to grant probate or letters of administration in respect of a deceased person, whether or not the deceased person left an estate in Samoa or elsewhere, and whether or not the person to whom the grant is made is in Samoa.

6. Discretion of Court as to person to whom administration is granted – In granting letters of administration with or without a will annexed, or an order to administer with or without a will annexed, in respect of the estate of a deceased person or apart of the estate, the Court shall have regard to the rights of all persons interested in the estate of the deceased person or the proceeds of sale of the estate, and, in particular, administration with a will annexed may be granted to a devisee or legatee, and any such administration may be limited in a way the Court thinks fit:

PROVIDED THAT where the deceased died wholly intestate as to his or her estate, administration must be granted to one or more persons beneficially interested in the estate of the deceased, if they make an application for the purpose.

  1. The plaintiff also cited Rules 12 and 206 of the Supreme Court (Civil Procedure) Rules 1981 (“the Rules”) in his ex parte motion;

12. Other civil proceedings - Except where otherwise provided by any Act or by any rules made thereunder or by any order of the Court, all other civil proceedings shall be commenced by way of motion.

206. Procedure in matters not provided for - If any case arises for which no form of procedure has been provided by the Judicature Ordinance 1961 or these rules, the Court shall dispose of the case in such manner as the Court deems best calculated to promote the ends of justice

  1. The defendant moves to rescind the order of the Court made ex parte granting letters of administration to the plaintiff. Rule 65 of the Rules provides;

65. General Procedure - (1) Where by any Act or rule any application in the course of any proceedings, whether before or after judgment, is expressly or by implication authorised to be made to the Court or to the Judge or to the Registrar then, subject to the provisions of the particular Act or rule applicable thereto and so far as not inconsistent therewith, the following provisions shall apply:

(a) The application may be made by motion either in Court or in Chambers, and either ex parte or on notice, provided that any party or person against whom an order has been made ex parte may at any time move to rescind the order;

(b) If made ex parte, the application shall be in the form 13;

(c)...

(d) An affidavit in support shall be necessary in the first instance, but the Judge or Registrar may direct further evidence to be adduced in such manner as he thinks fit;

(e) Upon the hearing of the application the Judge or Registrar may make such order as may be just;

  1. The discharge or removal of an administrator is found in section 12 of the AA.

12. Discharge or removal of administrator – (1) If:

(a) an administrator—

(i) is absent from Samoa for 12 months without leaving a lawful attorney, or

(ii) desires to be discharged from the office of administrator; or

(iii) becomes incapable of acting as administrator or unfit to so act; or

(b) it becomes expedient to discharge or remove an administrator, – the Court may discharge or remove that administrator, and may if it thinks fit appoint a person to be administrator in his or her place, on such terms and conditions in all respect as the Court thinks fit.

(2) The administrator so removed or discharged shall, from the date of that order, cease to be liable for acts and things done after that date.

(3) Upon an administrator being discharged or removed under subsection (1) (whether or not any other administrator is appointed), all the estate and rights of the previous administrator or administrators which were vested in him or her or them as such shall become and be vested in the continuing administrator or administrators (including an administrator appointed under subsection (1) who shall have the same powers, authorities, discretion and duties, and may in all respect act, as if he, she or they had been originally appointed as the administrator or administrators.

(4) This section, with all necessary modification, extends to the case where an administrator dies, and the powers and authorities conferred may be exercised and shall take effect accordingly.

(5) Nothing in this section restricts section 8.


  1. Case law in New Zealand is helpful in determining the issue in this case.
  2. In the case of Lowrey v Jonathan [2016] NZHC 1166( 1 June 2016) the plaintiff sought a recall of the grant of letters of administration because he alleged the defendant had obtained letters of administration through deposing fraudulently that the deceased had not been in a de facto relationship at the time of her death. The Court found that the defendant was not being honest in her affidavit in support of her application for letters of administration and decided that the plaintiff would have had prior rights to be granted letters of administration.
  3. The same application for a recall of letters of administration was made by the plaintiff in Lee v Archer [2012] NZHC 3308(7 December 2012) on the basis that the statement made by the defendant was false.
  4. The High Court in Lee v Archer stated that in this case “The only given ground of possible relevance to the present application is where it becomes expedient to remove an administrator from office”.
  5. The case of Crick v McIlraith [2012] NZHC 1290 was cited where the Judge said:

...The term “expedient” imports considerations of suitability, practicality and efficiency. In the context of estate administration the use of the term “expedient” therefore demands an overarching question-will removal of the administrator be a suitable, practical and efficient means of advancing the interests of the estate and of its beneficiaries?.

  1. In Halsbury’s Laws of England 5th ed vol 103 para 848 the principle that a grant may be revoked where it is obtained upon a false suggestion is stated as;

A grant may be revoked where it has been obtained upon a false suggestion, whether made fraudulently or in ignorance where the false suggestion obscures a defect in title to the grant; it may also be revoked where it subsequently becomes inoperative or useless, or where if allowed to subsist it would prevent the due administration of the estate.

  1. The High Court in Lee v Archer decided that it has jurisdiction to recall the grant of letters of administration on the basis of a false suggestion, if established. The Court stated;

Accordingly I find that Mr Cummings and Ms Lee were in a de facto relationship at the time of his death. It follows that the statement made by Ms Archer in her affidavit was false. It further follows that the foundation has been laid for the Court to exercise jurisdiction to recall the grant of letters of administration in her favour.

AND

Given the finding I have made, the result is that the Court has been led (even in unintentionally) into making an order which it would not have made had the position, now established, been known to it at the time. In this circumstance I cannot see any principled basis for exercising a discretion in favour of Ms Archer, who is the one who made the false statement to the Court.

  1. In Deng v Lee [2018] NZHC 391 (12 March 2018), the plaintiff applied to recall the defendant’s appointment as administrator on the basis that the defendant misled the Court in a without notice application.
  2. This case set out the law of recall of appointment as administrator;

[25] Section 21(1) of the Administration Act 1969 provides the court may discharge or remove an administrator “[w]here an administrator is absent from New Zealand for 12 months without leaving a lawful attorney, or desires to be discharged from the office of administrator, or becomes incapable of acting as administrator or unfit to so act, or where it becomes expedient to discharge or remove an administrator”. The court may appoint any person to be administrator in his or her place on such terms and conditions as the court thinks fit.

[26] The Court of Appeal has adopted Heath J’s statement in Farquhar v Nunns [2013] NZHC 1670 of the principles which should guide a court in applying s 21, which I paraphrase in relation to situations of intestacy:

(a) The starting point is the court’s duty to see estates properly administered and trusts properly executed.

(b) The jurisdiction involves a large discretion which is heavily fact- dependent.

(c) Ultimately the question is what is expedient in the interests of the beneficiaries.

(d) “Expedience is a lower threshold than necessity, and imports considerations of suitability, practicality and efficiency. Misconduct, breach of trust, dishonesty, or unfitness need not be established.”7

(e) Hostility between administrators and beneficiaries is not, of itself, a reason for removal but will be relevant if and when it risks prejudicing the interests of the beneficiaries.

[27] In Lee v Archer, on a summary judgment application, Associate Judge Matthews found, independent of s 21, the Court has jurisdiction to recall the grant of letters of administration “on the basis of a false suggestion, if established”.8 He found the administrator, the deceased’s daughter, had sworn an affidavit which, based on the evidence examined on a summary judgment basis, was false in a material respect: the affidavit stated the deceased was not in a de facto relationship when he was. So, there was a person who would be entitled to apply for letters of administration in priority to the applicant and “the Court [had] been led (even if unintentionally) into making an order which it would not have made had the position, now established, been known to it at the time”.9 The Judge issued summary judgment recalling a grant of letters of administration.

[28] In declining to stay enforcement of that judgment the Judge noted “at the very least”, the previous administrator’s statement was carelessly made and “turning a blind eye to the facts which were squarely before her” did not entitle her to swear the affidavit. He stated:

There is in my view an element of public interest in this case, the protection of [the Court’s] due processes from the consequences of the provision of false information, on which its officers will rely. Ms Lee has taken proceedings to establish that position and in my opinion the Court should be slow to accede to leaving in place the decision made by this Court on the basis of Ms Archer’s false statement.

  1. The Court made the following finding;

[39] Accordingly, I consider the Court was “led (even if unintentionally) into making an order which it would not have made had the position, now established, been known to it at the time”. Like Associate Judge Matthews, I grant the application for recall on the basis of the public interest in ensuring the integrity of the Court’s processes in granting Letters of Administration. This decision does not depend on my view on the validity of Mr Xie’s marriage to Ms Ye in Laas, which is stil still at large. It depends on the existence of a dispute about that, of which Ms Ye knew buwhichdid not alert the Court.

[40] Ms Ye pleads, as an affiraffirmativmative defence, Ms De60;stoppom relying onng on her marriage in China due to the New Zealand dissolution. Ms &#1b> De60;Deng ’s posiis unativeative tew Ze court.ourt. But But her conduct does not alter the legal egal position as to which marriage was valid. Nor does it alter the existef theute over that, which is the basis for recall. The. The cour court will not be prevented by estoppel arguments against one party or another from supervising the integrity of its processes of administration of estates.

[41] Finally, Ms Ye &#1b> Deng&Deng &#82stan ing to bring ting the application for recall, based on questions of fact about Ms#160;#160;’s own relationship with Mr Xie. The legal status of both Ms &# D160;Deng a Ye will obviously be at issue in deciding succession as well as the application for recall. And, technically, Ms D160; Ye&#16> as administrator inor in order to protect the integrity of its own processes. Such a power can be exercised by the Court on its own motion under its inherent supervisory jurisdiction, as it e in recalling probate.
.

  1. In Burgess v Monk [2017] NZHC 2424 (4 October 2017) the High Court stated;

[62] Delivering the judgment of Blanchard and McGrath JJ and herself, in Mafart v Television New Zealand Ltd [2006] NZSC 33, [2006] 3 NZLR 18 at para [16]., Elias CJ said, by reference to an extract from Master Jacob’s article (Jacob, “The Inherent Jurisdiction of the Court” (1970) CLP 23, pp 27 – 28):

[16] The adjectival jurisdiction and powers of the High Court, which enable it to give effect to its substantive jurisdiction, are part of the general jurisdiction recognised by s 16 of the Judicature Act. They were derived from the practice of the superior Courts in England as at 1860, based on their inherent jurisdiction. Except to the extent modified by statute and rules, the Court continues to have inherent jurisdiction and powers to determine its own procedure. The inherent jurisdiction is not ousted by the adoption of rules, but is regulated by the rules, so far as they extend. To the extent that the rules do not cover a situation, the inherent jurisdiction supplies the deficiency. The inherent jurisdiction is:45

“. . . the authority of the judiciary to uphold, to protect, and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner.”

[63] The adjectival jurisdiction of the Court in relation to the administration of estates is an acknowledged aspect of the inherent jurisdiction.46 For example, in Re Jones (deceased&[1973] 2 NZLR 402 (SC), Quilliam J considered whether he could exercise the inherent jurisdiction to grant letters of administration in an intestacy in circumstances where f the Administration Act 19ct 1969 did not apply. His Honour said:

It is [in the inherent jurisdiction of the Court that] the power of the Court to make a grant of administration in the present case is to be found. The Court is to have power to do whatever may be necessary to administer the laws of New Zealand. It is apparent that the power to make a decision upon an application such as the present one is to be regarded as a necessary judicial function. The estate of the deceased must be administered. If it should be the case that the refusal of the Court to exercise jurisdiction in a case such as this resulted in one of the sons changing his mind and seeking a grant to himself then the position could no doubt be overcome. But this need not necessarily happen, and there can be no power of the Court to thrust the task of administration upon a person who declines to apply for a grant, however interested that person may be in the estate. Plainly the Court must be prepared to consider the grant to an applicant where the justice of the case demands it. Until the Legislature sees fit to prescribe by statute the considerations which are to apply to an application such as the present one, the Court will deal with it by the exercise of judicial discretion. This does not, in my view, mean that the Court must, by some analogy, regard itself as bound to look for special circumstances, but merely to consider the matter upon the basis of all the relevant facts in order to be able to arrive at a considered and sensible result. If, for instance, the applicant is clearly unsuitable for some reason then the Court would be obliged to refuse a grant.

[64] While Re Jones is an illustration of the exercise of the inherent jurisdiction, it does not suggest that the jurisdiction is limited to circumstances in which, otherwise, an estate cannot be properly administered ...

  1. This case also involved the addition of a name to a birth certificate. Section 72 of the Births, Deaths and Marriages Registration Act 2002 (‘BDM Act’) provides the process for an addition to the Register as follows;

72. Corrections and additions to the Register – (1) If, on application by any person or on the Registrar General‘s own initiative, after reasonable inquiry, the Registrar is satisfied that:

(a) an event not required to be registered should be registered;

(b) information recorded in the Register about an event is incomplete, incorrect, or misleading; or

(c) information should be recorded in the Register as part of the information about an event previously registered,–

subject to sections 19 and 79, the Registrar General must register the event or amend, delete, or record information in the Register as the case may be.

(2) An application under subsection (1) must:

(a) be in a form and manner the Registrar General in writing approves;

(b) specify the event and the information that are the subject of the application;

(c) where the Registrar General so requires, include the following—

(i) evidence supporting the accuracy of the information;

(ii) a statutory declaration verifying the accuracy of the information;

(iii) any other evidence the Registrar General requires; and

(d) be accompanied by the prescribed fee.

(3) For the purposes of inquiry under subsection (1), the Registrar General may require any person to provide information in respect of an event by a date and in any form as the Registrar requires.

  1. The defendant prays that the plaintiff’s name be removed from the Land Register as registered proprietor of a half share interest in the land in dispute. Section 87(1)- (3) of the Land Titles Registration Act 2008 (‘LTRA’) provides;

87. Court may direct cancellation of folios and other actions related to folios – (1) A Court may, in proceedings for the recovery of any land, estate or interest from the person registered as proprietor of the land, make ancillary orders of the kind set out in subsection (2), if the Court is of the opinion that the circumstances of the case require any such order to be made.

(2) A Court may order the Registrar to do 1 or more of the following:

(a) cancel, amend or make a recording in a folio of the Register;

(b) create a new folio of the Register.

(3) The Registrar must give effect to any such order.

Discussion

  1. As stated earlier, the plaintiff’s status as administrator must be established for him to be entitled to what he is claiming, as there is a challenge from the defendant to him as administrator. Therefore the first issue to be determined in this case is whether the plaintiff is the correct administrator of Friedrich Hunt’s interest in the land in dispute. The answer to that question will determine the revocation or otherwise of the grant of letters of administration by the Court.

First Issue

Whether the plaintiff is the correct administrator of the estate of Friedrich Hunt.

  1. On 13 December 2013, on his own application, the plaintiff was granted letters of administration by the Court of the estate of Friedrich Hunt.
  2. The plaintiff’s ex parte notice of motion for letters of administration was brought pursuant to sections 5 and 6 of the AA.
  3. The plaintiff states in his affidavit to lead letters of administration dated 2 December 2013 (at para 2) that he is a descendant of FEH, saying FEH is his great great grandfather. He refers to FEH as the ‘deceased’. Annexed to his affidavit and marked with the letter “A”, he deposes, is a true copy of the birth certificate of the deceased, issued on 1 October 2012 (“the original birth certificate”). The first name on the birth certificate is EDWIN. The birth date is 9 August 1861 and the parents are La Samoa Hunt(mother) and John Hunt(father). The name ‘Friedrich’ does not appear on this birth certificate.
  4. His evidence in Court is along the same lines. He says his great great grandfather is Edwin Hunt also known as FEH. He says this is the FEH whose estate comprises the land in dispute upon which the defendant resides.
  5. To support his declaration made in his affidavit and his evidence in Court, he tendered during the substantive hearing, a second birth certificate issued on 28 April 2017, with the addition of the name ‘Friedrich’ before the name ‘Edwin’ (“the second birth certificate”). All other details of the original birth certificate attached to his affidavit to lead letters of administration in 2013 remain unchanged except for the date of issue. Inevitably, the second birth certificate was not part of his application for administration in 2013.
  6. The plaintiff’s explanation of how the second birth certificate came to be issued is that an agent of his, Fonoti, investigated the matter and caused the change to the original birth certificate to be done. He says he did not ask Fonoti to change the original birth certificate and he was aware of its existence with only the name Edwin Hunt. Fonoti surprisingly did not give evidence in this case.
  7. Aside from the second birth certificate, offered by the plaintiff to support his contention that Edwin Hunt is the same person as Friedrich Hunt who shares an estate with Jane Johnson, the plaintiff also offered exhibit ‘P17’, which is the same directory he gave to the Registrar of BDM as a supporting document for the second birth certificate. It is a directory titled ‘O le Kalena Samoa’ and lists ‘Hunt, F, storeman (H.I.M), Apia’. The other is exhibit ‘P6’ which appears to be a handwritten list of I.O.U and lists ‘Halfkast Edwin Hunt (Vaimoso)’. The plaintiff contends that those documents prove that Friedrich Hunt is the same person as Edwin Hunt known as FEH. I am unable to find a date on both exhibits.
  8. Most of the plaintiff’s affidavit evidence which he confirmed in Court was aimed at discrediting the defendant’s connection to the land in dispute, saying that the defendant is not related to the Voights and Emma Hunt did not have any children. He also discredits defence witnesses who were to be called saying he lives on the same land as they do but he does not know if they are related.
  9. The plaintiff called Tuautu Kalepo Tuautu (‘Tuautu’), the Registrar of Births, Deaths and Marriages (‘BDM’), who gave evidence in relation to how the second birth certificate came to be issued. He says the second birth certificate was created on the request of the plaintiff who went in person into BDM. Tuautu says the plaintiff explained his connection to Edwin and signed the original BDM record of registration as Namulauulu could not request the change. Namulauulu, from the evidence of Tuautu, appears to be an agent of the plaintiff who had gone into BDM with the plaintiff. I am unable to ascertain if Namulauulu is the same person as Fonoti mentioned by the plaintiff. When put to Tuautu that the plaintiff had given evidence that he was not the one who caused the second birth certificate to be issued, Tuautu says that it was the plaintiff who went into BDM and spoke to him and requested the change. In response to my questions of clarification, Tuautu also confirmed that the plaintiff spoke to him in his office and the plaintiff signed the original BDM record of registration on the date 28/04/2017. I am unable to find an Exhibit number for this record from the transcript.
  10. The original BDM record of registration which recorded in 1903 the birth of Edwin Hunt in 1861, only recorded the name Edwin Hunt. The addition of ‘Friedrich’ before the name ‘Edwin’ was made to the original BDM record of registration on 28 April 2017. According to Tuautu, the plaintiff signed in this record on 28 April 2017. This original BDM record of registration was sighted by the Court. Tuautu says it is the plaintiff’s signature and name under the date 28/4/2017. Re-examination by the plaintiff did not touch upon this evidence. Tuautu says that there were supporting documents brought in by the plaintiff to support the addition of the name ‘Friedrich’. He says the plaintiff brought in a copy of Exhibit ‘P17’.
  11. I prefer the evidence of Tuautu as to how the second birth certificate came to be issued. I find that the plaintiff was not truthful in his evidence that Fonoti caused the change to the original birth certificate. I accept Tuautu’s evidence that the agent of the plaintiff cannot request the change, only a family member. I accept that the plaintiff went into BDM to see Tuautu, requested the change, and signed the original record of registration being the registration book on 28 April 2017.
  12. My findings on fact on this point, impact negatively on the plaintiff’s credibility. I approach his evidence with caution given that he was not forthright when he said that his agent caused the change to the original birth certificate. I accept Tuautu’s evidence because he was candid and his evidence was plausible.
  13. I am unable to see how Exhibit ‘P17’ is a sufficient supporting document as nowhere in that directory does the name FEH appear. According to Tuautu the addition of a name on to a birth certificate is a straight forward process in BDM. There are no forms to fill out and no evidence required. The only requirement is that the person requesting sign the original BDM record of registration which he refers to as the registration book. Tuautu says that there is nothing in any BDM records to indicate there is a Friedrich with the same birth date as Edwin. However even with this lack of records to support the addition of a name to the Register, a second birth certificate was issued.
  14. The change to the original birth certificate in this case was done on the word of the plaintiff, and the supporting document Exhibit ‘P17’. This in my view is wholly insufficient and inadequate to justify the addition of the name ‘Friedrich’ onto the original birth certificate as per the requirements of section 72 of the BDM Act. The ease with which the name ‘Friedrich’ was added to the original birth certificate and the process by which it was done, is flawed and unreliable and consideration needs to be given to the process within BDM for the addition of a name, and to the inquiries which need to be made in order to be consistent with the statutory requirements under the BDM Act.
  15. I do not find that there was reasonable inquiry by the Registrar before the recording of the name ‘Friedrich’ in the BMD record of registration and subsequently onto the second birth certificate.
  16. Tuautu had written a letter to whom it may concern dated 27 February 2018 saying that Mr FEH is also known as Edwin Hunt and is one and the same person. He further says in that letter that the registration of Edwin’s birth was on 30 March 1903. During his evidence he admits that Edwin’s birth was registered in 1903 without the name Friedrich. Therefore in hindsight, there was nothing that was shown to the Registrar that could have satisfied him that FEH is one and the same person as Edwin Hunt.
  17. I do not accept the plaintiff’s allegation that Edwin Hunt was also known as FEH. The second birth certificate issued in 2017 did not exist at the time of the plaintiff’s application to lead letters of administration. He used in his affidavit the original birth certificate of Edwin Hunt, not FEH.
  18. According to the evidence of the defence, there are two people with the name ‘Edwin’ in the lineage of the Hunt family at the material time. They are Edwin Hunt Senior and Edwin Hunt Junior. The Edwin which is at issue is Edwin Hunt Senior born in 1861.
  19. Contrary to the plaintiff’s evidence, witnesses for the defendant gave evidence that Edwin Hunt Senior is not FEH. One of those witnesses was Tupuola George Hunt who is the great grandson of Issac Hunt, Edwin Hunt Senior’s brother. He attached to his affidavit (‘D3’) a copy of John Hale Hunt and Sa Hunt’s genealogical family construct from the church recorder of the Mormon Church. It lists all their 13 children, Edwin Hunt being the 6th child born 9 August 1861. The name Friedrich Hunt is not listed. The record does not have a date however it is not contested that John and Sa Hunt had 13 children as listed in this church recorder. All appear by their first names in this genealogical construct so it would be very unusual that the second name ‘Edwin’ is used if the plaintiff is correct that his name is FEH.
  20. Tupuola is 73 years old. He is not a descendent of either Edwin Hunt, Emma Hunt or Friedrich Hunt and is quite independent. According to his evidence there is no one in their family named FEH, only Edwin Hunt.
  21. Another witness is Kevesi Hunt, the grandson of Edwin Hunt Senior. He is 83 years old and has lived all his life at Vaitoloa. He says his father is Keve Hunt, one of Edwin Hunt’s two children from his first marriage. He says his grandfather was never known or referred to as Friedrich.
  22. Taylor Soloa’i is 65 years old and is the grandson of Edwin Hunt Senior, his mother being Phoebe, the daughter of Edwin Hunt Senior to his second wife. He attaches to his affidavit (‘D5’) his mother Phoebe’s birth certificate issued on 24 September 1982 which lists her father as Edwin Hunt, planter, Vaitoloa. He says he has lived at Vaitoloa since 1967 and his grandfather Edwin Hunt was never known or referred to as Friedrich or FEH.
  23. Losivale Manuleleua is the sister of Taylor Soloa’i and therefore the granddaughter of Edwin Hunt Senior. She says she is 67 years old and has lived at Vaitoloa since 1967. She confirms her mother Phoebe’s birth certificate which lists Phoebe’s father as Edwin Hunt. She also says that her grandfather Edwin Hunt was never known or referred to as FEH.
  24. Kevesi, Taylor and Losivale say they are Edwin Hunt Senior’s grandchildren. All three say and maintain that their grandfather was never known or referred to as FEH. I accept that they are Edwin Hunt Senior’s grandchildren and I accept that they know their grandfather’s name, although none of them were alive during their grandfather’s lifetime. Their evidence in relation to their grandfather is more reliable than the plaintiff’s, who by his own evidence is the great great grandchild of Edwin Hunt Senior.
  25. It is also not disputed that the plaintiff and his family have lived on the estate of Edwin Hunt Senior because they are descendants of Edwin Hunt Senior. According to Taylor and Losivale, the Edwin Hunt Senior estate at Vaitoloa is administered by the Public Trustee, is in the process of being subdivided, and that is the only known land of the Edwin Hunt Senior estate registered as parcel 26 with the land register. However the plaintiff says he has brought this case to correct the estate of Friedrich Hunt and Jane Johnson as he is not related to Raymond Voight.
  26. I find that despite how the plaintiff feels about the defendant, the issue is whether he is the correct administrator of the estate of Friedrich Hunt. This depends on whether I accept that FEH is one and the same person as Edwin Hunt Senior. On the evidence, I do not accept that. The birth certificate filed by the plaintiff with his affidavit to lead letters of administration is the birth certificate of Edwin Hunt. Edwin Hunt’s birth was recorded in the original BDM records in 1903 without the name Friedrich. The grandchildren of Edwin Hunt have never known him to be referred to as Friedrich. Edwin Hunt’s daughter Phoebe’s birth certificate has Edwin Hunt as her father. The genealogical construct from the Morman church lists Edwin Hunt as the 6th child of John Hunt and Sa Hunt, not Friedrich.
  27. Furthermore, if the plaintiff claims that Edwin Hunt Senior is one and the same person as FEH, he however did not seek the consent of the descendants of Edwin Hunt Senior, namely Taylor, Kevesi, and Losivale when he applied for letters of administration for the estate of FEH. It is perplexing that he would deliberately leave out of his application, the other descendants of Edwin Hunt, who he is aware, reside on Edwin Hunt’s estate. This is the same land on which he resides. He did not mention the estate of Edwin Hunt in his affidavit for administration and his evidence in Court. He also in his affidavit to lead letters of administration says that Wesley (Uesi) is the only son of FEH. However he conceded in cross examination that Edwin Hunt’s first wife was Toilalo and they had 2 children, Keve and Uesi. There is no mention of Keve in his affidavit for administration. The only inference I draw is that he was not forthcoming in his application for administration.
  28. In his evidence, the plaintiff says that Losivale, Taylor and Kevesi all live on the same land as he does which is Edwin Hunt’s estate, but he is not sure if he is related to Taylor and Losivale. I find this testimony to be implausible. They have all been living on the same estate, and they continue to live on the same estate to this day, an estate which is administered by the Public Trustee.
  29. It was disputed by the plaintiff that Edwin Hunt Junior was Edwin Hunt Senior’s son. I do not see this dispute as being of relevance. It is common ground that William Hunt adopted Edwin Hunt Junior. Nuu Peter Hunt is the son of Edwin Hunt Junior and lives on William Hunt’s estate as shown on Flur Plan 4B. Nuu Peter Hunt was the only one descended from Edwin Hunt Junior who gave evidence in this matter. The natural father of Edwin Hunt Junior has no bearing on the issue.
  30. In any event, the evidence of Nuu Peter Hunt is that he is 76 years old and was raised on his family land at Vaitoloa. He says he knows his family’s genealogy, and that the name Frederick or Friedrich was not given to, or used by, any of the children of John and Sa Hunt. He also says that Edwin Hunt, born 9 August 1861 was not known as Friedrich Edwin Hunt. I accept his evidence as someone who is knowledgeable in his family genealogy given he has lived 76 years on their family land.
  31. There was also the argument from the plaintiff that Emma Hunt had no children. That also is evidence which is irrelevant to the case before me now. The names of Friedrich Hunt and Jane Johnson are already on the estate formerly belonging to Emma Hunt which is the land in dispute. Whether they were the children of Emma Hunt or not is not the issue here. The issue remains from the outset, whether Friedrich Hunt is the same person as Edwin Hunt, also known as FEH. I am firmly of the view that they are not and there is no one by the name of FEH born in 1861, only Edwin Hunt. Friedrich Hunt, whose name is on the estate with Jane Johnson is not Edwin Hunt, who is the great great grandfather of the plaintiff and the grandfather of Kevesi, Taylor and Losivale.
  32. In summary, I do not accept nor am I satisfied on a balance of probabilities, of the evidence of the plaintiff, for aforementioned and the following reasons.
  33. I find on the evidence that the plaintiff made a false declaration in his affidavit to lead letters of administration declaring that FEH is his great great grandfather. His great great grandfather is Edwin Hunt, the person whose birth certificate is annexed to his affidavit and upon whose estate his family has been living. He subsequently went into BDM and caused the birth certificate of Edwin Hunt to be changed by adding the name ‘Friedrich’ before the name ‘Edwin’.
  34. The plaintiff caused a new birth certificate to be issued by BDM with the name Friedrich added to the name Edwin, under circumstances about which he was not truthful.
  35. He tendered two exhibits (P6 and P17) to prove that that F. Hunt is the same person as Edwin Hunt Senior. There is no evidence to link these exhibits except for an assertion made by the plaintiff that the persons mentioned in the two exhibits with different initials, are one and the same person. I am far from satisfied on this point.
  36. The plaintiff not only made a false declaration in his affidavit about FEH being one and the same person as Edwin Hunt, but he also falsely declared in that affidavit, contrary to his own evidence in Court, and contrary to the evidence of Losivale, Kevesi and Taylor, that Edwin Hunt and his first wife Toilalo had 1 issue, being Uesi Hunt.
  37. He was not forthright about the actual estate of Edwin Hunt on which his family currently lives. It is being administered by the Public Trustee. The estate of Friedrich Hunt with Jane Johnson is not being administered by the Public Trustee.
  38. Furthermore, I accept the evidence of Losivale, Kevesi and Taylor. They were steadfast, consistent and have lived on the land of Edwin Hunt Senior for many years as opposed to the plaintiff. The plaintiff is 53 years old as opposed to Kevesi who is 83, Taylor who is 65 and Losivale who is 67. Kevesi in particular is a credible witness having lived all his 83 years in Vaitoloa on his family land which is the estate of Edwin Hunt. His knowledge of his family’s genealogy is much more reliable and trustworthy than the plaintiff’s. All gave evidence that Edwin Hunt had two wives, each wife having 2 children to Edwin Hunt, and Edwin Hunt was never known as FEH.
  39. Two witnesses Tupuola George Hunt and Nuu Peter Hunt, both were credible and gave plausible and evidence in relation to there being no such person in their family genealogy with the name ‘Friedrich’. I consider these witnesses to be independent of the dispute. Neither of them is involved in the estates of Edwin Hunt, Emma Hunt or Friedrich Hunt.
  40. I did not find the plaintiff to be credible. His evidence lacked authenticity and he came across as self-serving. He says that Kevesi, Peter and Tupuola George depose to a fact that they are not aware of, that is that Edwin Hunt was never known as FEH, because they were not alive at the time. However they are more credible and plausible than he, someone who was also not alive during Edwin Hunt’s lifetime. The Morman record confirms there is an Edwin Hunt, but there is no record of a FEH.
  41. Therefore, this means in terms of the questions posed, I am satisfied that the plaintiff is not the correct administrator of the estate of Friedrich Hunt. The plaintiff does not have a beneficial or any other interest or rights in the estate of Friedrich Hunt. Accordingly the order for grant of administration should be revoked and he be removed as administrator forthwith. He made false declarations and false suggestions in his affidavit to lead. The Court was misled in his without notice application. There is a need in this case to protect the Court’s due process from the consequences of the provision of false information, on which Judges rely. I cannot leave in place the decision made by this Court on the basis of the plaintiff’s false statement.
  42. The totality of the evidence he presented to prove that he is the correct administrator does not satisfy me on a balance of probabilities. It is expedient to remove the plaintiff as administrator pursuant to s12(1)(b) AA. All the estate of Friedrich Hunt which was vested in the plaintiff shall be vested in an administrator to be appointed by the Court.
  43. Pursuant to section 87(2)(a) of the LTRA I am able to make an Order to the Registrar of Land to cancel the recording in the folio of the Register (644/7078 and 645/7078) which records Danny Zinck to a ½ share as a tenant in common to Lots 644 and 645 in Plan 7078.

Result

  1. The plaintiff is not the correct administrator of the estate of Friedrich Hunt.
  2. The order of the Court which granted letters of administration to the plaintiff on 13 December 2013 is therefore rescinded pursuant to Rule 65 of the Rules and is revoked forthwith. The plaintiff is removed as the administrator of the estate of Friedrich Hunt.
  3. This plaintiff became registered owner of the ½ share of tenant in common with the defendant on the basis of this grant of administration. As the grant is rescinded, the recording of his ½ share as a tenant in common on Lots 644 and 645 in Plan 7078 is cancelled by order to the Registrar of Land pursuant to section 87(2)(a) of LTRA.

Second Issue

Whether the defendant should be granted letters of administration for the estate of Friedrich Hunt.

  1. As the plaintiff is removed as administrator, the second issue is whether the defendant should be granted administration of the estate of Friedrich Hunt. This is because the defendant has asked to be granted letters of administration ( Notice of Opposition to Motion for the issue of an ex parte order for an interim injunction dated 5 December 2016)
  2. According to the defendant, the original owner of the land in dispute was his great grandmother Emma Hunt. Emma Hunt then bequeathed the land to her two children Jane Johnson and Friedrich Hunt in equal shares. He says his grandmother is Jane Johnson who became Jane Voight by marriage.
  3. There was some evidence offered by the defendant to establish his beneficial interest in the estate of Friedrich Hunt who he says died without children. However section 6 AA provides that in granting letters of administration the Court shall have regard to the rights of all persons interested in the estate of the deceased person. In these proceedings, I heard only from the defendant and I am not satisfied that I can make findings of facts without having regard to the rights of any other person/s interested in the estate of Friedrich Hunt, which at this point, are unknown.
  4. Therefore instead of granting or declining the grant of administration to the defendant at this point, I invite the defendant to file an application for administration of the estate of Friedrich Hunt. This will allow the Court to consider afresh his claim to having a beneficial interest in the estate of Friedrich Hunt, and more importantly allow the Court to consider the matter upon the basis of all the relevant facts in order to be able to arrive at a considered and sensible result.

Result

  1. The defendant is invited to file an application for administration of the estate of Friedrich Hunt, if he wishes to pursue this matter.

Summary of Results

  1. The plaintiff is not the correct administrator of the estate of Friedrich Hunt.
  2. The order of the Court which granted letters of administration to the plaintiff on 13 December 2013 is therefore rescinded pursuant to Rule 65 of the Rules and is revoked forthwith. The plaintiff is removed as the administrator of the estate of Friedrich Hunt.
  3. This plaintiff became registered owner of the ½ share of tenant in common with the defendant on the basis of this grant of administration. As the grant is rescinded, his registration on the land in dispute is cancelled by order to the Registrar of Land pursuant to section 87(1)(2) and (3) of LTRA.
  4. The defendant is invited to file an application for administration of the estate of Friedrich Hunt, if he so wishes.
  5. The plaintiff’s Statement of Claim is dismissed in its entirety.
  6. The defendant being wholly successful in defending this claim, and in particular in revoking the letters of administration granted to the plaintiff, and removing him as administrator, is invited to submit a Memorandum as to Costs within 21 days of the delivery of this decision. The plaintiff is invited to file a Memorandum in response within a further 7 days.

JUSTICE TAFAOIMALO LEILANI TUALA-WARREN

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