Gosche v Andersen [2023] WSSC 82 (25 August 2023)

THE SUPREME COURT OF SAMOA
Gosche v Andersen [2023] WSSC 82

Case name:	Gosche v Andersen
Citation:	[2023] WSSC 82
Decision date:	25 August 2013
Parties:	CHESTER TOOMALATAI PEKINA GOSCHE and ANTON GOSCHE v LEANAPAPA LUCKY JOHAN ANDERSEN
Hearing date(s):	11 August 2023
File number(s):	M101/22
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE PERESE
On appeal from:
Order:	- The Applicants motion to relodge caveat 27866 over land at Matautu-uta is dismissed.
Representation:	S F J Stowers for Applicants T B Heather-Latu for Respondent
Catchwords:	Estate – Beneficial interest
Words and phrases:
Legislation cited:	Land Titles Registration Act 2008 ss 51, 53 & 54(4)
Cases cited:	Laki v Pekina [2011] WSSC 90 Limitation Act s. 11(2)(b)
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

CHESTER TOOMALATAI PEKINA GOSCHE and ANTON GOSCHE
Applicants

A N D

LEANAPAPA LUCKY JOHAN ANDERSEN
Respondent

Counsel:
S F J Stowers for Applicants
T B Heather-Latu for Respondent

Hearing: 11 August 2023
Decision: 25 August 2023

RESERVED DECISION OF PERESE CJ

1. Mr Chester Toomalatai Pekina Gosche’s (“Mr Chester Gosche”) spent his childhood growing up in the seaside village of Matautu-uta, Apia. He and his sister Miti, lived and were raised by their grandfather, Toomalatai Pekina, in a big fale, fit for the holder of the High Chief Matai of Toomalatai. He and his sister helped their grandfather to care for the land, and this fostered in them a rich love and respect for their roots.
2. Mr Gosche is the Applicant in this matter and he seeks an order that he be allowed to reregister Caveat 27866 over part of this land in order to stop anyone else from registering any instrument that might affect his beneficial interest in the land.
3. The Respondent, Lucky Johan Andersen, also known as Leanapapa Laki Andersen (“Leanapapa”), is the court appointed administrator of the estate of his late father, Letasi Peter Andersen, the registered proprietor of Lot 1048 in Plan 7338. Mr Chester Gosche seeks to reregister his caveat on the title of this land.
4. A person claiming to be beneficially interested in any land may lodge a caveat with the Registrar of Land to prevent the registration of any instrument affecting the estate of interest protected by the caveat. This is provided for under ss 51 and 53 Land Titles Registration Act 2008 (“the LTRA”).
5. Mr Chester Gosche, through his solicitors lodged two caveats in 2007. The basis of the beneficial interest noted in those caveats are recorded as being “pursuant to a Settlement Agreement concerning the land described in the schedule...”.
6. Mr Gosche’s two caveats were removed from the Land Register, date unknown. It is not clear how this has happened. There are processes which are set out in the LTRA, but there is no evidence before me as to whether these processes were followed, or if the removals were, by implication, consequential to the determination in Laki v Pekina [2011] WSSC 90, which proceeding was concerned with the legality of a subdivision of Lots 1047 and 1048. I shall discuss this case more fully below.
7. When a caveat has been removed from the Land Register, it cannot be relodged by or on behalf of the same person in respect of the same interest except by order of the Supreme Court: s. 54(4) LTRA.
8. The issue in this matter can be simply stated –
   • (a) does Mr Chester Gosche have a beneficial interest in Lot 1048 in Plan 7338; and
   • (b) if he does is it the same beneficial interest as was previously caveated;
   • (c) if it is the same beneficial interest, should the court exercise its discretion to give Mr Chester Gosche the opportunity to re-register the caveat?
9. I propose to first set out the factual background, followed by an analysis of the caveat that is sought to be reregistered.

Background of the land

10. Issues concerning the ownership of the land at Matautu-uta, which for convenience I will refer to as “disputed land”, was the subject of a hearing in this court in 2011 before His Honour the then Chief Justice, Patu Sapolu in Laki v Pekina. His Honour’s decision was not the subject of appeal, and I respectfully refer to and adopt the Learned Judges unchallenged findings of fact to set out the following background.
11. The disputed land was part of the estate of Tauafiafi Gosche nee Toomalatai (“Tauafiafi”). Tauafiafi who married Anton Ludwig Gosche from Germany. They had two children - Margaret Elsa aka Meki (“Meki”) born 27 June 1897 and who died on 13 November 1980, and Ferdinand aka Pekina (“Pekina” or “Toomalatai Pekina”) born 22 November 1898 and who died on 20 November 1974.
12. Tauafiafi had two pieces of land under her name. One piece was called “Solapo” at Matautu-tai, and the disputed land at Matautu-uta.
13. Tauafiafi died intestate on 3 December 1925; this meant she died without a Will. Meki and Pekina succeeded equally to their mother’s land.
14. The court held that by deed of conveyance dated 19 July 1932, Meki and Pekina, as tenants in common in equal shares, sold the land at Solapo, Matautu-tai.
15. The disputed land at Matautu-uta was declared freehold land by the Land and Titles Investigation Commission to be freehold on 30 October 1973.
16. The Public Trustee was appointed as administrator of the estate of Tauafiafi and became registered as proprietor of the disputed land by virtue of transmission no. 1203Z registered in the land register on 12 September 2002. Sapolu CJ found that at the time of the Public Trustee’s appointment, the only asset in the estate of Tauafiafi was the disputed land.
17. The court also found that Toomalatai Pekina alone gave a part of the disputed land to the then LMS church in 1955. The church later changed its name to the EFKS at Matautu-uta.
18. Toomalatai Pekina married Agatha (Akaka) Faumuina in 1967, and on his death in 1974, Agatha was appointed administratrix of the estate of Toomalatai Pekina.
19. Meki died on 13 November 1980, and she left a Will in which she bequeathed her share in the disputed land to her son Letasi Peter Andersen. He died on 18 January 2008. Leanapapa Laki aka Lucky John Anderson and his sister Irene Annie Andersen were appointed administrators of the estate of Letasi Peter Andersen. I record for completeness that Irene Annie Andersen passed away in New Zealand on 9 October 2018.
20. Following the Public Trustee’s appointment as administrator in about 2002, the Public Trustee took steps to distribute the disputed lands between the estate of Meki and the estate of Pekina. Discussions and negotiations about how to achieve this distribution took place between Agatha (“Akaka”) Faumuina, the administrator of Toomalatai Pekina’s estate and the Public Trustee. It is not clear from Sapolu CJ’s decision whether Letasi Peter Andersen the beneficiary under Meki’s Will was present at these meetings. A sub-divisional plan was prepared in 2003 by a surveyor instructed by the Public Trustee.
21. The disputed land was subdivided into two parcels – parcel 1047 and 1048. After further negotiations concerning the large Samoan fale on parcel 1048, the estate of Toomalatai Pekina endorsed the sub-divisional plan. Moreover, the land which had been given to the LMS was included in the estate of Toomalatai Pekina – Plot 1047.
22. By deed dated 29 June 2006, the Public Trustee conveyed parcel 1048 to Letasi Peter Andersen. The Public Trustee also stood ready to convey parcel 1047 to the administrator of Toomalatai Pekina’s estate; namely Akaka.
23. On 1 May 2007, Mr Chester Gosche, who was at this time living in New Zealand, lodged caveats against parcels 1047 and 1048.
24. At the time, Ms Pekina lived in the Samoan fale with her new partner. She had previously been married to Mr Chester Gosche’s brother. Letasi Peter Andersen on 24 July 2007 brought a case to evict Ms Pekina from the Samoan fale (located on parcel 1048).
25. The issue that Sapolu CJ needed to determine in Laki v Pekina was whether Toomalatai Pekina alone gave part of the land which was the disputed land to the LMS, so the part of the disputed land given to the church should be included in the half share to be transferred to Toomalatai Pekina’s estate. In making that decision, His Honour would inevitably decide the location of the boundaries of parcels 1047 and 1048.
26. After a careful consideration of the evidence, His Honour Sapolu CJ held it was Toomalatai Pekina alone who gave part of the disputed land to the church in 1955. If therefore followed that a fair distribution of the land between the estate of Toomalatai Pekina and the estate of Meki should include, in the portion of the disputed land to be transferred to Toomalatai Pekina, the portion of land on which the church and manse were located. On that basis, the learned judge approved the subdivisional plan prepared by the Public Trustee as establishing the boundaries of Lots 1047 and 1048.
27. Mr Chester Gosche’s evidence is that he did not know about the eviction hearing before Sapolu CJ. This assertion is hard to accept given that his sister-in-law, including nieces and nephews were living at the time in the Samoan fale. However, I do not need to resolve this issue. Once Mr Chester Gosche was made aware of the court’s order for the eviction of his sister-in-law and family from what he regarded as the family home, Mr Chester Gosche took steps. He made an application to the Supreme Court to stay the execution of the judgment so that his sister-in-law and family not be evicted, and that the matter be reheard. His grounds for a rehearing included that he and his siblings were not aware of the hearing before Sapolu CJ and they had a legal and equitable interest in the land in question. The application was dismissed by His Honour Slicer J., on 5 December 2011.
28. Central to issues that I am required to determine is the nature of Mr Gosche’s claimed interest.

Does Chester Gosche have a beneficial interest in parcels 1047 and 1048?

29. The Land Titles Registration Act 2008 provides:
    • 51. Caveat – (1) A person:

(a) claiming to be entitled to or to be beneficially interested in any land, estate, or interest authorised to be included in the Register by virtue of any unregistered agreement or other instrument or transmission or of any trust, expressed or implied or otherwise howsoever; or

(b) transferring or conveying any estate or interest in land authorised to be included on the Register to any other person to be held in trust, – may lodge with the Registrar a caveat in the approved form.

30. Section 54(4) of the Act is also relevant:

(4) If a caveat has been removed no second caveat may be lodged by or on behalf of the same person in respect of the same interest except by order of the Supreme Court.

31. The basis of Mr Chester Gosche’s claimed beneficial interest is recorded on the two caveats he lodged in 2007 over lots 1047 and 1048. In relation to caveat 27866 on lot 1048:
    • TO: The Land Registrar
    • Apia
    • TAKE NOTICE that I CHESTER TOOMALATAI PEKINA GOSCHE of Matautu-uta and Auckland, New Zealand, Mechanic claiming estate or interest as Beneficiary and pursuant to a Settlement Agreement concerning the land described in the schedule hereto, forbid the registration of any instrument affecting the said estate or interest until this caveat is withdrawn by me, or by order of the Supreme Court or a Judge thereof, or until the same has lapsed under the provisions in that behalf contained in the Land Registration Act 1992/1993.
    • (emphasis added)
32. The same ground is advanced in relation to Lot 1047.
33. Sapolu CJ in Laki v Pekina referred to the caveats, which had been lodged by Mr Chester Gosche (refer para 18 and 19 of the judgment), however, His Honour does not refer to them again. I note that by the time the caveats were lodged, Parcel 1048 had been transferred from the estate of Tauafiafi to her daughter Meki’s son Letasi Peter Andersen, by virtue of the disposition to him that was made Meki’s Will.

What is Mr Chester Gosche’s claimed estate or interest?

34. There appear to me to be two different claims. The first interest is as discussed above, something that arose out of a settlement agreement. The second is as discussed at paragraph 15 of his supplementary affidavit, dated 31 July 2023, and filed and served the day before the hearing on Thursday 3 August 2023:
    • Our papa verbally told me and my brother Anton that his mother Tauafiafi Gosche owned two plots of land. One named Solapo in Matautu-tai and the other Matautu-uta, which is currently under dispute. The Solapo land was sold to help Meki, Papa’s sister, pay off her late husband’s business debts. Papa agreed to this only if Meki relinquished her claim to Matautu-uta in favour of him and his children, which Meki willingly agreed to. When Papa suddenly passed away in November 1974, no written agreement or will was left to reflect this understanding between Papa and Meki. We found out later that Meki allegedly made a will in 1994, but she passed away in 1980. The legality of Meki’s will (which seemed to have been made long after she had passed on) is a matter that was never challenged no contested in Court, as we were not given the opportunity to present our side’s concerns in the previous Court proceedings that did not take into consideration my caveats that were already lodged on the disputed land.
35. According to Mr Chester Gosche, his conversation with his Papa occurred in about 1972.^[1] When asked in cross examination whether he was present when Toomalatai spoke with Meki, Mr Chester Gosche replied he was not, only his older brother, Anton, was present.^[2]
36. Of course, it might be said that the reference to the interest arising out of the settlement agreement in the caveat, is the same interest as that described in paragraph 15 of Mr Chester Gosche’s evidence. This would mean that the court’s acceptance of a beneficial interest would rely on the court’s evaluation of the matters spoken about in paragraph 15. Ms Stowers confirmed that paragraph 15 captured the evidence that Mr Chester Gosche relied on in support his beneficial interest. That would mean that there is no written record of the settlement agreement. The beneficial interest, if one exists, relies on verbal discussions.
37. Mr Chester Gosche’s understanding of the beneficial interest appears to be informed by what his brother Mr Anton Gosche told him. This proves to be a weakness in his narrative because he has misunderstood what Mr Anton Gosche told him. At paragraph 11 of Mr Anton Gosche’s affidavit dated 31 July 2023, filed and served as per Mr Chester Gosche’s supplementary affidavit, Mr Anton Gosche deposes:
    • I distinctly remember Papa sharing that he and his sister Meki (also known as Margaret Andersen) reached a verbal agreement, whereby the sale of the land known as Solapo would help settle Meki’s husband’s business debts, providing her with benefits. In exchange, she agreed to leave the Matautu-uta land to her brother, Toomalatai Pekina Gosche, and his siblings.....
38. The phrase “and his siblings” is highlighted for two reasons:
    • (d) It is most unlikely Mr Anton Gosche could have heard Meki say to Toomalatai Pekina, in the present or past tense, that he could share the land with his siblings; Toomalatai Pekina and Meki were Tauafiafi’s only children, there were no other siblings. So the statement is factually incorrect;
    • (e) the issue goes to reliability of Mr Chester Gosche’s evidence. Mr Chester Gosche’s understanding is – he says, the settlement was for Meki to relinquish her claim to Toomalatai Pekina and his children. But that is not what Mr Anton Pekina said he heard. A reference to children might give rise to a beneficial interests for all of Toomalatai Pekina’s children, and perhaps his grandchildren.
      
39. If Mr Anton Gosche is to be believed, then there can be no basis for the beneficial interest which Mr Chester Gosche claims.
40. Mr Anton Gosche’s evidence is not without its own difficulties, and these need to be discussed:
    • (f) Mr Anton Gosche said he saw Toomalatai Pekina, Meki and Letasi meet in the large fale Samoa, and he overhead their discussion as he was doing chores around the fale.^[3] This would mean that at best he must have only heard snippets of the conversation.
    • (g) The discussion Mr Anton Gosche overhead could not have been about some future event. The land, Solapo, had already been sold by Toomalatai Pekina and Meki as vendors, by a deed on 19 July 1932, either 33 or 40 years earlier. There is nothing in the evidence which would explain why the siblings would re-open the terms of the Solapo sale, up to 40 years after the event.
    • (h) If the discussion took place in 1965, it does not seem that Toomalatai Pekina disclosed his ownership of Matautu-uta to Agatha Faumuina whom he married in 1967. This is an inference drawn from the fact that when the Public Trustee raised the issue of dividing the land at Matautu-uta, that Agatha does not appear to have raised Meki’s gifting of her share to Toomalatai Pekina.
41. I record for completeness that there is another variation or version of the nature of the ownership rights to parcels 1047 and 1048. In Laki v Pekina, Ms Agatha Faumuina suggested that she had heard Toomalatai Pekina saying to Meki that it was not fair for her to think of gaining a share in the disputed land (parcels 1047 and 1048) when she had sold their mother’s land at Solapo. Sapolu CJ rejected this assertion as it was contradicted by documentary evidence which showed that Solapo was sold by both Toomalatai and Meki, and not Meki alone.
42. In addition to the matters discussed above, I note the terms of the supposed oral agreement were not disclosed in this proceeding until the day before the hearing. Such late disclosure, unexplained, and appearing to be made as an afterthought to the main affidavit in support of the applicant’s application, is highly unusual given the importance of the information. Although Messrs Chester and Anton Gosche’s affidavits are dated 31 July 2023, they were not filed and served until the day before the hearing. But it seems the particulars of the oral agreement did not see the light of day until the late disclosure.
43. Communications in Mr Chester Gosche’s possession were produced to the court, which Mr Chester Gosche deposed demonstrated his “active pursuit of this matter”^[4]. One message is a facsimile letter from Richard’s Law Firm to Mr Chester Gosche’s solicitors on 10 May 2007. Afioga Te’o Faa’iuaso notes his client – the administrator of Toomalatai Pekina’s estate had placed a caveat over the property “because Agatha Faumuina does not agree with how the land was subdivided equally between Toomalatai Pekina and his sister’s son Letasi Anderson”. The fact that Mr Chester Gosche exhibits the letter likely shows he must have received it, and therefore must have been aware of Mr Faa’iuaso’s advice that the land he said was his grandfathers under the oral agreement, was being “subdivided”. What is noteworthy is that there is no evidence to show that either Mr Chester Gosche or his lawyers responded countered the news of a subdivision with the particulars of the beneficial interest.
44. \Mr Chester Gosche also produced copies of correspondence with the Public Trustee. Again, despite being aware of the Public Trustee’s intention to subdivide the land, Mr Chester Gosche does not make reference in the communications he placed before the court showing his disclosure of the oral agreement and particulars of that agreement. It is of course the case that events may have unfolded very differently had Mr Chester Gosche made his alleged beneficial interest known.
45. Though the late disclosure led to the hearing of this matter having to be adjourned for a week to give the respondent the opportunity to prepare, it is the fact that these particulars were not disclosed at all at any earlier time to anyone other than to Toomalatai Pekina’s young, barely adolescent, grandson that causes me to conclude that no probative weight can be given to Mr Anton Gosche nor Mr Chester Gosche’s evidence of an oral agreement.
46. For the reasons discussed above I have come to the view that I have no option but to reject Mr Chester Gosche’s claim of an equitable interest in the Matautu-uta land, in parcel 1048. There is simply no credible evidence upon which I can find that an agreement existed, as described by the applicant and his brother, on the balance of probabilities.
47. Therefore, the application to reregister the caveat 27866 is dismissed.

Limitation Act

48. I raised with Ms Stowers my concern that Mr Chester Gosche’s claim might have been barred by the Limitation Act 1975 (“LA”). However, I find that I am satisfied that had Mr Gosche a beneficial interest in parcel 1048 that he would not be barred, given that the effective date of disposition was August 2011 (by the delivery of the judgment in Laki v Pekina), and these proceeding being brought on in August 2022, the proceeding would have been brought within the 12-year limitation period provided for in s. 11(2)(b) of the LA.

Costs

49. Costs should follow the event. If parties are not able to resolve costs, they may file submissions within 21 days of this decision.

Outcome

50. The Applicants motion to relodge caveat 27866 over land at Matautu-uta is dismissed.

CHIEF JUSTICE PERESE

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^[1] Gosche & Anor v Andersen, Notes of evidence (“NOE”) Hearing on 11^th August 2023 p. 14.
^[2] ibid., p. 15.
^[3] ibid., pp 25 and 28.
^[4] C Gosche Supplementary Affidavit para 11.