IN THE HIGH COURT OF FIJI
AT SUVA

PROBATE ACTION NO. 29 OF 1992

IN THE MATTER of the Trusts of the Will
dated 26 July 1987 of Yee Joy late of Suva, Fiji,
Greengrocer, Deceased.

BETWEEN:

SANG YEE JOY
Plaintiff

BPTC LIMITED [In Liquidation]
as Executor and Trustee of the Estate of Yee Joy
Defendant

S. Parshotam for the Plaintiff
P. Knight for the Defendant

Date of Hearing: 29th November, 10th December 1993, 10th May 1994
Date of Interlocutory Judgment: 17th November 1994

INTERLOCUTORY JUDGMENT

The substantive action in this matter was commenced by way of an Originating Summons dated 12th June 1992. In it, the Plaintiff seeks the following relief:

A. That the Public Trustee of Fiji or some other fit and proper person(s) may be appointed Trustee of the above mentioned Trust in place of the Defendant.

B. That the Defendant furnishes the Plaintiff with proper and complete accounts relating to the administration of the Trust set up by Yee Joy under his Will dated 26th July 1987.

C. That the Defendant pays to the Public Trustee any moneys held by it under the said Trust.

D. That the sale of the property comprised in Certificate of Title No. 6585, being the property of the late Yee Joy be conducted under the direction of the Court.

E. That the Caveat No. 315632 lodged by the Plaintiff against the title to the said property be extended until the final determination of this action.

On 12th June 1992 the Plaintiff applied for and obtained an ex-parte Order wherein, inter alia, the Caveat lodged by him, against the said title was extended until further Order of this Court.

Under terms of the said Order each party, could make an application to the Court upon three days' notice.

The application was supported by an Affidavit sworn by Josefa Ratubalavu on 12th June 1992.

Copies of all relevant documents were served on the defendant on 12th June 1992, as appears by the Affidavit of Service of Josefa Ratubalavu sworn on 10th November 1992 and filed herein the same day.

No "Notice of Intention to Defend" was then filed by the Defendant and the Plaintiff sought to obtain a hearing date to its Originating Summons from the Chief Registrar by filing an application therefor on 25th November 1992.

This was returnable before the Chief Registrar on 9th December 1992 and a copy was served on the Defendant.

On 9th December 1992, and thereafter at numerous call-overs and mentions before this Court, the Defendant was represented by counsel.

On or about 18th January 1993 the Defendant filed its "Notice of Intention to Defend".

Various affidavits have been sworn on behalf of the parties as follows:

(i) Josefa Ratubalavu sworn and filed on 12th June 1992.

(ii) Kenneth Herbert Eglinton sworn and filed on 18th January 1993.

(iii) Sang Yee Joy sworn 11th February and filed on 18th February 1993.

(iv) Josephine Yee Joy sworn 26th March 1993 and filed on 29th March 1993.

(v) Sang Yee Joy sworn 15th April 1993 and filed on 20th April 1993.

(vi) Kenneth Herbert Eglinton sworn and filed on 27th April 1993.

By agreement between counsel the matter for consideration before this Court now is whether the Caveat should be extended until the final determination of this action or until further order.

BACKGROUND/FACTS

These are set out in the various affidavits filed in the action.

The facts relating to the status of the deceased, the beneficiaries and the trustee are briefly as follows:

(i) The Plaintiff is a lawful son of the deceased.

(ii) The deceased died on or about 15th June 1982 leaving his last Will and Testament dated 26th July 1967.

A copy of this Will is annexed to the Plaintiff's affidavit of 12th June 1992.

(iii) The Plaintiff is one of the beneficiaries named in the said Will, being an equal beneficiary to six other beneficiaries. Out of these six beneficiaries four are his brothers, one is his sister and one is nephew.

This distribution is described in Paragraph 4 of the Will and it is convenient to quote it here.

"4. UPON the death of my said wife to divide my residuary estate into seven equal parts and to transfer and convey one such part to each of my five sons and one such part to my daughter Grace Chock Toy 84198 Harvard Building, Los Angeles, 47 California, U.S.A. and one such part to my grandson Andrew Yee Joy son of Lit Kat at present of New Zealand PROVIDED ALWAYS that if any son or daughter of mine shall predecease me leaving any child or children living at the date of my death then such child or children shall stand in place of such deceased parent and take per stirpes and equally between them if more than one the share which, such deceased parent would have taken if he, she or they had survived me and had obtained a vested interest."

(iv) The deceased had appointed one of the Plaintiff's brothers, Henry Yee Joy to be an Executor and Trustee of the estate of the deceased.

(v) The Plaintiff's mother (Chang Lin Chun) had a life interest under the Will and upon her death the estate of the deceased was to be distributed by the Trustee.

(vi) Chang Lin Chun died in August 1986 thereby causing the date of distribution to come into effect.

(vii) By then one of the beneficiaries had died and, under the terms of the Will, his issue became entitled to his share in the estate. This beneficiary left surviving him four issue.

This therefore meant that the estate then had ten beneficiaries.

(viii) The Executor and Trustee named in the Will renounced Probate in favour of the Defendant which obtained letters of Administration (with Will annexed) in the estate on 18th January 1983.

At that time the Defendant was called "Burns Philp Trustee Company Limited" which subsequently changed its name to "BPTC Limited" after it was put into liquidation and its operations in Fiji are handled by Trustee Corporation Ltd.

To understand the question to be answered in this application I should state here referring to the death of one of the beneficiaries in Paragraph 6 above, namely Charlie Yee Joy, his four children are Barbara Bryson, Nigel Yee Joy, Deborah Thompson and Judy Yee Joy each of whom holds a one twenty-eighth share in the estate.

Also one of the estate properties is a freehold property situated at 409 Waimanu Road, Suva on which is constructed a substantial wood and iron dwelling house ("the property").

Although on the death of the Testator's wife the could have transferred the property into the names of the ten beneficiaries pursuant to Clause 4 of the Will it appears that all the beneficiaries agreed that the property should be sold. This is referred to in the first affidavit of Kenneth Herbert Eglinton who says in Paragraph 10 that it was his understanding from communications received from the beneficiaries of the estate that all the beneficiaries had agreed that the property should be sold.

Valuation of the property was obtained from Harrison Grierson Consultants Limited by the Defendant in February 1990 which estimated the value of the property at $90,000.00. The property was placed on the market through Real Estate Agents at the price of $90,000.00 in early 1990 but no offers were received. In or about January 1991 Josephine Yee Joy the daughter of Executor named in the Will, offered to purchase the property for $80,000.00 with no agent's commission being payable. This appears in Paragraphs 11, 12 and 13 of the affidavit of Kenneth Herbert Eglinton sworn on the 18th January 1993, (Mr. Eglinton being the Managing Director of the Defendant).

According to Mr. Eglinton Josephine Yee Joy had spent, approximately $20,000.00 on the property.

In or about November 1991, the Defendant sent letters to all the beneficiaries including the Plaintiff, seeking their consent to sell the property to Josephine Yee Joy. The letters to all the beneficiaries except the Plaintiff referred to a sale of the property to Josephine Yee Joy at a price considered reasonable by Henry Yee Joy. The letter to the Plaintiff was the only letter in which the price of $80,100.00 was mentioned but it appears that all the other beneficiaries were aware that this was the price which had been offered by Josephine Yee Joy.

In or about January 1991 when Josephine Yee Joy was advised that beneficiaries consented to a sale of the property to her for $80,000.00 she delivered a cheque for $2,000.00 to Lee Yee Joy as a deposit on the purchase and proceeded to carry out renovations to the property, which is referred to in Josephine Yee Joy Bland's affidavit sworn on 26th March 1993.

All of the beneficiaries except the Plaintiff and Deborah Thompson signed letters in November 1991 consenting to the sale of the property to Josephine Yee Joy.

In or about December 1991 or January 1992 the Defendant obtained independent confirmation that the sale price of the property for $80,000.00 was reasonable.

In Paragraph 16 of his affidavit of the 18th of January 1993 Kenneth Herbert Eglinton states that in or about January 1992 he asked Raine Horne Ragg & Associates (Fiji) Limited to carry out a check valuation on the property and was advised by them that any offer between $80,000.00 and $90,000.00 should be accepted.

By letter dated 6th February 1992 it appears that the Plaintiff for the first time stated his disagreement with the sale as proposed by the Defendant and a series of communications then took place between the Plaintiff and the Defendant. The nett result of these communications was that:

(1) The Plaintiff did not agree with the Defendant selling the property to Josephine Yee Joy.

(2) He was himself interested in purchasing the property and was prepared to pay a sum higher than that offered by Josephine.

(3) The Defendant requested him to make a bid but he declined to do so for fear that this bid would be referred to Josephine who might then raise her offer.

(4) What the Plaintiff was seeking was a private bid between all parties interested in purchasing the property, at that time these being only himself and Josephine.

(5) The Defendant declined to do this.

The Plaintiff then lodged a Caveat against the title of the property to prevent the Defendant from conveying the property to Josephine or transacting any dealing against the title.

In March 1993 the Defendant wrote to the beneficiaries seeking their approval to the property being sold to Josephine Yee Joy for $80,000.00. Henry Yee Joy, Lee Yee Joy, Keith Yee Joy and Andrew Yee Joy representing a four-seventh interest in the estate agreed to a sale on those terms. Judy Yee Joy representing a one twenty-eighth share in the estate expressed a. preference for a private bid between the members of the Yee Joy family as has the Plaintiff representing a one-seventh share. Grace Toy representing a one-seventh share has remained neutral and no replies have been received from the other beneficiaries. This appears from the affidavit of Kenneth Herbert Eglinton sworn on the 27th of April 1993. In this affidavit it appears that the reason why the Plaintiff withdrew his consent to a sale to Josephine Yee Joy for $80,000.00 was that it was proposed to sell the family fruit and vegetable business which had been established in the early 1900's to outsiders whereas the Plaintiff had all along desired the business to remain in the family. He says in this affidavit that the decision to sell to outsiders left him "totally flabbergasted" as it appears that his brothers were not concerned with the continuation of the family name in Fiji and both his brothers had since emigrated to Australia.

From the above recitation of facts the circumstance appears to be that by February 1992 the Defendant was in a position where it understood beneficiaries holding a total of a twenty-three twenty-eighth interest in the estate had agreed to the sale of the property to Josephine Yee Joy Bland for $80,000.00, the only opponent being the Plaintiff holding a four twenty-eighth share and there being no communication from Deborah Thompson holding one twenty-eighth share.

THE LAW

This case raises the question of whether a beneficiary holding a minority interest in an estate can lawfully prevent a sale of an estate property against the wishes of the majority of the beneficiaries.

Dance v. Goldingham (1873) 8 Ch. App. 902 held that a beneficiary holding a minority interest in an estate can obtain an injunction against the sale of the estate property but, only if he can establish that the trustee in effecting the sale would be committing a breach of trust.

Counsel for the Defendant refers to the case of Guardian Trust and Executors Co. of New Zealand Ltd. v. Hall (1938) 57 NZLR 1020 as authority for the proposition that the beneficiary of the residue of an estate does not have an interest in a property which forms part of that residue which can be protected by the registration of a Caveat.

A reading of this case however shows that it is not authority for such proposition. Rather the Court of Appeal of New Zealand held that until the residue of a deceased estate has been ascertained, a beneficiary entitled to a share in such residue is not "entitled to or beneficially interested in" land forming part of that estate within the meaning of the Land Transfer Act.

In this case counsel for the Plaintiff properly points out the difference is that whereas in the Guardian Trust case the interest was not defined, being part of an unascertained residue, in the present case the Plaintiff's interest is very well defined: he is entitled to have his interest in the property conveyed to him.

Indeed in the Guardian Trust case at p.1026 of the judgment the Court cited a line of English cases from 1897 to 1937 which had held that the legatee of a share in residue has no interest in any of the property of the Testator until the residue has been ascertained, and that his right is to have the estate properly administered and applied for his benefit when the administration is complete. It was therefore held on the particular facts that as the administration was not yet completed, the Caveator had no interest in the land sufficient to bring within him the relevant section of the Act.

On the authority both of the Guardian Trust case and the earlier New Zealand case of Staples & Co. Ltd. v. Corby (1900) 19 NZLR 517 I am satisfied that the Plaintiff has a caveatable interest in the land.

In Staples & Co. Ltd. v. Corby Stout C.J. delivering the judgment of the Court said at p.536 when explaining the effect of the Caveat provisions in the Land Transfer Act:

"[T]he words are, "Any person claiming to be entitled to or to be beneficially interested in any land, estate or "interest". The word "interest", last used, shows that legal interest is meant, and this section was meant to guard equitable interests. Before a person can caveat under this section he must be a person who claims to be entitled to the land, or any estate or interest in the land, or to be "beneficially interested" in the land, or in any estate or interest in the land, and the person in either event must claim by virtue of any unregistered agreement or other instrument transmission .... or of any trust expressed or implied, or otherwise howsoever". By this section a purchaser who has only an agreement to purchase, etc, may protect his agreement, or a cestui que trust may protect his interests."

It has been held that it is a breach of trust to disregard the directions given in the Trust Instrument and to sell in a manner or under circumstances not authorised by the settlor or to sell in such a manner as not to obtain the best price for the property and in such cases the trustee will be held liable for any loss sustained by the trust estate - Oliver v. Court (1820) 8 Price 127 at 165, 146 E.R. 1152 at pp. 1166-67. Thus Trustees should ordinarily invite competition before exercising their power of sale.

In the instant case there appears to be a majority of beneficiaries willing to sell the property to Josephine Yee Joy for $80,000.00, a price with which two reputable Estate Agents and Valuers appear to agree. However I realise that the two valuations obtained by the Defendant are now nearly three years old and I believe it would be desirable to obtain the Valuers' opinions as to whether they now wish to revise their estimate. I therefore require the solicitors for the Defendant to put this query to Harrison and Grierson Consultants Limited and Messrs Raine Horne Ragg & Associates and send a further report to this Court before taking the latter any further.

I should also say that I can see no reason why the Plaintiff should not disclose his hand as to the offer for the property he is prepared to make. Even if this resulted in Josephine Yee Joy increasing her offer and perhaps the Plaintiff then making a higher counter-offer, this would surely be for the benefit of the beneficiaries whose interests the Plaintiff claims to have at heart.

In these circumstances I am of the opinion that the Caveat should be continued until further order. On receipt of the two reports I have just mentioned I shall take further submissions if necessary from counsel as to the future disposition of this case.

JOHN E. BYRNE
JUDGE

HBC0029D.92S