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Wati v Goundar [2004] FJHC 350; HBC0185R.2003S (18 June 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

ACTION NO. HBC0185R OF 2003S

BETWEEN:

KALA WATI
(f/n Vishnu Deo) of Mango
Place, Naulu Housing, Nakasi, Nasinu,
Fiji, Domestic Duties.
PLAINTIFF

AND:

KRISHNA SAMI GOUNDAR
(f/n Chin Sami Goundar) of Mango Place, Naulu
Housing, Nasinu, Fiji, Caretaker.
DEFENDANT

Counsel for the Plaintiff: R. Singh: Kohli & Singh
Counsel for the Defendant: Ms M. Mua: Messrs Khan & Co.

Date of Ruling: 18. 06. 2004
Time of Ruling: 9.30 a.m.

RULING

The Defendant is the registered lessee of the land known as Lot 24 on D.P. 7782 in the district of Naitasiri. It is a Housing Authority sub-lease No. 426999 with an area of 282m² . The Defendant together with his first wife, one Kusum Lata, had become owners of the property in November 1996 upon consideration of $6,802.40 paid by them to the Housing Authority. The shares of Kusum Lata was transferred to the Defendant for the price of $3,000.00 in October 1999 following their divorce. A mortgage in favour of the Housing Authority was granted by the Defendant over the property in January 2000 for advances which the Defendant claims to be an amount of $50,000.00. The money was used by the Defendant for the improvements to the one bedroom wooden dwellinghouse on the property plus the construction of a two-bedroom concrete dwelling house adjacent to the wooden residence.

The Plaintiff of Lautoka, arrived on the scene on 13 May 2002. She married the Defendant. However, the Defendant says that the marriage was never consummated because the Plaintiff refused so to do. Finally after 6 months, the Defendant moved into the partially completed concrete structure; the Plaintiff remained in the wooden building.

On 4 November 2002, the Plaintiff lodged a caveat on the property to prevent any dealings on it and this was subsequently extended by this Court on 16 May 2003 until further orders.

The Defendant then filed a Motion on 10 June 2003 for the Court Order extending the Caveat to be vacated and/or alternatively that the Registrar of Titles be ordered to cancel the Plaintiff’s Caveat. In his affidavit in support, the Defendant argued that his marriage to the Plaintiff has never been consummated because of refusal. As a result he had filed divorce proceedings at the Nausori Magistrates’ Court upon this ground. Furthermore the Defendant claims, that the property was purchased and improved upon from the moneys provided by him and his first wife, Kusum Lata, and also the loan he obtained from the Housing Authority. According to the Defendant, the Plaintiff had never contributed any money or resources to the improvement of the property, and that her claims are at the most vexatious, frivolous and abuse of the Court process.

The Plaintiff on the other hand, is claiming that she had contributed at least $2,500.00 to the property. She has also helped in cooking for the labourers and had sewn the curtains to the house. She denies that the marriage had not been consummated and Counsel in his submission referred to the Defendant’s divorce proceedings which had been dismissed by the Nausori Magistrates’ Court. In that proceedings, the Plaintiff had on sworn evidence, testified that she and the Defendant were living as husband and wife and had consummated their marriage.

The question for this Court to decide is whether, the Plaintiff has sufficient interest to establish a caveatable interest recognised in law, and which would legally enable her to lodge and maintain a caveat on the Defendant’s property as required under section 106 of the Land Transfer Act.

The facts are straight forward and self evident. The Defendant had acquired of his own the property in question. The Plaintiff has not contributed anything to the initial costs of the new concrete building nor to the already existing wooden structure. She is however now claiming some monetary contribution of $2500.00, which the Defendant vehemently denies, as well as other services, such as cooking for workers, and sewing of curtains, which she argue constitute her contribution to the improvement and maintenance of the property.

What constitutes a caveatable interest was examined fully by this Court in its recent decision The Fiji National Provident Fund Board v. Vivrass Holdings Ltd & Or. HBC 325J of 2002. All the Australasian cases cited (Staples & Co. v. Corby and District Land Registrar {1900} 19 NZLR 517; Municipal District Concord v. Coles [1905] HCA 35; (1906) 3 CLR 96; Guardian Trust and Executors Co. of NZ v. Hall {1938} NZLR 1020) confirm the essential requirement to a caveatable interest namely, that it must be based on statute and confers and estate or interest in land.

Section 106 of the Land Transfer Act (Cap. 131) specifies those that may lodge a caveat as:

“Any person –

(a) claiming to be entitled or to be beneficially interested in any land subject to the provisions of this Act, or any estate or interest therein, by virtue of any unregistered agreement or other instrument or transmission, or of any trust expressed or implied, or otherwise howsoever . . . . .”

In Cambridge Credit (Fiji Ltd. v. W.F.G. Ltd. 21 FLR 182 the Fiji Court of Appeal laid down the test as a requirement, before anyone can come within the provisions of section 106. These are, at page 184:

“(1) That it is a person claiming to be entitled to or to be beneficially interested in any land estate or interest under the Act; and

(2) That it is so claiming by virtue of an unregistered agreement or transmission or any trust expressed or implied or otherwise howsoever.” (emphasis added)

In this case, the Plaintiff claims a constructive trust giving rise to an equitable interest in the property. This arises, according to the Plaintiff’s argument, from her contribution in cooking, cleaning and other domestic duties or chores, to the home. Lord Diplock in Gissing v. Gissing {1971} AC 886 defines the situation where an equitable trust may arise. At page 905, he states:

“A resulting, implied or constructive trust – and it is unnecessary for the present purposes to distinguish between three classes of trust – is created by a transaction between the trustee and the cestui que trust in connection with the acquisition by the trustee of a legal estate in land, whenever the trustee has so conducted himself that it would be inequitable to allow him to deny to the cestui que trust a beneficial interest in the land acquired. And it would be held so to have conducted himself if by his words or conduct he has induced the cestui que trust to act to his own detriment in the reasonable belief that by so acting he was acquiring a beneficial interest in the land.”

The Plaintiff married the Defendant in May 2002. The property was acquired by the Defendant with his first wife in November 1996, almost 6 years before. In fact the construction of the second building, a concrete house, on the property was near completion at the time of the Defendant’s marriage to the Plaintiff. All the financing to the new building was by the Defendant. The Plaintiff did not make any financial contribution to the residence. Barely 6 months after the marriage, the Defendant filed for divorce and the Plaintiff lodged her caveat. Although the petition was dismissed, the Plaintiff insists on keeping the caveat on the property.

It could hardly be said on the evidence before the Court, that there exists an agreement, expressed or implied, for the Court to conclude that there was common intention between the parties for the Plaintiff to have a beneficial interest in the property. In the first place, she did not directly contribute in cash to the acquisition of the lease nor to the construction of the concrete building. All of these were achieved by the Defendant before the Plaintiff married him. In my view, on the facts available and applying the summary of the principle of law stated by Lord Diplock in the Grissing case, I can find no constructive trust that will give the Plaintiff an equitable interest in the Defendant’s property. While there has been the usual contribution of a spouse in home-making, which this Court concedes can contribute, given time, to the accrual of a beneficial interest the fact that the Plaintiff had been married to the Defendant for only 6 months before lodging her caveat on the ground that she had a caveatable interest in the Defendant’s property, is plainly wrong in law and in equity. It surely could not have been the intention of the Court of Equity to extend the equitable devise of a constructive trust to endow beneficial interest upon a party that had only moved into a matrimonial home, without as much as contributing in cash donation to its acquisition, not making a substantial and sustained efforts in her share of home-making and improvements.
The Plaintiff remains married to the Defendant. She has not showed, to the satisfaction of this Court that she possess an equitable interest in the land that is capable of supporting a caveat on it. As Gallan J noted in Guardian Trust and Executors Company of New Zealand Ltd. (supra)

“It is not enough to show that the lodging and continued existence of the caveat would be in some way advantageous to the Caveator.”

In this instance, the Plaintiff must bring herself within the provisions of S.106 of the Act. She failed.

Order is hereby made for Caveat No. 517484 registered over Housing Authority Sub-Lease No. 426999 on land described as Lot 24 on D.P. No. 7782 to be removed by the Registrar of Titles with immediate effect.

Costs in the cause.

F. Jitoko
JUDGE

At Suva
18 June 2004