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Wang v Huang [2015] FJHC 365; HBC297.2012S (18 May 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 297 of 2012S

BETWEEN:

AILI WANG
of 34 Salato Road, Namadi Heights, Suva, Fiji, Tour Guide
Plaintiff

AND:

ANTHONY HUANG
of Flat # 1, 44 Le Hunte Street, Suva, Businessman
1st Defendant

AND:

THE REGISTRAR OF TITLES
of Civic House, Suva
2nd Defendant

AND:

THE ATTORNEY GENERAL OF FIJI of Suvavou House, Suva
3rd Defendant

Appearance : Ms Maharaj A. of M C Lawyers for the Plaintiff
Ms Fong A of M Chan Law for the 1st Defendant
Ms Ali S with Mr Naidu K. of the Attorney General's Chambers for the 2nd and 3rd Defendants

Date of Judgment : 18 May 2015

INTER-LOCUTORY JUDGMENT

[1] On 24 October 2012, the Plaintiff filed the Writ of Summons and Ex-parte Summons and sought the following reliefs:

"1. Caveat Number 748478 lodged by the Caveator Aili Wang on State Lease No. 11836, Lot 10 on Plan S1505 be extended beyond 21 days and until the final determination of Suva Family Magistrate's Court case No. 12/SUV/0214.

2. Service of the documents on the 1st Defendant herein be abridged.

3. Such other relief as this Honorable Court deems just and expedient.

4. Costs of this application".

[2] The matter was taken up for hearing Ex-parte on 25 October 2012, and this court made order extending the Caveat No. 748478 until 15 November 2012 which remains until this date. The said order dated 25 October 2012 was amended on 11 June 2013 to read the Caveat No. as 749357.

[3] The issues to be decided on the matter are as follows:

1. As to whether the Plaintiff has beneficial right to place a caveat on the State Lease No. 11836?

2. If the said issue is answered affirmative as to whether the Plaintiff is entitled to the extension of the Caveat No. 748478 until the final determination of Family Magistrate's Court Case No. 12/SUV/0214.

[4] Background

4.1 The present application was made pursuant to the Section 110(3) of the Land Transfer Act Cap 131 which states:

"110 (1) ...........................

(2) ............................

(3) The Caveator may either before or after receiving notice from the Registrar apply by summons to the court for an order to extend the time beyond the twenty-one days mentioned in such notice, and the summons may be served at the address given in the application of the caveatee, and the court, upon proof that the caveatee has been duly served and upon such evidence as the court may require, may make such order in the premises either ex-parte or otherwise as the court thinks fit".

4.2 The Plaintiff and the 1st Defendant were married on 29 October 2004 and were separated in March 2011 which was denied by the 1st Defendant and stated the separation took place in October 2011 (Marriage Certificate Annexure 'E' to the Affidavit).

4.3 The Plaintiff has made an application for distribution of the Matrimonial Property in the Family Court of Suva Action No. 12/SUV/0214 (Annexure 'I' to the Affidavit in Support). Annexure 'I' refers to the reliefs claimed against the 1st Defendant inter-alia distribution of Matrimonial Property.

4.4 The Plaintiff had sought to distribute the matrimonial property based on the marriage and she claims the parties entered into an agreement on 17 of September 2011 with the assistance of her brother and various proposals were exchanged. The proposed settlement figure for distribution of the matrimonial property was USD250,000.00 and the 1st Defendant agreed to honour the said agreement and partially fulfilled by paying USD100,000.00 to the Plaintiff's Bank Account in China on 21 March 2012. The arrangement reduced to writing was found in the email sent by the 1st Defendant to the Plaintiff's friend in China (annexures 'F' and 'G' to the Plaintiff's Affidavit) where the payment of the USD250,000.00 was agreed and the rest of the contents of the email translated by the mother of the Plaintiff's solicitor annexed marked as AH2 and AH3 are not relevant to the present issue and I disregard AH2 and AH3 for the consideration of the matter before me. Specifically, referring to the translation, I accept that the relevant portions of the email are the annexures marked as 'F' and 'G' to the Affidavit of the Plaintiff. All other issues and allegations made by the 1st Defendant in paragraphs 13 and 14 of the 1st Defendant's Affidavit (annexures AH2 and AH3) are not relevant at this stage and it could be determined only at the substantive hearing in the Family Court case. I further conclude the 1st Defendant's admission of sending the email and the payment of USD100,000.00 divulge there was an informal agreement between the parties.

4.5 Accordingly, I conclude there was an agreement between the parties to pay the Plaintiff USD250,000.00 as a settlement and out of which USD100,000.00 was being paid. The other issues raised by the 1st Defendant has to be considered at the time of distribution of the matrimonial property.

4.6 The Plaintiff had annexed Certificate of Title No. CT 4761 as the annexure 'H' to the Affidavit in Support of the Plaintiff dated 23 October 2012. The Plaintiff had stated the property was transferred to his brother Long Tai Huang on 2nd of July 2012. The Defendant refrained from answering this averment in his Affidavit and stated it was subject to separate action. However, my conclusion is that the annexure 'H' is relevant to decide in this case since the transfer of the property had taken place on 2nd July 2012, that was when the parties were in separation and the application for dissolution was filed on 24 August 2012. The inference this court can make at this juncture is that the 1st Defendant being aware knowing that the marriage is to be dissolved the property was disposed to his brother. This inference of the court is supported by the email marked as Annexure 'F' and 'G' dated 23 September 2011 to the Affidavit in Support of the Plaintiff. It is evident that this email is a clear indication of the parties with regard to dissolution of the marriage, and it establish at the time of the transfer was effected the 1st Defendant was aware and had the knowledge and intention to dissolve the marriage.

4.7 The 1st Defendant's contention that there was only an informal proposal for settlement which was not acceptable to him. This position was defeated by the partial payment of USD100,000.00 and the email dated 3 September 2011.

4.8 The 1st Defendant stated in his Supplementary Affidavit dated 14/2/2013 because of the existence of the Caveat he was deprived of selling the property. However, he failed to establish that there was an offer in writing or any Sale and Purchase Agreement between the 1st Defendant and the buyer and this court cannot make conclusions on the assertions as stated in the paragraph 6 and 7 of the Supplementary Affidavit. I determine there was a beneficial interest of the property conferred upon the Plaintiff to register the caveat on State Lease No. 11836:

1. The Section 106 of the Land Transfer Act Cap 131 states:

"106. 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 virture of any unregistered agreement or other instrument or transmission, or of any trust expressed or implied, or otherwise howsoever; or

(b) transferring any land subject to the provisions of this Act, or any estate or interest therein to any other person to be held in trust;

may at any time lodge with the Registrar a caveat in the prescribed form, forbidding the registration of any person as transferee or proprietor of, and of any instrument affecting, such estate or interest either absolutely or unless such instrument be expressed to be subject to the claim of the caveator as may be required in such caveat".

4.9 Now this court should consider as to whether the Plaintiff is entitled to an extension of the caveat until final determination of the Family Magistrate's Court Action No. 12/SUV/0214:

1. "The Section 110 of the Act states:

(1) Except in the case of a caveat lodged by the Registrar the caveatee or his agent may make application in writing to the Registrar to remove the caveat, and thereupon the Registrar shall give twenty-one days' notice in writing to the caveator requiring that the caveat be withdrawn and, after the lapse of twenty-one days from the date of the service of such notice at the address mentioned in the caveat, the Registrar shall remove the caveat from the register by entering a memorandum that the same is discharged unless he has been previously served with an order of the court extending the time as herein provided.

(2) Every such application shall contain an address in Fiji at which notices and proceedings may be served.

(3) The caveator may either before or after receiving notice from the Registrar apply by summons to the court for an order to extend the time beyond the twenty-one days mentioned in such notice, and the summons may be served at the address given in the application of the caveatee, and the court, upon proof that the caveatee has been duly served and upon such evidence as the court may require, may make such order in the premises either ex-parte or otherwise as the court thinks fit".

2. In this regard, the Affidavits filed by the Plaintiff, the 1st Defendant, 2nd and 3rd Defendants and the submissions made has to be taken into consideration:

(a) The 1st Defendant claimed in the paragraph 2 of the Affidavit in Reply that the Plaintiff is not residing at the given address in the Affidavit. This is not substantiated by the Defendant and as such I deny to accept the claim by the 1st Defendant.

(b) In the further Affidavit filed by the 1st Defendant on 15 May 2013 in the paragraph 4, 5, 6, 7, 8, 9 and 10 stated that Caveat No. 745478 was deliberately cancelled and thus does not exist and no new number could be given. However, in the Affidavit filed by the 2nd Defendant it was stated when a caveat is cancelled a new number is given to it if filed with the required corrections which were duly carried out by the 2nd Defendant. The 2nd Defendant further stated the Registrar has wide powers under Section 131(2) of the Land Transfer Act Cap 131 to correct errors in the Certificates of title, or in the register, or in entries made therein respectively, and may supply entries which have been omitted to be made ..................... The sequence of the events taken place is relevant for the conclusion i.e.:

Action No. Action Date Action Taken

1 27 July 2011 Consent of the Director of Lands sought and obtained to lodge the caveat.

2 7 August 2011 Caveat lodged by Sherani & Co. then solicitors for the Plaintiff.

3 12 September 2011 Caveat application returned to Sherani & Co. for corrections.

4 14 September 2011 Application for withdrawal of said caveat by Mere, Ligation Clerk of Sherani & Co.

5 14 September 2011 Corrected Caveat lodged by Sherani & Company.

6 14 September 2011 Caveat No. 748478 is cancelled with a line across it, a new Caveat No. 749357 dated 14 September 2011 is stamped on the memorial (annexure 13 of the 2nd Defendant's Affidavit in Response signed by the Registrar of Titles).

(c) Internal Office Procedures

1) The Caveat No. 749357 was sent to the endorsement clerk for entering purposes in the memorial, date and time of the lodgment.

2) Caveat was forwarded to the Registrar for signing and the Registrar had duly signed the memorial (annexure 2) but signed the caveat instrument of cancelled Caveat No. 748478 now bearing the new Caveat No. 749357. The same instrument shows the old Caveat No. 749357 which was cancelled by drawing a line. However, the new Caveat No. 749357 on 14 September 2011 at 9.59 am was not recorded on the Title.

3) 22nd September 2011 the Registrar sends Notice to Caveatee (the 1st Defendant) of the Lodgment.

The 1st Defendant's position is that the 1st Caveat No. 748478 was not aware by the Plaintiff since it was attended by then lawyers of the Plaintiff and the name and address given in the Caveat was the address of Sherani & Co. As such I deny to accept the position of the 1st Defendant.

(1) The Plaintiff tendered a false address.

(2) The changes made in the numbers of the two caveats was a deliberate act by the Registrar.

I accept the position it was a procedural error made by the Registrar when he registered the caveat in the memorial and the Plaintiff's right to extension cannot be deprived of for this reason.

(d) The 1st Defendant alleged that the caveats registered by the 2nd Defendant are unsigned. The 2nd Defendant had forwarded all the attachments and I conclude the allegation made by the Plaintiff is unfounded and baseless.

(e) I also considered the Judgment in case of NBF Asset Management Bank vs. Taveuni Estates [2009] HBC 245 of 2008 (unreported decided on 13 January 2009) in which Singh J. stated that caveats are lodged as opposed to being registered and emphasized that caveats gain effect from the mere act of lodgment and the said act is not a claim but as a warning to the interest in the property. I concede with Singh J and state caveat is an interest lodged for public notice where caveator has to establish his interest subsequently when any issue arises when a new instrument is tendered for registration on the title. In the said case of NBF, it was treated there was an existence of the caveat even it was unsigned by the Registrar as such the 1st Defendant's argument fails.

(f) As I concluded in the preceding paragraphs there is a caveatable interest established by the Plaintiff and it was the intention of warn the public of the Plaintiff's claim for distribution of the matrimonial property. As such the 2nd Defendant's failure to sign the memorial cannot be taken to consideration in favour of the 1st Defendant. The caveat was registered on the basis that the 1st Defendant was attempting to dispose the property defeating the matrimonial rights of the Plaintiff which was established before this court.

(g) The 1st Defendant's complain stated in the paragraph 4 of the Affidavit in Reply is unfounded. His solicitor had the knowledge that the caveat was sent for correction to Sherani & Company annexure AH1 to the Affidavit in Reply of the 1st Defendant states caveat lodged by Sherani & Company and the solicitors for the Plaintiff had failed to liaise with Sherani and Company to find out the status of the matter. Further I conclude that perusal of the Affidavits that this matter has to be decided at a substantive hearing since the matter relates to the distribution of the Matrimonial Property.

(h) It is a fact that neither party brought the error made by the 2nd Defendant to his notice. In terms of Section 132(2) of the Land Transfer Act the 2nd Defendant is empowered to correct the errors and I conclude he had acted within his powers. I have taken into consideration Attorney General vs. Kumar and Riley [1985] 31 FLR 23 to arrive at my conclusion. I don't see any reason to remove the caveat at this stage prior to substantive matter being heard.

(i) The 1st Defendant submitted injunction principles to be applied in this case. It is the conclusion that there is a beneficial interest to the Plaintiff over the property. If the extension of the caveat is not granted, the subject matter of this case will be extinguished and no redress will be available for the Plaintiff. I am also of the view the distribution of the matrimonial property is pending before the Family Court as such the status quo of this property should remain unchanged and the Defendant's submission fails. All other matters raised in this case are not relevant to the present issue before this court and should be determined at the substantive hearing.

[5] Accordingly, I make the following Orders:

(i) Caveat No. 749357 lodged by the Plaintiff is extended until final determination of this case and the Suva Family Magistrate's Court Case No. 12/SUV/0214;

(ii) The Plaintiff is ordered to take all steps to fix this matter for trial within 4 months from the date of this Judgment;

(iii) Costs shall be costs in the cause.

Delivered at Suva this 18th Day of May 2015

C. KOTIGALAGE
JUDGE