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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
Civil Action No.: HBPM 99 of 2014
IN THE MATTER of PECELI VUNIWAQA VOCEA late of Lot 13, Sunland Street, Caubati, Nasinu, Fiji, Diplomat, Civil Servant.
BETWEEN : ADI VASITI BAUKINALAGI VUGAKOTO of Lot 13, Sunland Street, Caubati, Nasinu, Banker.
APPLICANT
AND : FIJI NATIONAL PROVIDENT FUND an entity incorporated under the FNPF Act, Cap 219 having its Head Office at Provident Plaza 2, Suva, in the Central Division.
1ST RESPONDENT
AND : THE CHIEF REGISTRAR, HIGH COURT OF FIJI the Executive Officer of the Registry of the High Court of Fiji of 3rd Floor, Government Buildings, Victoria Parade, Suva.
2ND RESPONDENT
Appearance : Applicant - In Person
1st and 2nd Respondents - No Appearance
Date of Hearing : 20 March, 2017
Date of Judgment : 29 March, 2017
JUDGMENT
INTRODUCTION
1. This is an application by way of Motion by mother of a minor for $9,525.50 from the money that are held with the Chief Registrar
(High Court) in trust for the benefit of the minor in terms of Section 57 (3)(b) of the FNPF Decree 2011 (Decree No 52).
FACTS AND ANALYSIS
2. On 23rd September, 2014 by an order of this court in terms of Section 57(5) of FNPF Decree 2011 read with Section 6 Succession, Probate and Administration Act (Cap 60) was made in the following terms distributing money transferred to this Court in the absence of nomination by the deceased member of FNPF
1. Adi Vasiti Baukinalagi Vugakoto (The Applicant) – Wife (of the deceased) $101,957.30
2. Savenaca Tubuicikova Wainiu Vocea – Son - $32,783.00
3. Perina Keakea Vocea - Daughter - $32,783.00
Minors
4. Matila Georgina Vocea - Daughter - $32,783.00
5. Tevita Vugakoto Vocea - Son - $32,783.00
6. William NasenaVocea - Son - $32,783.00
3. The said order further said ‘In terms of Section 57(5) of the FNPF Decree No 52 the High Court shall hold the amount due to a minor in Trust for the benefit of the person’ till that person attains the age of 18.
4. There is no time period stated in the Section 57(5) but considering that the money would be distributed to any person above the age of 18, the money held in the High Court are held in trust till that person attains the age of 18.
5. This application relate to the money held by the Chief Registrar in the trust account on behalf of the minor William Nasena Vocea.
6. The Notice of Motion filed by the Applicant states as follows
‘For an order for reimbursement of $9,525.50 and to be made payable to’ the Applicant for the school fees paid for her son Williame Nasena Vocea.
7. The Applicant who received $101,957.30 on 23rd September, 2014 is a banker by profession. She is a widow having 5 children and three of them are minors.
8. In her affidavit in support of the motion she had stated that ‘bulk of’ the abovementioned inheritance was used for refurbishment of her residence at Lot 13, Sunland Street, Caubati, Nasinu and she had stated that such investment was necessary for security of her family as there were burglaries in her house.
9. According to her affidavit she had spent approximately $120,000 for the renovation.
10. In her affidavit in support she stated an application for reimbursement of her son’s school fees for $9,525.50 lodged on 5.5.2016 with file reference 99/2014 ‘was not approved for some unknown reasons’.
11. The perusal of the matter indicates a minute stated (dated 26.5.2016) in the following terms
‘The applicant mother (of the minor) obtained $101,957.30 in last part of 2014 and she needs to justify that she does not have sufficient funds to educate the minor in order to ‘to obtain a partial withdrawal.
12. The said minute also said, ‘She can make a formal application through affidavit/motion’. So, not only reasons for rejection was stated but also stated that she could make an application to satisfy her needs for partial withdrawal.
13. The Applicant must be aware of the reasons for the rejection. The main part of her affidavit addressed the said reasons for rejection.
14. At the hearing the Applicant was not represented by a counsel and she was granted further opportunity to file a supplementary affidavit in order to satisfy the need to obtain the money held in trust for the minor.
15. A supplementary affidavit was filed on 17th March, 2017 and an adjourned hearing was conducted where the Applicant stated that she would rely on the two affidavits.
16. Section 57 of the FNPF Decree 2011 states as follows
‘7. - (1) In paying an FNPF member's preserved and general entitlements on his or her death, the Board must comply with any current nomination by the member. However, the Board may only pay a nominee who was, at the time of the member's death -
(a) the spouse of the member;
(b) a parent or child of the member;
(c) an individual who was financially dependent on the member; or
(d) a person specified in rules made by the Board for this section.
(2)If a nominee of an FNPF member (not the surviving spouse of the member) is under 18 on the date of determination of the application for withdrawal, the Board must pay the amount for that nominee to the High Court.
(3)If -
(a) a nomination by an FNPF member does not cover all of the amount payable in respect of the member on his or her death; or
(b) because of subsection (1), the Board cannot pay some or all of the amount payable in respect of an FNPF member on his or her death;
(the amount not covered, or that cannot be paid, is the "unallocated amount"), the Board must pay the unallocated amount into the High Court for disposition according to law.
(4)The High Court may, on application, make such orders as are just for the disposition of an amount paid in under subsection (1) or (2).
(5)If -
(a) the High Court makes an order in favour of a person under subsection (4); and
(b) >(b) the person is under 18;
then, the High Court shall hold the amount to be paid in trust fo benefit of the person.
(6)Subsection (5) does not apply isly is the person is the spouse of the deceased FNPF member.
(7)Where no application is made in respect of an amount paid into the High Court under subsection (1) or (2) within one year after it is so paid, the amount is to be repaid to the Board, and credited to the FNPF.
(8)If a person is found to be entitled to some or all of an amount credited to the FNPF under subsection (7), the Board must pay the person the amount to which he or she is entitled, together with an amount equal to the amount that would have been credited under section 48 if the amount credited to the FNPF under subsection (7) had been credited to an account in the FNPF for the person paid.’
17. There is no provision in the FNPF Decree 2011 which states the circumstances on which the said money held in trust for the benefit of the minor to be released to any person except to the minor upon the attainment of age of majority.
18. If the person is above the age of 18 then the money is not kept in the High Court in trust, accordingly the money held in court in trust for the minor is released upon the attainment of 18th birthday, and the trusteeship for the money ends.
19. In the absence of provision regarding the release of money held in the High Court, in the FNPF Decree, the general provision regarding trusts contained in Trustees Act (Cap 65) would apply. In this instance the law relating to the trustee should be applied as the money is held in the High Court by the Chief Registrar in trust, in terms of the Section 57 of the FNPF Decree 2011.
20. In the Trustees Act (Cap 65) the application of the said legislation is contained in the Section 3, and it states as follows
‘3.-(1) Except where otherwise expressly provided, this Act applies to every trust, whether constituted or created before or after the commencement of this Act.
(2) The powers conferred by or under this Act on a trustee are in addition to the powers given by the provisions of any other Act and by the instrument (if any) creating the trust; but the powers conferred on a trustee by the provisions of this Act, unless otherwise stated, apply if and so far only as a contrary intention is not expressed in the instrument (if any) creating the trust and have effect subject to the terms of that instrument. (emphasis added)
21. The Trustee Act (Cap 65) applies to the money held in trust by virtue of the Section 57 of the FNPF Decree 2011, read with Section 3 of Trustees Act (Cap 65).
22. So the issue before me is whether the Applicant could seek partial withdrawal or the High Court could release money held in trust for the minor and has she satisfied the court for her application for partial withdrawal of $9,525.50
23. The Applicant is the mother of the minor and in her supplementary affidavit, had stated that the minor named William Nasena Vocea is academically slow and traditional classroom method is too fast for him. She had also stated that he is 10 years old and has progressed to Class 1. She also stated that she is the sole income earner and has got mortgage repayments and bills to pay.
24. There are no bills or mortgage payment receipts attached to the application. She had not attached any salary details to ascertain her income.
25. The Applicant is mother of 5 children, and three of them are minor. She has an obligation towards the children for due care and maintenance of them. She has not indicated her position in the profession of banking.
26. The money held in the High Court in trust is for the benefit of the minor and considering the facts contained in the affidavits there is a need for the child to be educated in a special school as he had only progressed to Class 1 by the age of 10.
27. So, the Applicant had established a need and considering that there are 5 children including two adults. This court can exercise its discretion for partial withdrawal for the benefit of the child.
28. The Applicant is seeking reimbursements for which she had already paid from 2015 for the said child’s education. In my judgment this cannot be allowed.
29. A parent should not be allowed to claim from a child, what had already spent from the money held in the Court in trust for the benefit of the child. The Parental obligation towards a child, cannot be basis for partial withdrawal from money held in trust for the benefit of the child. There is only $32,783 held in trust for the benefit of the child and according to the Applicant she had spent $101,957 for renovation of house and other expenses.
30. There are two competing factors, one is the preservation of the money held in trust for the benefit of the minor when that person attains the age of majority and what should be the reasonable expenses that can be allowed from the said fund, for the benefit of the said minor.
31. So when there is special need and the parent or guardian is unable to meet such need, a partial withdrawal could be obtained.
32. In this instance since the child is being educated in a special school tuition fees can be paid directly to the said school.
33. Though the Applicant is mother of the child, any partial withdrawal should be carefully assessed depending on the needs of the child having in mind the paramount parental obligation and the capacity of the parent to meet such needs. At the moment there is no evidence to support reimbursement of the payments already made in 2015 and 2016.
34. So considering the facts before me I order partial withdrawal for the special school amounting $875 (due on 11.5.2017) and also for the next term (due on 3.8.2017) and the details of the said payments can be found in ‘Appendix A’ to the affidavit in support of the motion issued on 3rd March, 2017. The first payment can be made on or around due date (11.5.2017) and next payment could be made on or around 3.8.2017.
35. These are the only payments that could be allowed on the materials supplied by the affidavits. For the year 2018 the Applicant may make an application for partial withdrawals with proof of child’s progress in the said institution, as well as proof of income and expenses at that time.
FINAL ORDERS
Dated at Suva this 29th day of March, 2017
......................................
Justice Deepthi Amaratunga
High Court, Suva
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URL: http://www.paclii.org/fj/cases/FJHC/2017/254.html