IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 84 of 2017

BETWEEN	:	RAIJIELI RACEVA TAWAKE of 33 Macedon Street, Hoppers	Crossing 3029, Victoria Australia, Domestic Duties.

PLAINTIFF

A N D		:	THE CHIEF REGISTRAR, High Court of Fiji, Government Buildings, 				Suva.
DEFENDANT

Counsel		: 	Ms Raikaci N. for the Plaintiff
						
Date of Hearing         :	6th April, 2017
Date of Decision	:	27th April, 2017

INTRODUCTION
1.	The Originating Summons filed on 3rd April, 2017 filed by the surviving parent of three minors requesting for money held in High Court in terms of Section 57 of the FNPF Decree 2011, to be released to her. The Applicant is seeking to withdraw entire capital (money) held in favour of the minors who are living abroad, with her since they are living in Australia.  The money is held by the Chief Registrar as the Chief Accounting Officer of High Court, on statutory trust under FNPF Decree 2011. This money held in High Court, was their entitlement from a deceased parent’s FNPF account. Under the law the money is held, in trust for the benefit of the minors, until they reach the age of majority.

ANALYSIS
2.	The Applicant had filed this Originating Summons for release of the entire amount held in trust in the High Court in terms of Section 57 of the FNPF Decree 2011.

3.	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) the person is under 18; then, the High Court shall hold the amount to 	be paid in trust for the benefit of the person.

	(6)Subsection (5) does not apply 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.’ (emphasis added)

4.	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.

5.	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.

6.	In the absence of provision regarding the release of money held in the High Court, in the 	FNPF Decree 2011, the general provision regarding trusts contained in Trustees Act 1966, 	will 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.

7.	In the Trustees Act 1966 the application of the said legislation is contained in the 	Section 	3 [TRU3] 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)

8.	The Trustee Act 1966 applies to the money held in trust by virtue of the Section 57 of 	the FNPF Decree 2011. So the relevant law, as to the dealing of the money held in the High 	Court are contained in the Trustees Act 1966 and FNPF Decree 2011.

9.	The Plaintiff seeks withdrawal of entire capital (money) held in trust of the minors.

10.	 Section 55 of Trustee Act 1966 [TRU55] states as follows
	‘55. A trustee may at any time or times pay or apply any capital money or 	other capital asset subject to a trust for the maintenance, education 	(including past maintenance or education) or the advancement or benefit, 	in such manner as he may in his absolute discretion think fit, of any person 	entitled to the capital of the trust property or any share thereof, whether 	absolutely or contingently on his attaining any specified age or on the 	occurrence of any other event, or subject to a gift over on his death under 	any specified age or on the occurrence of any other event, and whether in 	possession or in remainder or reversion, and any such payment or 	application may be made notwithstanding that the interest of that person is 	liable to be defeated by the exercise of a power of appointment or revocation 	or by the operation of the rule against perpetuities or to be diminished by 	the increase of the class to which he belongs; but-

	(a) the money or asset so paid or applied for the maintenance, education, 	advancement or benefit of any person shall not exceed altogether two 	thousand dollars or half of the presumptive or vested share or interest of 	that person in the trust property, whichever is the greater;

	(b) where that person or any other person is or becomes absolutely and 	indefeasibly entitled to the share of the trust property in which that person 	had a presumptive or vested interest when the money or asset was so paid 	or applied, that money or asset shall be brought into account as part of that 	share of the trust property; and

	(c) that payment or application shall not be made so as to prejudice any 	person entitled to any prior life or other interest. Whether vested or 	contingent, in the money or asset paid or applied. Unless that person is in 	existence and of full age and consents in writing to the payment or 	application, or unless the Court, on the application of the trustee. So orders.

11.	Accordingly, a capital sum can be paid for education and for maintenance, and this is to 	be exercised at absolute discretion of the trustee. The total or the maximum amount that 	can be paid from such capital, under such disbursement is ½ of the said capital or 2,000, 	whichever is higher.

12.	So, by law ½ of the capital sum cannot be released at all, and needs to be preserved by the 	trustee so the Plaintiff’s application for the withdrawal of entire sum held in High Court 	cannot succeed in law. It would be illegal to release entire capital even to a parent under 	Section 56 of the Trustee Act, 1966.

13.	It should also be noted when such capital is released for maintenance, education, 	advancement or for benefit conditions can be imposed on the person to whom such 	money is released. This is for the preservation of the capital and to prevent misuse or abuse 	of such money by others including parents. Section 56 of Trustee Act 1966 deals with such 	conditions. It states as follow;

Conditional advances for maintenance, etc.
	56.-(1) Where a power to pay or apply any property for the maintenance, 	education, advancement or benefit of any person or for any one or more of 	those purposes is vested in a trustee, the trustee when exercising the power 	shall have, and be deemed always to 	have had, authority to impose on the 	person any condition, whether as to repayment, payment of interest, giving 	security or otherwise; and at any time after imposing any such 	condition, the trustee may, either wholly or in part, waive the condition or 	release any obligation undertaken or any security given by reason of the 	condition.

	(2) In determining the amount or value of the property that a trustee, who 	has imposed a 	condition pursuant to the provisions of subsection (1), may 	pay or apply in exercise of his powers in that regard, any money repaid to 	the trustee or recovered by him shall be deemed not to have been so paid or 	applied by the trustee.

	(3) Nothing in this section contained shall impose upon a trustee any 	obligation to impose any condition pursuant to the provisions of 	subsection (1); and a trustee, when imposing any condition as to giving 	security, shall not be affected by any restrictions upon the investment of 	trust funds, whether imposed by the provisions of this Act or by any rule of 	law or by the trust instrument (if any).

	(4) A trustee shall not be liable for any loss which may be incurred in 	respect of any 	money that is paid or applied under the provisions of this 	section, whether the loss arises through failure to take security, through the 	security being insufficient, through failure to take action for its protection, 	through the release or abandonment of the security without payment, or 	from any other cause.

14.	The Applicant, who is the mother of the three minors has a parental obligation to 	maintain children. She had been in Australia for considerable time period even prior to the 	death of her late husband.

15.	She had not indicated her present as well as past income or employment. She stated that 	she had obtained permanent visa to reside in Australia indefinitely since 2007. She also 	stated that since 2012 two of the older children had also obtained permanent visas to reside 	in Australia indefinitely. The youngest child was born in Australia and he had obtained 	visa to reside in Australia indefinitely.

16. 	According to the affidavit in support she had stated that she needs money to maintain 	minors. No evidence of her expenses regarding the minors presented.

17. 	Perusal of the file indicate that the Plaintiff obtained $56,436.68 , in 2016, and only two 	minors entitlements are held in the High Court in terms of Section 57 of the FNPF Decree 	2011.

18.	In terms of the Section 55 of  Trustees Act 1966 and the Section 57 of   FNPF Decree, 	capital (money) held in trust can be released at the discretion of the High Court. The total	or maximum amount that can be released from the capital for such purposes is half of the 	amount or $2,000, whichever is maximum. 

19. 	The Plaintiff had stated that the youngest child is suffering from Down Syndrome, which 	is incurable genetic disorder. (See paragraph 12 of the Affidavit in support of the 	Originating Summons) The annexed documents in proof of Downs Syndrome, indicate that 	the child was progressing well and suffering from intellectual disability ‘expected for a 	child with Trisomy 21 or Down Syndrome. (See Annexed I). 
20.	The Plaintiff had not in the affidavit in support included her income and the expenses for 	the education to assess the amount and or periodic intervals, that can be released from the 	capital held in trust in 	High Court. This may be so, as she did not request any partial 	withdrawal but only sought the entire sum. There is clearly statutory prohibition for release 	of entire capital,  it should be noted that the maximum amount that can be released by the 	High Court is  restricted to ½  of the capital held in trust by the Chief Registrar (High 	Court) (or $2000, which does not apply to this case. Though amounts can be periodically 	released for education of the minor children the total maximum amount that can be released 	under the law is ½ of the capital that is held in trust in High Court.

21. 	The Originating Summons does not seek partial withdrawal, but if a proper application is 	made with sufficient information in order to exercise the discretion in favour of such 	application, periodic amounts can be released with appropriate conditions in terms of 	Section 56 of the Trustee Act 1966 [TRU56].

FINAL ORDERS 
a.	The request to withdrawal of entire amount held in trust by the High Court is refused.
b.	The maximum or the total amount that can be released at the discretion of the High Court is ½ of the Capital (money) or $2,000 whichever is higher.
c.	The Originating Summons is struck off subject to above orders.
d.	No costs.

Dated at Suva this 27th day of April, 2017

							................................................
							Justice Deepthi Amaratunga
							High Court, Suva