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Giesbrecht v Cross [2018] FJHC 809; HBC540.2007 (30 August 2018)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Case No. HBC 540 of 2007

BETWEEN : DIANA GIESBRECHT

Plaintiff

AND : ROWENA GRACE CROSS (also known as Grace Bamlett)

and DOUGLAS BAMLETT

Defendants

Coram : The Hon. Mr Justice David Alfred

Counsel : Mr A Rayawa for the Plaintiff

: Mr. I. Fa for the Defendants

Date of Hearing : 24 August 2018

Date of Decision : 30 August 2018

DECISION

1. This is the Summons of the Defendants seeking the following orders:
   • (1) That the Plaintiff show cause why the 2 caveats lodged by her against 2 Certificates of Title registered on 5 October 2007 and extended by the Court on 2 September 2009 until further order, the properties of which the Defendants are the registered proprietors, should not be removed forthwith.
     
   • (2) That the Plaintiff show cause why the caveat lodged by her against another Certificate of Title and registered on 17 September 2009, the property of which the First named Defendant is the registered proprietor, should not be removed forthwith.
     
   • (3) That the said 3 Caveats be removed forthwith.
     
2. The Summons is supported by the affidavit of the First named Defendant who deposes as follows:
   • (1) She is deposing on behalf of herself and the Second named Defendant.
     
   • (2) Circa 5 October 2007, the Plaintiff lodged caveats on the first 2 above mentioned properties.
     
   • (3) Circa 4 March 2010, the Plaintiff lodged a caveat on the third above mentioned property.
     
   • (4) The grounds on which the Plaintiff lodged the caveats were that she was claiming an interest as an equitable beneficiary by virtue of the written and oral agreement made between the Defendants and the Plaintiff dated 4 May 2006 in respect of the 3 abovementioned Certificates of Title.
     
   • (5) On a plain reading of the above agreement there is no reference of it being in respect of the said 3 Certificates of Title.
     
   • (6) The Defendants applied for the removal of the caveats and on 2 September 2009 the Court granted the Plaintiff an extension of time to withdrew the caveat until further order of the Court.
   • (7) She is advised by her lawyer that the Plaintiff does not have a caveatable interest against the 3 titles as defined by the Land Transfer Act (LTA).
     
3. The Plaintiff in her affidavit in opposition deposes as follows:
   • (1) The only cause she knows that is preventing her from removing the caveats is the existence of the Court Order extending them (see order of Pathik J)(the Order).
     
   • (2) The substantive matter in this cause HBC 540 of 2007 has been adjudged and is now on appeal in the Court of Appeal.
     
   • (3) This application should be made in the Court of Appeal and the High Court is now functus officio as the order extending the caveats were issued under this cause that is on appeal in the Court of Appeal.
     
   • (4) This application should be dismissed and the Defendant be ordered to make the same application in the Court of Appeal instead.
     
4. The hearing commenced with Mr Fa submitting that the Plaintiff had no caveatable interest in the lands and the caveats should not have been lodged. He was asking for an order for the first time to remove the caveats which were extended by Pathik J on 2 September 2009. The Plaintiff has no interest in the land but has used it to justify her lodging of the caveats. As her claim has been dismissed she has no caveatable interest. This Court has not determined the caveat issue but only the investment one. It has not made a final order so is not functus officio. The Plaintiff’s appeal is only on the investment issue. There is no application to stay the application to remove the caveat. The Plaintiff has not contested their allegation that she has no caveatable interest. The matter before the Court of Appeal is separate from the application to remove the caveats. The High Court is not functus officio on the caveat matter as that was not before this Court in the investment matter.
   
5. Mr Rayawa then submitted. He said this application is brought under HBC 540 of 2007 and Pathik J’s order cannot be varied. The Defendants should have applied then to set it aside and it is now too late. He said the Defendants are asking the High Court to revisit the matter which was adjudged one year ago. The High Court cannot revisit it as it is before the Court of Appeal.
   
6. Mr Fa in his reply said that Mr Rayawa was conceding the previous counsel did not file a separate action. Once there are no grounds for them, the caveats must be removed.
   
7. At the conclusion of the arguments, I said I would take time for consideration. Having done so I now deliver my decision.
   
8. I start with a perusal of Pathik J’s order, the relevant part of which is the final para which states “It is Ordered the application is granted for the extension of time to withdraw caveat until further order of this court”.
   
9. The plain ordinary meaning of these words is the Plaintiff has time to withdraw the caveat until the High Court makes a further order. No further order has been made by this Court to curtail the Plaintiff’s right to withdraw the caveats, or at all. Therefore there is no basis in law or in fact for the Plaintiff to say in para 3 of her affidavit that the only cause she knows that is preventing her from removing the caveats is the Order. Far from preventing her removing the caveats the Order gives her full liberty to remove the caveats at any time. The Court has not stopped her from removing the caveats.
   
10. I shall now consider the issue of “caveatable interest”.
    
11. Section 106(a) of the Land Transfer Act 1971 says any person claiming to be entitled or to be beneficially interested in any land or estate or interest therein by virtue of any unregistered agreement or instrument or transmission or trust, may lodge a caveat.
    
12. Here it is as clear as daylight that the Plaintiff has no such claim to any of the 3 lands concerned. Her demand arose from what may be described as an investment scheme and her rights interests and entitlements, if any, are confined within the bounds of that scheme. They do not touch any of the 3 lands at any point and give the Plaintiff no rights whatsoever in or to the lands
    
13. I am fortified in my decision by the judgment of the Court of Appeal in: Cambridge Credit (Fiji) Limited v. W.F.G. Limited: delivered on 26 November 1975, by Spring J.A. The Court said at para H on pages 184 and 185 “The respondent must however, bring itself within the provision of Section 106 and in order to do this must satisfy the Court that the following are fulfilled.
    • (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 is it (sic, it is) so claiming by virtue of any unregistered agreement or other instrument or transmission or any trust expressed or implied or otherwise howsoever”.
      
14. The Court held there was no caveatable interest conferred on the respondent (vendor) by the original deed of sale and purchase and there was no vendor’s lien over the land sold for the unpaid purchase monies which could support a caveat. The Court rescinded the order made in the Supreme (now High) Court extending the caveat.
    
15. I must now turn to the issue of “functus officio” which is defined by Osborn’s Concise Law Dictionary as “having discharged his duty”. My judgment of 24 August 2017 was given in an action for the recovery of monies paid under an investment scheme. The appeal against that judgment to the Court of Appeal is for orders that that Court grant the Plaintiff’s prayers for punitive and general damages and restitution for loss. Nowhere from start to finish was there any mention of any caveat against any title to any land.
    
16. Consequently it cannot be said that I have discharged my duty for the simple reason I have not given any decision nor made any order relating to the 3 caveats concerned, and thus my authority has not been spent.
    
17. Before I pronounce my judgment I have a comment to make. This matter arises from an ex-parte order obtained by the then Counsel for the Plaintiff who instead of filing a separate action erroneously brought the summons for extension of time to withdrew the caveats under the intitulement of the civil action relating to the investment scheme with which the caveats had no connection.
    
18. In the result I make the following orders:
    
    • (1) The Registrar of Titles is to forthwith remove the caveat No. 694271 lodged against Certificate of Title No. 148398, the caveat No.694272 lodged against Certificate of Title No.20724 and the caveat No.723809A lodged against Certificate of Title No.32065.
      
    • (2) The Plaintiff is pay the First and Second Defendants the costs of this Summons summarily assessed at $1,000.
      

Delivered at Suva this 30^th day of August 2018.

...........................
David Alfred
JUDGE
HIGH COURT OF FIJI