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In re the Land Registration Act, Application of Meredith [2000] WSSC 14 (22 June 2000)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER of The Land Registration Act 1992/1993

AND

IN THE MATTER of an Application by
RUDY MEREDITH and MEILAN MEREDITH,
both of Siusega, Bank Officer and Businesswoman respectively.

AND

IN THE MATTER of the Removal of Caveat No. 955x lodged by SOFIA ATOA

AND

IN THE MATTER of the Removal of Caveat No. 756 lodged by LEA GALE.

Counsel: H Schuster for applicants
T V Eti for respondents

Hearing: 14, 20 June 2000
Judgment: 22 June 2000

JUDGMENT OF SAPOLU CJ

In these proceedings the Court is concerned with an application by the applicants to remove the caveats lodged by the respondents in the land registry office forbidding any dealings with the land in these proceedings.

Because of the decision I have reached on the question of whether the applicants have standing to bring their application for removal of the caveats, I will not refer to the evidence or the application for removal in detail.

The land in this case is 30 perches in area (0a.0r.30p) and is situated at Togafuafua alongside Taufusi Road. It is registered in the name of the Roman Catholic Bishop of the Diocese of Samoa. The land was sold and conveyed by the Roman Catholic Bishop of the Diocese of Samoa to one Jack Chadwick by deed of conveyance dated 19 October 1998. The sale price for the land was $80,000. For some reason, the conveyance to Jack Chadwick has not been registered up to now. Then on 3 August 1999 Jack Chadwick entered into a sale and purchase agreement with Rudy Meredith and his wife Mei Len Meredith, the applicants in this matter. The applicants have already paid $100,000.00 to Jack Chadwick in part payment for the purchase price of the land and they desire to complete the purchase of the land and have the title transferred to them. However, there are these two caveats on the title to the land forbidding the registration of any dealings with land.

The first caveat was lodged in the land registry office on 26 September 1999 by the respondent Sofia Atoa who is a daughter of Afato Manoo deceased, a half brother of Jack Chadwick. So the respondent Sofia Atoa is a niece of Jack Chadwick. The second caveat was lodged in January 2000 by the respondent Lea Ale, a half sister of Jack Chadwick. The grounds upon which the respondents have lodged their caveats are disputed and denied by Jack Chadwick. None of those grounds has anything to do with the Roman Catholic Bishop of the Diocese of Samoa, the current registered owner of the land, who had already sold the land to Jack Chadwick.

Counsel for the applicants submitted that on the affidavit evidence, the respondents do not have a caveatable interest in the land to support their caveats. The caveats should therefore be removed. Counsel for the applicants further submitted that the applicants are bona fide purchasers for value without notice. He also pointed out that when the applicants entered into the sale and purchase agreement with Jack Chadwick and paid over $100,000 there was no caveat on the land.

These are important submissions for the applicants and they are submissions one expected counsel for the applicants to raise. However, in view of the decision I have reached on the question of whether the applicants have standing to bring their application for removal of the caveats, it would not be necessary to deal now with those submissions for the applicants. The question the applicants may wish to consider is whether it is advisable for the applicants, themselves to lodge a caveat to protect their equitable estate under their sale and purchase agreement.

Now counsel for the respondents submitted that under section 24 of the Land Registration Act 1992/1993 the applicants have no standing to bring their application for removal of the respondents’ caveats. Section 24 provides:

“(a) Upon the receipt of any caveat the Registrar shall enter a memorial thereof in the Land Register and shall give notice of the same to the person against whose estate or interest the caveat has been lodged.”

“(b) The person to whom such notice is given or any other person having any registered estate or interest in the estate or interest protected by the caveat may, if he thinks fit, apply to the Supreme Court or a Judge thereof for an order that the caveat be removed.”

“(c) Such Court or Judge, upon proof that notice of the application has been served on the caveator or the person on whose behalf the caveat has been lodged, may make such order as the Court or Judge deems just.”

The crucial provision is section 24(b) which provides the categories of persons who may apply for removal of a caveat. It was properly conceded on behalf of the applicants that the applicants would not qualify under section 24(b) as persons “to whom such notice is given” as no notice was given by the Registrar to the applicants under section 24(a). It was also not disputed for obvious reasons that the applicants are not persons with an “interest protected by the caveat”. What was contended for the applicants is that the use of the word “or” in the phrase “registered estate or interest in the estate” means that the words “registered estate” should be read disjunctively from, rather than conjunctively with, the words “interest in the estate.” In that way a person with an interest, whether registered or unregistered, in an estate may apply for removal of a caveat from the register. Therefore even though the applicants have an unregistered equitable interest in the estate they are still qualified under section 24(b) to bring their application for removal of the respondents’ caveats.

With respect, I have decided not to accept the contention for the applicants. In my view, section 24(b), in its ordinary and natural sense, means that a person with a registered estate or a registered interest in the estate may apply for removal of a caveat from the register. Grammatically, it would be tautologous to repeat the word “registered” immediately before the words “interest in the estate”. I am also unable to see any reason for taking the view that a person with a registered estate may apply for removal of a caveat but when it comes to a person with an interest in an estate such interest need not be registered. After all an estate and an interest in an estate are closely akin to one another.

A point which was not argued is whether what passed to the applicants under their sale and purchase agreement was an equitable estate or an equitable interest in the estate. If what passed under the agreement was an equitable estate, then it is immaterial for the applicants to rely on the words “interest in the estate” because section 24(b) clearly requires that one of the categories of persons who may apply for removal of a caveat are persons who hold a registered estate. But it would not be useful for me to go into any possible distinction between what is an estate and what is an interest in an estate in view the construction I have decided to adopt in this case. It is also not necessary to decide whether it is an estate or interest in the estate that passed to the applicants as purchasers under their sale and purchase agreement with Jack Chadwick.

The construction which the Courts in other jurisdictions have placed on statutory provisions which are in pari materia with section 24(b) of our Land Registration Act 1992/1993 would be a useful aid to the construction of our own statutory provision. In this regard, counsel for the respondents referred to a decision of the then Supreme Court of New Zealand. This is the case of Boswell v Francis [1974] 2 NZLR 488 where the Court dealt with the construction of section 143 (1) of the Land Transfer Act 1952 (NZ) regarding persons who may apply for removal of a caveat. Section 143(1) provides:

“Any such applicant or registered proprietor, or any other person having any registered estate or interest in the estate or interest protected by the caveat, may, if he thinks fit, apply to the Supreme Court for an order that the caveat be removed”.

It would be seen that section 143 (1) of the Land Transfer Act 1952 (NZ) is in terms substantially the same as section 24(b) of our own Act. In dealing with the question of standing under section 143(1) Cooke J, as he then was, said:

“As to standing, the more natural meaning in their context of the words of s143(1) ‘Any such......... registered proprietor........’ appears to me to be any person who is the registered proprietor of the land at the time of the application under that section. The immediately following words ‘or any other person having any registered estate or interest in the estate or interest protected by the caveat’ support the view that the legislation is giving a summary remedy to persons currently on the register”.

Counsel for the respondents then referred to paragraph 2.157 of Hinde, McMorland and Sim: Land Law in New Zealand (1997) 1^st edition where the learned authors express their opinion on the construction of section 143 (1) of the Land Transfer Act 1952 (NZ) by saying:

“A registered proprietor against whose title a caveat has been lodged, or any other person having a registered estate or interest in the estate or interest protected by the caveat, may apply under s143 (1) of the Land Transfer Act 1952 to the High Court for an order that the caveat be removed.

“Section 143 (1) gives a summary remedy to persons who are currently on the register.

Thus:

“(1) the Court will not entertain an application under s143(1) by an unregistered transferee from the registered proprietor, and

“(2) a person who has ceased to be the registered proprietor of the estate or interest against which the caveat has been lodged has no standing to make an application under s143 (1)”.

The applicants in this case claim to have an equitable estate or interest in the estate in the land under their sale and purchase agreement with Jack Chadwick. Even if that is correct, their equitable estate or interest in the estate is not registered, that is, not currently on the register.

That being so, they have no standing to apply for removal of the respondent's caveats.

The application is therefore dismissed.

CHIEF JUSTICE

Solicitors:
Fepuleai Law Office for applicants
TV Eti for respondents