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In re the Estate of Frederick Joseph Ulberg [2002] WSSC 40 (7 August 2002)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER: of the Land Registration Act 1992-1993

AND

IN THE MATTER: of and application by THE PUBLIC TRUSTEE for and on behalf of the estate of FREDERICK JOSEPH ULBERG for the removal of Caveat No. 826
APPLICANT

AND

PAUL ULBERG
of Siusega, Faleata.
RESPONDENT

Counsel: Mr P. Fepuleai for the Applicant
Respondent in-person.

Hearing: 2 and 7 August 2002
Judgment: 7 August 2002

JUDGMENT OF JUSTICE COOPER

This matter came before the court on the 2nd of August 2002, at that time the then applicant (representatives of the Ulberg families) was represented by counsel and the respondent appeared in person.

I heard submissions on behalf of the then applicant (representatives of the Ulberg families) and the respondent, and the matter was adjourned until today, the 7th August 2002. In the meantime it was clear that the Public Trustee was to apply to be substituted as the applicant, to file a notice of motion that regard and an affidavit in support. Those papers have been filed and it was intended that they be served on the respondent in court this morning. The respondent has not appeared this morning and so service of the application to substitute the Public Trustee as applicant has not been effected.

The respondent was clearly aware of the fact that the proceedings were adjourned to today and was also aware that this application was to be made. There is nothing new in the affidavit filed by the Public Trustee in support of the application and I therefore now intend to deal with the application in the absence of the respondent notwithstanding the fact that it has not been served upon him.

I do that because he has not turned up to court this morning. He was aware that the application was to be made. There was nothing new in the affidavit in support and there can be no prejudice to the respondent by proceeding this morning.

The applicant applies for the removal of caveat No. 826 registered against the parcel of land 5609. Originally the applicant in these proceedings were Louise Petersen, Olaf Ulberg and Erich Ulberg on behalf of the Ulberg families. Parcel 5609 is part of the estate of the late Frederick Joseph Ulberg.

The Public Trustee is the administrator of the estate as mentioned he has now applied to be substituted as the applicant in these proceedings. The proceedings were brought initially with his approval. He is the appropriate applicant and I now grant the application to substitute him as the applicant.

Counsel for the applicant submits that the onus is on the caveator to show why the caveat should not be removed.

I agree with that submission although for different reasons to those advanced by counsel. Counsel referred to the case of Air New Zealand Limited -v- Rosalina Maeli Higginson unreported Supreme Court of Samoa, 14 April 1993 Misc.15376.1992 Sapolu CJ. That case concerned an interpretation of clause 11 of the Samoa Land Registration Amendment Order 1921. As the Learned Chief Justice held, the wording of that Order clearly puts the onus on the caveator.

The present proceedings are governed by section 24 of the Land Registration Act 1992/1993. The New Zealand Court of Appeal in Sims -v- Lowe [1998] 1 NZLR 656, (overruling in Re Peychers Caveat) held that under s.143 of the New Zealand Land Transfer Act which is in similar terms to s.24 of the Land Registration Act 1992/1993, the onus is on the caveator to establish the caveator has a reasonably arguable case for the interest claimed.

That case also holds that an order for removal of the caveat will not be made under the New Zealand section unless it is patently clear that the caveat cannot be maintained either because there was no valid ground for lodging it or that such valid ground as then existed no longer exists.

That is the approach that I intend to follow in this case because the Samoan Legislation is similar in wording to the New Zealand Legislation and it is an approach, which is in line with that adopted in Samoa under its earlier legislation.

In the present case the caveat states as follows:-

“I, Paul Ulberg, of Siusega, Faleata, the Caveator claiming estate or interest in the land described in the schedule hereto as a beneficiary in and former administrator of the Estate of Frederick Joseph Ulberg which has an equitable interest in and deemed that the rightful owner of the land described in the schedule hereto was wrongly and incorrectly surveyed and transferred to the Estate of Tovia Fonoti as against consent settlement Order dated 23rd October 1998 attached herewith .....”

The estate of Frederick Joseph Ulberg was involved in litigation with Tovia Fonoti. That litigation was settled and a consent order made by the Supreme Court on the 23rd October 1998.

That order required certain lands to be conveyed to Tovia Fonoti and the balance of the land conveyed to the estates of –

(a) Catherine Fries (nee Ulberg)
(b) Henry Ulberg
(c) Peter Chris Ulberg
(d) Maria Betham (nee Ulberg)
(e) Olaf Ulberg
(f) Caroline Isa Meredith (nee Ulberg)

It appears that when the conveyance actually took place Tovia Fonoti received more land than it was entitled to under the consent order, including parcel 5609, the subject of the caveat. An agreement has now been reached between the estate of Frederick Joseph Ulberg and Tovia Fonoti to rectify that situation. It is intended that the land the subject of the caveat be sold to raise funds to cover administration costs. Rather than convey parcel 5609 back to the administrator to save costs it has been agreed that it will be transferred directly to the purchaser and the Administrator receive the proceeds.

To achieve this the administrator seeks that the caveat be removed.

The respondent’s argument is set out in his statement of defence and in submissions made to the court on the 2nd of August.

He objects to the removal of the caveat principally because of an agreement he says was reached between himself and members of the Ulberg family where it was agreed he says, that he would receive a half acre of land in return for work done by him in the administration of the estate. He says that he has done all the “leg work” in that regard.

I do not decide in these proceedings whether this alleged agreement whereby the respondent seeks to claim land worth $38,000 in fact exists. I do note that the alleged agreement is not in writing, is not made with the administrator of the estate and does not relate specifically to parcel 5609.

The respondent also objects because of other matters concerned with the administration of the estate. These are set out in his statement of defence and do not require repeating.

The respondent says that it is quite “silly” to suggest that he has no caveatable interest in the land in question because he is the great nephew of the deceased Frederick Joseph Ulberg.

The following matters are clear:-

1. Contrary to what he stated in the caveat the respondent has never been the administrator of the estate of Frederick Joseph Ulberg. That has always been the Public Trustee.
   
2. Contrary to what he stated in the caveat the respondent himself is not a direct beneficiary in the estate of Frederick Joseph Ulberg. The respondent has an interest in the estate of Henry Ulberg, which is a beneficiary in the Frederick Joseph Ulbergs estate. But the respondent himself, I repeat, is not a direct beneficiary in the estate of Frederick Joseph Ulberg.
   
3. The interest sought to be protected by the caveat was the interest of the estate of Frederick Joseph Ulberg in the land wrongly conveyed to Tovia Fonoti. It was not a private interest of the respondent as now asserted. This alleged private interest arising out of the agreement the respondent says he has with the Ulberg family is not a matter that was referred to in the caveat,
   

In these circumstances it is clear that caveat 826 cannot be maintained. I rule that the caveat be removed and I make an order for costs in favour of the applicant to be fixed by the registrar.

JUSTICE COOPER