IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

LANA SCHWALGER TOLEAFOA 
of Kahuku, Hawaii, married Woman
Applicant

AND:

SOPHIE BEN,
Deceased and

DAVID CHRISTOPHER PAYNE
of Waiuku, Auckland, New Zealand and 

LUANA MARISSA PAYNE 
of Auckland New Zealand 

both Administrators of Daphne Coles estate.
Respondents

Counsel: DM Clarke for applicant
JJ Brunt for respondents

Conclusions: 06 August 2008
Judgment: 13 August 2008

JUDGMENT OF SAPOLU CJ

1.	My conclusions in these proceedings were delivered on 6 August 2008. I then indicated that copies of my written judgment with reasons will be made available to counsel in due course. This is that judgment.

Nature of proceedings

2.	These proceedings are concerned with an application by the applicant Lana Toleafoa nee Schwalger for removal of two caveats lodged with the registrar of land against a parcel of land of which she is already the registered owner of an undivided half interest and the unregistered purchaser of the other undivided half interest.

3.	I must say that the facts in these proceedings are quite complicated. I have tried to simplify those facts and counsel for the applicant has done the same in his written submissions.

4.	The first of the two caveats in issue here is caveat 928x lodged by the first named respondent Sophie Ben nee Schwalger (Sophie) and Daphne Coles nee Schwalger (Daphne) on 21 January 2004. The second caveat is caveat 1033x lodged by the respondents David Christopher Payne and Luana Marissa Payne as administrators of the estate of their mother Daphne who died on 20 January 2005. So caveat 1033x must have been lodged after 20 January 2005. It is essentially an extension of caveat 928x as the interest it seeks to protect is substantially the same as the interest covered in caveat 928x.

The parties

5.	The applicant Lana Toleafoa, the first named respondent Sophie, Martha Blakely nee Schwalger (Martha) one of the original respondents and Daphne are sisters. The applicant is the youngest of their parents nine children.

6.	Sophie, as advised by counsel for the respondents, died before Daphne. So Sophie must have died before 20 January 2005. It is not clear whether an administrator has been appointed of her estate. However, it is not a serious issue for present purposes whether her name should continue to appear as a respondent. So her name will remain as a respondent for present purposes.

7.	Before Sophie died she had sworn an affidavit on 1 May 2002. That affidavit seems to have been sworn in relation to caveat 830x on the same parcel of land which is the subject of caveat 928x and 1033x. Caveat 830x is not in issue in these proceedings.

8.	Daphne as already mentioned died on 20 January 2005. As she was one of the caveators of caveat 928x, she was initially cited as one of the respondents in these proceedings. However, the administrators of her estate have been substituted as parties in her place. It is the administrators of Daphne’s estate who lodged caveat 1033x.

9.	Martha is not one of the caveators. So she should not be a respondent in these proceedings. Her name has therefore been removed as one of the respondents. However, I would not exclude from consideration the affidavits she has filed and upon which the remaining respondents rely in these proceedings.

Application for removal of caveat.

10.	By an application dated 26 June 2007, the applicant sought an order for removal of caveats 928x and 1033x pursuant to s.24 of the Land Registration Act 1992/1993. An amended application dated 10 July 2007 with supporting affidavits were subsequently filed by the applicant.

11.	The grounds of the amended application for removal of caveat are that:

(a)	the respondents have no interest in the land which is the subject of the caveats, 
(b) the respondents have no reasonably arguable case for the interest they claim in the land, and 
(c) the caveats have been lodged without reasonable cause.

12.	As the application for removal of caveat and the amended application were filed on 26 June 2007 and 10 July 2007 respectively, and the caveator Daphne had died on 20 January 2005 and the caveator Sophie before then, two consequences have flowed from this. The affidavit sworn by Sophie on 1 May 2002 in relation to the same land which is the subject of caveat 928x and caveat 1033x has become hearsay. Secondly, Sophie and Daphne are now not available to respond to the application to remove their caveat. 

13.	Perhaps I should also mention here that the applicant had previously been represented by different counsel and only recently was she represented by her present counsel.

Procedure in proceedings for removal of caveat.

14.	It has been held by this Court on a number of occasions that the procedure to be adopted in proceedings on an application for removal of caveat is the summary procedure. That means the Court deals with the application and determines the question of whether the caveator has a reasonably arguable case for the interest he claims to support his caveat on the basis of affidavits and submissions by counsel: Air New Zealand v Higginson [1993] WSSC 23.

15.	Any facts to be relied upon should be set out in affidavit form in a clear and precise manner. Some of the facts relied upon for the respondents in these proceedings appear in counsel’s pre-trial conference memorandum and written submissions, which are not affidavits:

16.	With respect, that is not appropriate unless the facts relied upon in the submissions or pre-trial conference memorandum by counsel are admissible and have been set out in affidavit form. That will avoid the appearance of counsel giving evidence through his submissions which, of course, is not permissible. This is crucial from the caveator’s perspective because in proceedings for removal of caveat the onus is on the caveator to show that he has a reasonably arguable case for the interest that he claims to support his caveat: Air New Zealand v Higginson [1993] WSSC 23; Chan Chui & Sons Ltd v Pereira [2006] WSSC 34 and the relevant cases cited there.

Affidavit evidence for the respondents

17.	The affidavit evidence produced for the respondents are the two affidavits of 10 December 2007 and 18 February 2004 by Martha. Even though Martha is not one of the caveators, that does not preclude the respondents from relying on her affidavits except those parts of her affidavit of 10 December 2007 which are hearsay. I am not aware of any rule of the law of evidence that will preclude the respondents from relying on Martha’s affidavits on the ground that she is not a caveator in these proceedings.

18.	The affidavit of 01 May 2002 by Sophie who has passed away has become hearsay and therefore inadmissible.

19.	The land which is the subject of the two caveats in these proceedings is described as parcel 561 and was part of the estate of one Stanley Herman Schwalger deceased, the father of the applicant, Sophie, Daphne, June and Martha who are mentioned in these proceedings. So the applicant, Sophie, Daphne, June and Martha are sisters. Sophie, Daphne and June have all died but the applicant and Martha are still alive.

20.	According to Martha’s affidavit of 10 December 2007, the homestead of the Schwalger family is on the land described as parcel 563 which was also part of the estate of Stanley Herman Schwalger deceased. It seems from Martha’s affidavit that when the estate of Stanley Herman Schwalger was administered, parcel 563 with the family homestead on it was allocated to Sonnie, one of the two sons of Stanley Herman Schwalger.

21.	When Sonnie died, parcel 563 with the family homestead on it would have been inherited by his widow Lucia and their children under the rules of succession. But by a certain family arrangement, parcel 563 was transferred to the widow and all of the children of Stanley Herman Schwalger. In return for Lucia and her children giving up parcel 563 and the homestead to the whole family, they were promised to be given parcel 566 which at that time was already registered under the name of June Pula nee Schwalger (June) pursuant to the distribution of the estate of her father Stanley Herman Schwalger.

22.	In consideration for June agreeing to transfer parcel 566 to Lucia and her children, she was transferred an undivided half interest in parcel 561 which was then registered under her mother, the widow of Stanley Herman Schwalger. The mother subsequently conveyed her other undivided half interest in parcel 561 to the applicant.

23.	Martha then says in her affidavit of 10 December 2007 that June continued to hold on to parcel 566 which in terms of the family arrangement she was supposed to transfer to Lucia and her children who had relinquished parcel 563 with the homestead to the family. When June died in 2001 parcel 566 was still registered under her name. An undivided half interest in parcel 561 had also been transferred and registered under June’s name in anticipation of her transferring parcel 566 to Lucia and her children which she never did up to the time of her death.

24.	Martha then says that some members of the family became concerned when June died but parcel 566 had not been transferred to Lucia and her children. It was then that her sisters Sophie and Daphne decided to transfer parcel 565 which they had jointly acquired from the administration of their late father’s estate and was registered under their names to their sister in law Lucia and her children.

25.	In return for Sophie and Daphne transferring parcel 565 to Lucia and her children, Ula Pula the husband and widower of June agreed to transfer June’s undivided half interest in parcel 561 to Daphne but to keep parcel 566 which was still registered under June’s name. 

26.	Martha says that the applicant had "explicit and constructive knowledge" of all these land swappings within the family as the applicant also swapped land with their other siblings. Whilst I am clear about the meaning of "explicit knowledge" in this context, I am not so sure about what is intended here by the words "constructive knowledge." 

27.	Martha then says that at a family meeting which was held at the family homestead for the funeral of their sister Sophie, the applicant and her husband gave their agreement for their sister Daphne to have half of parcel 561. Martha also says that she was present when the applicant said to tell Daphne to build her home and gas station business on part of parcel 561.

28.	Martha further says that subsequent to Sophie’s death, Ula Pula the widower of June wrote to a solicitor in Apia by letter dated 22 April 2002 advising the solicitor to convey his late wife June’s half interest in parcel 561 to his sister in law Daphne Coles whilst he and his sons will keep parcel 566 which was registered under his late wife’s name. A copy of that letter is attached to Martha’s affidavit and she says that what is said in that letter provides evidence to support what she says about an agreement given by Ula Pula to transfer June’s undivided half interest in parcel 561 to Daphne.

Comments on Martha’s affidavit evidence

29.	It would seem form Martha’s affidavit of 10 December 2007 that parcel 563 with the family homestead built on it, was part of the estate of Stanley Herman Schwalger. When that estate was administered, parcel 563 was conveyed to Sonnie Schwalger one of the two sons of Stanley Herman Schwalger.

30.	Sonnie Schwalger then died and was survived by his wife Lucia and their children. Under the rules of succession, Lucia and her children would have inherited parcel 563 from Sonnie Schwalger.

31.	However, a family arrangement was reached whereby parcel 563 was transferred to the family, that is, the widow and all of the children of the late Stanley Herman Schwalger. In that way, the family homestead on parcel 563 was kept within the family.

32.	In consideration for Lucia and her children agreeing to give up parcel 563 to the family, they were promised to be given parcel 566 which was registered under the name of June. In consideration for June transferring parcel 566 to Lucia and her children, she was to be given an undivided half interest in parcel 561 which was then registered under the name of her mother.

33.	What happened was that an undivided half interest in parcel 561 was conveyed to June on 20 September 2000 from her mother but when June died in 2001 she had still not transferred parcel 566 to Lucia and her children. So June had been conveyed an undivided half interest in parcel 561 but she never transferred parcel 566 to Lucia and her children which was the purpose for which the undivided half interest in parcel 561 was conveyed to her. As a result, some of the family members became concerned for Lucia and her children as they had agreed to give up parcel 563 to the family and in return were promised parcel 566.

34.	So Sophie and Daphne decided to transfer parcel 565 which was registered under their names to Lucia and her children. In return for Sophie and Daphne transferring their parcel 565 to Lucia and her children, Ula Pula the husband and widower of the late June agreed to transfer June’s undivided half interest in parcel 561 to Daphne.

35.	If what Martha is saying in her affidavit of 10 December 2007 is correct, then Ula Pula was merely agreeing to give up what June should not have kept because the reason why June was given an undivided half interest in parcel 561 was for her to transfer parcel 566 to Lucia and her children. So June would be making a gain without providing the consideration she was required to provide if her estate is to keep parcel 566 together with the half interest in parcel 561. That would seem, on the basis of Martha’s affidavit, to be unconscionable.

36.	Ula Pula later resiled from his agreement to transfer June’s half interest in parcel 561 to Daphne and sold June’s half interest in parcel 561 to the applicant and her husband. So Ula Pula and the other beneficiaries of June’s estate would be making a gain from the sale of June’s half interest in parcel 561 which June should not, in good conscience, have kept because she did not transfer parcel 566 to Lucia and her children.

37.	The other possible outcome from the sale of June’s half interest in parcel 561 is that Sophie and Daphne who have transferred their parcel 565 to Lucia and her children because of June’s failure to transfer her parcel 566 to Lucia and her children would be left without any land from their father’s estate. Sophie had not asked for June’s half interest in parcel 561 to be transferred to her but Daphne had. Ula Pula, according to Martha’s affidavit, had agreed to transfer June’s half interest in parcel 561 to Daphne but later sold June’s half interest to the applicant and her husband.

38.	It then appears from Martha’s affidavit that at a family meeting held at their family homestead for the funeral of Sophie, the applicant and her husband agreed that Daphne was to have half of parcel 561. Martha was also present when the applicant said to tell Daphne to build her house and move her gas station business onto parcel 561.

39.	Martha then says in her affidavit that the applicant knew of the agreement by Ula Pula to transfer June’s interest in parcel 561 to Daphne as she was well aware of the family arrangements and land swappings going on within the family. The applicant should also have known that June like all of the children of their father was entitled to only one parcel of land.

40.	It appears from what Martha is saying here that the applicant knew or should have known that each one of their father’s children was entitled to an interest in only one parcel of land. The applicant should, therefore, have known from the fact that June held parcel 566 and a half interest in parcel 561 the reason why June held an interest in two parcels of land instead of only one parcel.

Affidavit evidence for the applicant.

41.	For the purpose of these proceedings, the applicant relies on her affidavit of 29 July 2007, her supplementary affidavit of 15 February 2008, and the affidavit of Ula Faofua Pula (Ula Pula) of 29 June 2007.

42.	In her affidavit of 29 July 2007, the applicant says that parcel 561 was part of her deceased father’s estate. On 17 August 1988, her brothers Stanton Schwalger and Sonnie Schwalger who were the executors of her father’s estate conveyed parcel 561 to her mother. On 20 September 2000, her mother conveyed an undivided half interest in parcel 561 to her sister June who later died in Hawaii on 8 June 2001.

43.	By deed of conveyance dated 20 March 2002 and registered on 22 December 2003 the applicant’s mother conveyed her remaining undivided half interest in parcel 561 to the applicant. After that conveyance, June and the applicant each owned an undivided half interest in parcel 561.

44.	In May 2003, Ula Pula the widower of June and his family agreed to convey to the applicant and her husband June’s undivided half interest in parcel 561 for US$4, 000. By deed dated 19 December 2003, Ula Pula who by then had been appointed the administrator of June’s estate conveyed June’s half interest in parcel 561 to the applicant. Because the applicant and her husband are non-resident citizens, the consent of the Head of State was required under the Alienation of Freehold Lnad Act 1972 for the conveyance from Ula Pula to them. That consent was obtained on 26 January 2004. However, the conveyance could not be registered because of caveats 928x and 1033x which the applicant is now seeking to remove.

45.	Ula Pula in his affidavit of 29 June 2007 says that on 29 May 2003, he and two of his children signed an agreement to sell June’s undivided half interest in parcel 561 to the applicant and her husband for US$4, 000 which was paid. On 24 November 2003 he was appointed the administrator for June’s estate and on 19 December 2003 he executed a deed of conveyance by which June’s half interest in parcel 561 was conveyed to the applicant and her husband.

46.	Ula Pula further says in his affidavit that he has not signed a deed of conveyance for the transfer of his late wife June’s half interest to Daphne or any other person. He has also received no payment from any other person for the transfer to him or her of June’s half interest in parcel 561 except for the applicant and her husband.

47.	In the applicant’s supplementary affidavit of 15 February 2008 filed in response to Martha’s affidavit of 10 December 2007, she says that before purchasing June’s half interest in parcel 561, she and her husband were not aware of any arrangement involving Ula Pula to transfer June’s half interest in parcel 561 to Daphne. If she had been aware of any such alleged arrangement involving Ula Pula, she and her husband would have saved their money and not have purchased June’s half interest in parcel 561.

48.	The applicant further says in her supplementary affidavit that the first time she became aware of any allegation that Ula Pula had agreed to transfer June’s half interest in parcel 561 was when she received copies of the caveats lodged against parcel 561. She then spoke with Ula Pula but he denied any agreement to exchange June’s half interest in parcel 561 with Daphne.

49.	The applicant then denies what Martha says in her affidavit of 10 December 2007 that the applicant had agreed at a family meeting held for Sophie’s funeral that Daphne moved her gas station business onto parcel 561.

Applicable law

50.	For the purpose of Samoan law, this Court has developed the law which is applicable to proceedings for removal of caveat in such cases as Mackenzie v Richard Kidd Marketing [2007] WSSC 41; Chan Chui & Sons Ltd v Pereira [2006] WSSC 34; Samoa National Provident Fund v Stanley [2003] WSSC 48; ANZ Bank (Samoa) Ltd v Fatupaito [2001] WSSC 31; Public Trustee v Lio Miti et al (1995) and Air New Zealand v Higginson [1993] WSSC 23.

51.	For these proceedings for removal of the respondents caveats, the approach I propose to follow is, firstly, whether the respondents are persons who may lodge a caveat against dealings with the land in dispute and, secondly, if the respondents are such persons, have they shown a reasonably arguable case for the interest they claim to support their caveats: Chan Chui & Sons Ltd v Pereira [2006] WSSC 34 and the authorities cited there. It is not necessary in these proceedings to consider whether to invoke the Court’s residual discretion to order the removal of a caveat even though the caveator can properly claim a caveatable interest: Pacific Homes Ltd v Consolidated Joineries Ltd [1996] 2 NZLR 652 at p.656 cited in Chan Chui & Sons Ltd v Pereira [2006] WSSC 34.

52.	In relation to the second limb of the approach I have decided to follow, it is enough for the caveator to show that he has a reasonably arguable case for the interest he claims. If he can do that the caveat remains; if he fails to do so, the caveat will be removed. What is to be borne in mind is that the caveator is not required to show that he actually has the interest he claims; a reasonably arguable case for that interest is enough.

53.	In Land Law in New Zealand (2003) vol 1 by Hinde, McMorland & Sim, the learned authors state at para 10.020 (b):

"In order to sustain a caveat it is not necessary for the caveator definitively to establish his or her right to the estate or interest claimed in the caveat. What it is necessary for the caveator to do is to show a reasonably arguable case for the claim. The onus … rests on the caveator to establish – normally by affidavit and documentary evidence – a reasonably arguable case."

54.	Further on in para 10.020 (b), the learned authors go on to say:

"If the caveator does not establish an arguable case, the caveat will be removed (under s.143) or allowed to lapse (under ss.145 or 145A). If the caveator does establish an arguable case, the caveat will be sustained unless the Court exercises a residual discretion to remove the caveat or to allow the caveat to lapse".

55.	In respect of the use of affidavit evidence in proceedings for removal of caveat, this Court said in Mackenzie v Richard Kidd Marketing Ltd [2007] WSSC 41:

"I accept that in the normal way the summary procedure which is followed in proceedings on a motion for removal of caveat is unsuitable for resolving factual disputes on the affidavit evidence of the opposing parties. Such factual disputes should be left for the hearing of the substantive claims by the parties when the evidence of the deponents to the affidavits will be subjected to cross-examination. However, this does not mean that the Judge is bound to accept uncritically every dispute of fact between the conflicting affidavits. If such a dispute can be resolved on the basis of the affidavits and documents before the Judge without the need for cross-examination, then it is for the Judge to resolve such a dispute during the summary procedure proceedings.

What has not been clear is how the Judge is to proceed where the factual disputes between conflicting affidavits by the opposing parties cannot be resolved without cross-examination under the summary procedure. In such a situation, the Judge is to proceed on the assumption that the factual allegations in the affidavits for the caveator are correct because the onus is on the caveator to show that he has a reasonably arguable case for maintaining his caveat: Zhong v Wang [2006] NZ CA 242 at para (5) per Wild and Heath JJ and para (10) per William Young P".

56.	I would also refer to Chan Chui & Sons Ltd v Pereira [2006] WSSC 34 where this Court discussed the use of affidavit evidence in proceedings for removal of caveat. Essentially, in proceedings for removal of a caveat if the conflicts between the affidavits of the opposing parties cannot be resolved on the basis of the affidavits and any documentary evidence before the Court, then, for the purpose of determining whether the caveator has a reasonably arguable case for the interest claimed, the Judge should proceed on the assumption that the factual allegations in the affidavits for the caveator are correct. The reason for this is that the onus is on the caveator to show that he has a reasonably arguable case for maintaining his caveat.

57.	How the test of "a reasonably arguable case" for maintaining a caveat fits into the Court’s approach in proceedings for removal of caveat was explained in Sims v Lowe [1988] 1 NZLR 656 where Somers and Gallen said at pp 659-660

"An order for the removal of a such a caveat will not be made under s.143 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 does so … The patent clarity referred to will not exist where the caveator has a reasonably arguable case in support of the interest claimed".

Discussion

58.	Insofar as there are material conflicts between the affidavits of Martha for the respondents and the affidavits by the applicant and Ula, I have come to the conclusion that those conflicts cannot be resolved on the basis of the affidavits and documentary material before the Court even if I approach the matter robustly and realistically. It follows that where there are material conflicts between the opposing affidavits, I should, for the purpose of determining whether there is a reasonably arguable case for maintaining the caveats, proceed on the assumption that the factual allegation in the affidavits for the respondents are correct because the onus is on them to show that they have a reasonably arguable case for maintaining their caveats: Mackenzie v Richard Kidd Marketing Ltd [2007] WSSC 41.

59.	What appears from Martha’s affidavit of 10 December 2007 and the non-contentious parts of the applicant’s affidavits is that when Stanley Herman Schwalger died, his sons Stanton Schwalger and Sonnie Schwalger became the executors of his estate. During the administration of the estate of Stanley Herman Schwalger the executors of the estate distributed the land at Malie which belonged to the deceased amongst his widow and children.

60.	Parcel 563 with the family homestead on it was conveyed to Sonnie one of the executors of the estate. Parcel 561 was conveyed to the widow of Stanley Herman Schwalger and parcel 566 was conveyed to June. 

61.	Sonnie then died and parcel 563 with the family homestead on it should have gone to his widow Lucia and his children under the rules of succession. However, the Schwalger family entered into an arrangement whereby parcel 563 was transferred by Lucia and her children to the family so that the family homestead remained within the whole family. Under that family arrangement parcel 566 under the name of June was to be transferred to Lucia and her children in consideration for them giving up parcel 563 to the family. In consideration for June giving up parcel 566, she was to be transferred a half interest in parcel 561 which was under the name of her mother.

62.	What happened then was that on 20 September 2000 an undivided half interest in parcel 561 was conveyed to June by her mother. However, when June died on 8 June 2001 she had still not transferred parcel 566 to Lucia and her children pursuant to the family arrangement. This was in spite of the fact that June had been conveyed an undivided half interest by her mother in parcel 561 pursuant to the family arrangement. So at the time June died she had both parcel 566 and a half interest in parcel 561 registered under her name. On the other hand, Lucia and her children had nothing because they had given up parcel 563 to the family but June had still not transferred parcel 566 to them.

63.	Some of the family members became concerned for Lucia and her children. Sophie and Daphne then decided to transfer parcel 565 registered under their names to Lucia and her children and Ula Pula the widower of June and his family agreed to transfer to Daphne the half interest in parcel 561 which was under June’s name. This is the half interest which Martha says was conveyed to June in consideration for her transferring parcel 566 to Lucia and her children. However, June never transferred parcel 566.

64.	Subsequently, Ula Pula instead of transferring June’s half interest in parcel 561 to Daphne sold it to the applicant and her husband for US$4, 000. So Daphne who had transferred her interest in parcel 565 to Lucia and her children was left with no parcel of land from her father’s estate.

65.	It is then alleged by Martha in her affidavit of 10 December 2007 that the applicant knew of the agreement by Ula Pula to transfer June’s half interest in parcel 561 to Daphne. It is also alleged by Martha that the applicant was well aware of the family arrangements and land swappings that were going on within the family. These allegations are denied by the applicant in her affidavit of 18 February 2008. For present purposes I will assume that the allegations by Martha are correct.

66.	Turning now to the two limbs of the approach to these proceedings which is, firstly, whether the caveators are persons who may lodge a caveat and, secondly, whether they have shown a reasonably arguable case for maintaining their caveats, there are difficulties with the respondent Sophie who died before Daphne.

67.	The first difficulty in respect of Sophie is that the applicant’s application for removal of caveat 928x which was lodged by Sophie and Daphne on 21 January 2004 was only brought on 26 June 2007. This was more than two years after Sophie had died. As a result, Sophie was not around to respond to the applicant’s applications for removal of her caveat when they were filed. A further consequence of this is that an affidavit which Sophie had apparently sworn when she was alive is now hearsay and therefore inadmissible.

68.	The second difficulty in respect of Sophie is that no one has stepped in as an administrator of her estate to take her place as a party to these proceedings. There is also no evidence to show whether an administrator has ever been appointed for Sophie’s estate.

69.	The third difficulty in respect of Sophie is that it is not clear what interest could she be claiming in parcel 561 which is the land in dispute. As mentioned earlier, Sophie and Daphne transferred their interests in parcel 565 to their sister in law Lucia and her children and in return Ula Pula and his family agreed to transfer June’s half interest in parcel 561 to Daphne. Only Daphne claimed an interest in parcel 561 but not Sophie. Perhaps that is the reason why no one has come up to take Sophie’s place as a party to these proceedings.

70.	So insofar as Sophie is concerned, she does not appear to have satisfied any of the two limbs of the approach to be applied to these proceedings. She should therefore be removed as respondent from these proceedings. However, as this was not made a big issue, Sophie’s name has remained in these proceedings as one of the caveators of caveat 928x.

71.	In respect of the respondents David Christopher Payne and Luana Marissa Payne who are the administrators of their late mother Daphne’s estate, counsel for the applicant has quite properly agreed in his written submissions that those respondents are persons who may lodge a caveat. That brings me to the question of whether David Payne and Luana Payne have a reasonably arguable case for maintaining caveats 928x and 1033x.

72.	Counsel for the respondents submitted that Ula Pula by agreeing with Sophie and Daphne to transfer June’s undivided half interest in parcel 561 to Daphne whilst Sophie and Daphne transferred their interest in parcel 565 to Lucia and her children was in effect making an oral representation upon which Sophie and Daphne acted. For Ula Pula to go back on his oral representation would result in a detriment to Daphne who has given up her interest in parcel 565 to Lucia and her children. It means Daphne will have no land from her father’s estate. Ula Pula should therefore be estopped from going back on his representation and selling June’s interest in parcel 561 to the applicant and her husband.

73.	Implicit in the submissions by counsel for the respondents is that the estate of June should not keep the half interest in parcel 561 that was transferred to June in consideration for her transferring parcel 566 under her name to Lucia and her children who had given up parcel 563 to the family which included June. For the estate of June to keep the half interest in parcel 561 without transferring parcel 566 to Lucia and her children is unjust and unconscionable. Sophie and Daphne had transferred their parcel 565 to Lucia and her children because at the time of June’s death parcel 566 had still not been transferred to Lucia and her children. Ula Pula had agreed to that transfer made by Sophie and Daphne and for the half interest in parcel 561 under June’s name to be transferred to Daphne. For Ula to go back on that agreement when Sophie and Daphne had acted on it would be unconscionable.

74.	The doctrine of estoppel was discussed in detail in Liuvae v Samoa Credit Union League [1997] WSSC 13 and a number of relevant authorities in Australia were referred to. In the case of Grundt v Great Boulder Proprietary Gold Mines Ltd [1938] 59 CLR 641, Dixon J said at pp 674-675

That other must have so acted or abstained from acting upon the footing of the state of affairs assumed that he would suffer a detriment if the opposite party were afterwards allowed to set up rights against him inconsistent with the assumption. In stating this essential condition, particularly where the estoppel flows from representation, it is often said simply that the party asserting the estoppel must have been induced to act to his detriment. Although substantially such a statement is correct and lends to no misunderstanding, it does not bring out clearly the basal purpose of the doctrine. That purpose is to avoid or prevent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting. This means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it. So long as the assumption is adhered to, the party who altered his situation upon the faith of it cannot complain. His complaint is that when afterwards the other party makes a different state of affairs the basis of an assertion of right against him then, if it is allowed, his own original change of position will operate as a detriment.

75.	It is clear from the above passage that it applies to estoppel by representation. And that is the type of estoppel which counsel for the respondents submitted has arisen here.

76.	On the basis that there is an estoppel as claimed for the respondents, the next question is whether that estoppel creates a caveatable interest for the respondents in the land. This is a difficult question as there is no Samoan case on the point. I have also not been able from the time available to find any case from another jurisdiction on the point. This point is therefore arguable. In my opinion it will not be appropriate to order removal of a caveat when what appears to be the applicable law is reasonably arguable either way.

77.	On the basis that the respondents have a reasonably arguable case for a caveatable interest to support their caveats, the next question is whether a purchaser with notice of that interest should be affected by the knowledge he acquires from that notice for the purpose of removal of caveat proceedings. There is again no Samoan case on this point but my present inclination is that a purchaser with notice of a third party’s caveatable interest in the land may be affected by such notice. In my opinion, the point is reasonably arguable.

78.	It is alleged on behalf of the respondents that the applicant knew of the agreement by Ula Pula to transfer June’s interest in parcel 561 to Daphne. It is also alleged for the respondents that the applicant was well aware of the family arrangements and land swappings going on within her family. It is also alleged for the respondents that at a family meeting held for Sophie’s funeral the applicant and her husband agreed that Daphne was to have half of parcel 561 and that the applicant said to tell Daphne that she could build her house and move her gas station business onto parcel 561. All of these allegations are denied by the applicant. As the evidential conflicts which arise from here cannot be resolved on the basis of the affidavits and documentary evidence before the Court, I have to proceed on the assumption that the factual allegations in the affidavits for the respondents are correct as they bear the onus of showing they have a reasonably arguable case for maintaining their caveats.

79.	After giving this matter a great deal of consideration, I have come to the conclusion that on the basis of the submissions by counsel for the respondents and the material placed by the respondents before the Court, there is a reasonably arguable case for maintaining the two caveats at this stage. In doing so, I remind myself that the respondents are not required to show that they actually have the interest claimed to support their caveats; a reasonably arguable case for such interest is enough.

80.	Perhaps I should also mention that Ula Pula denies that he agreed to transfer his late wife’s interest in parcel 561 to Daphne. Counsel for the applicant in his well prepared and well argued submissions pointed out that even if it is assumed that Ula Pula agreed to transfer June’s interest to Daphne, that agreement was given before Ula Pula was appointed administrator of his wife June’s estate. So he had no capacity to give such an agreement on behalf of his late wife’s estate. It follows that the agreement is not valid and not binding on June’s estate.

81.	From a strictly contractual perspective, this submission has merit. However, counsel for the respondents approached the matter on the basis of the equitable doctrine of estoppel. It is not unknown that equitable principles can come into operation in a contractual context. See, for example, the judgments of the High Court of Australia in Waltons Stores v Maher (1988) 164 CLR 387 where in a contractual setting an understanding between the parties which fell short of contract was effectively enforced by relying on the equitable doctrine of promissory estoppel.

Does the applicant have standing to bring the present proceedings

82.	The question of whether the applicant has standing to bring her application for removal of caveat was not raised in these proceedings. However, it is a question which requires consideration in these proceedings.

83.	Section 24 of the Land Registration Act 1992/1993 makes provision for the giving of notice by the registrar of land upon receipt of any caveat and for an application for removal of caveat. It is similar to s.143 (1) of the Land Transfer Act 1952 (NZ).

84.	In Land Law in New Zealand (2003) vol 1 by Hinde, McMorland & Sim, the learned authors when discussing an application for removal of caveat under s.143 (1) of the Land Transfer Act 1952 (NZ) state at para 10.018:

"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 s.143 (1) of the Land Transfer Act to the High Court for an order that the caveat be removed. The requirement that the applicant be a registered proprietor is strictly enforced so that:

"(1) The Court will not entertain an application under s.143 (1) by an unregistered transferee from the registered proprietor; and 

"(2) A person who has ceased to be the registered of the estate or interest against which the caveat has been lodged has no standing to make an application under s.143 (1)"

85.	It is not clear from the material before the Court whether June’s half interest in parcel 561 still forms part of her estate or whether it has been conveyed to her husband Ula Pula and her children. But what is clear is that the applicant and her husband to whom Ula Pula has sold June’s half interest in parcel 561 are not the registered proprietors of that half interest in parcel 561. They are only unregistered transferees. When their deed of conveyance from Ula Pula was presented for registration it could not be registered because of the respondents caveats. It follows that the applicant being an unregistered transferee has no standing to bring proceedings for removal of caveat as she has done.

86.	As it also appears from Land Law in New Zealand (2003) vol 1 by Hinde, McMorland & Sim, the proper course for an unregistered transferee to follow is to present the transfer for registration and have a notice under s.145 of the Land Transfer Act 1952 served on the caveator. Section 145 is similar to s.25 of our Land Registration Act 1992/1993 which insofar as relevant provides:

"[Every] caveat shall, upon the expiration of 14 days after notice given to the caveator that application has been made for the registration of any instrument affecting the land, estate, or interest protected thereby, be deemed to have lapsed as to such land, estate or interest, or so much thereof as is referred to in such notice, unless notice is within the said 14 days given to the registrar that application for an order to the contrary has been made to the Supreme Court or a Judge thereof, and such order is made and served on the registrar within a further period of 28 days".

87.	The notice provided in s.25 of the Land Registration Act 1992/1993 should be given by the registrar to the caveator.

88.	In Land Law in New Zealand (supra), the learned authors when discussing s.145 of the Land Transfer Act 1952 (NZ) state at para 10.019:

"Section 145 of the Land Transfer Act 1952 provides a procedure by which a person wishing to register an instrument affecting the land protected by a caveat may throw upon the caveator the onus of taking action to prevent the lapse of the caveat".

89.	The applicant in these proceedings, being an unregistered transferee who wishes to register her deed of conveyance, should have followed the procedure provided in s.25 of the Land Registration Act 1992/1993 instead of applying under s.24 of the Act for removal of the caveats as she appears to have done.

Conclusions

90.	For the reasons given, I have come to these conclusions:
(a)	Caveats 928x and 1033x are to remain;
(b)	In the circumstances I make no order as to costs.

91.	This matter is now to proceed to the substantive hearing unless there are any further interlocutory matters that counsel wish to finalise first.

CHIEF JUSTICE

Solicitors
Latu & Ey Law firm
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