This is an application for the extension of aat lodged by the Plaintiff against property described as Lease No. 116007 Lot 39 on DP
3483 3483. The application was made and granted on an interim basis, but was heard inter partes on 10th March 2000.
The Plaintiff was married to the Second Defendant. The First Defendant is the Second Defendant’s father. After her marriage in March
the Plaintiff and the Seco Second Defendant lived in one of the flats at the property owned by the First Defendant. The property
contains a double-storied house with several flats. The Plaintiff claims that from 1995, she made direct payments to the mortgage
loan account of the First Defendant, from her wages.
Although the writ of summons filed by the Plaintiff makes no direct reference to the nature of the interest she considers she has,
it is clear from the affidavit material before me, that she claims to have an equitable interest in the property on the basis of
common intention of the parties that her payments should give her such an interest.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The Defendants say that any payments the Plaintiff made were merely rental payments and that there was no doubt that she and her former
husband were meant no equitable rights over the property at all.
It is clear that these issues will have to be resolved after the hearing of evidence in court. It is also clear that this application
is made after what appears to be a bitter separation followed by a divorce in August 1999.
For the purpose of this application, it is clear from the bank statements annexed to the affidavit of Asha Lata Chand, sworn on 9th
Fry 2000, that the Plaintiffntiff was making payments directly to the First Defendant’s loan account at the ANZ Bank. These payments
were regular and if accompanied by evidence of a common intention to give the Plaintiff and her husband an interest in the property
itself, could give rise to a finding that the Plaintiff has an equitable share in the property.
Section 106(a) of the Land Transfer Act allows any person claiming to be beneficially interested in any by virtue of any trust “expressed or implied, or otherwise wise howsoever”,
to lodge a caveat with the Registrar of Titles. Section 110(3) of the Act allows the caveator to apply to the court for extension
of time after notice to remove the caveat has been served on him/her by the Registrar. The court may make any order as it thinks
fit.
It is clear that any interest the Plaintiff might have in the property would be defeated if the property were to be disposedn any
way, before the hearihearing of the substantive action. I am therefore satisfied that the Plaintiff has shown an arguable case for
the caveat to continue, and that the caveat should not be removed until further order of this court.
I note however that the claim indorsed on the writ of summons is far from satisfactory. I order thintiff to file and serve a statement
of claim with clarity rity as to the basis of the claim and the remedy sought, within 14 days of the date of this judgment.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> It is clearly in the interests of the parties this claim be dealt with expeditiously hereafter.
Costs are in the cause.
Nazhat Shameem
JUDGE
At Suva
ay 2000
Hbc0054j.00s
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