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Cavu v Fiji Public Trustee Corporation Ltd [2015] FJHC 170; HBC04.2015 (11 March 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 04 of 2015

IN THE MATTER OF Section
109 (2) of the Land Transfer Act

IN THE ESTATE of ILAISA MATEIYALONA CAVU
late of Wakanisila, Kalabu, Nasinu, Retired School Teacher, Deceased, Intestate.

BETWEEN:

REVEREND TEPOLA TUBUNA CAVU
of 23 Abbington Crescent, Caroline Springs, 3023, Victoria, Australia as the ADMINISTRATIX for the Estate of Ilaisa Mateiyalona Cavu (Letters of Administration Number 54229).
Plaintiff

AND:

FIJI PUBLIC TRUSTEE CORPORATION LIMITED
of Amy Street, Toorak, Suva.
Defendant

Appearance: Ms. S. Nayacalevu for the Plaintiff
Ms. R. May for the Defendant

Hearing Date: 10 March 2015
Date of Order: 11 March 2015

ORDER

1. This Originating Summons by the Plaintiff is for the removal of Caveat No. 798680 lodged by the Defendant on 5th February 2015 on Certificate of Title No. 23237 (the land) which is part of the estate of

the deceased (Cavu).

2. The Plaintiff contends that the Defendant has no locus standi to lodge a caveat. The Defendant based his entitlement to do so on the fact that the Defendant is the executor of the estate of Lavinia Baleirasea the widow of the deceased (Cavu). But the Defendant's Affidavit in Opposition makes clear that actually they are acting for the beneficiaries of the estate of the deceased Lavinia and NOT for all the beneficiaries of the estate of the testator (Cavu). The Plaintiff is the Administratrix of the estate of the deceased (Cavu), Letters of Administration having been granted to her on 21st August 2013.
   
3. It is my finding that the Defendant is not entitled to lodge the above caveat for the following reasons:
   
   • (i) The Succession, Probate and Administration Act (the Act) vide Section 6(1) requires the administrator to hold the property on trust to distribute the same. This does not mean that the widow could have claimed a direct interest in the land which is part of the estate of the deceased (Cavu). Even less can the beneficiaries of the estate of the widow who has since deceased directly claim a right to the land part of the estate of the deceased (Cavu).
     
   • (ii) Section 11(3) of the Act allows the administrator for the purposes of administration to inter alia, sell the real estate viz the land. This is what the Plaintiff intends to do in the instant case with the land and this is what she is entitled to do.
     

Therefore I make the following orders:

(1) That the Caveat No. 798680 on the land be removed

forthwith.

(2) That the Defendant is to pay the Plaintiff costs which I summarily assess at $1,000.00.

Delivered at Suva this 11th Day of March 2015.

..................................
D. Alfred
JUDGE