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Gaspard v Colonial Sugar Refining Company Ltd [1904] FJLawRp 1; [1875-1946] 3 FLR 57 (18 April 1904)

[1875-1946] 3 FLR 13

SUPREME COURT OF FIJI

Civil Jurisdiction

GASPARD

v

COLONIAL SUGAR REFINING COMPANY LTD.

Major, C.J.

April 18, 1904

Registration Ordinance, 1879-s.93 - registration of document as a deed - whether document ipso facto to be treated as a deed.

This was an action for the balance of the price of sugar-cane sold and delivered from August 21, 1897, to March 16, 1898, under an agreement dated March 16, 1894, or alternatively for damages for breach of contract. The agreement was registered as a deed under the Registration Ordinance 1879^[¹] and was stamped as a deed but was not otherwise in the form of a deed. It did however purport to give a right of way over Plaintiffs land-a right which it was contended could be granted only by deed. The only defence raised was the Statute of Limitations, 1623, 21 Jac. 1, c. 16, the cause of action having arisen on January 10, 1898, and writ issued on January 13, 1904.

HELD –

(1) An agreement cannot be made a deed by the mere fact of registration as a deed under the Registration Ordinance.

[EDITORIAL NOTE -There has to date been no substantial amendment to the Registration Ordinance, 1879 (now Cap. 36) and the relevant sections are in the same words as at the date of this judgment.] Action for moneys due under agreement for sale and purchase or alternatively damages for breach of contract.

J. H. Garrick for the plaintiff.

H. Shaw and H. M. Scott for the defendant.

H. Shaw for the defendant: An agreement cannot be made a deed by any act of the Registrar of Deeds. The Ordinance only dispenses with the formalities of sealing and delivery .of a document already a deed; it is a condition precedent to the operation of s. 9^[²] of the Ordinance that the document to be registered should first be a deed.

MAJOR, C.J.-This action raises a very simple issue. The statement of claim is practically admitted, but the defendant contends that the claim is barred by the Statute of Limitations. The cause of action arose on the 10th January, 1898, and the writ was issued on the 13th January, 1904. In answer to the defence of the Statute, plaintiff contends that the agreement sued on has become a deed by virtue of s. IX of Ordinance XI of 1879. Plaintiff further contends that defendant agreed to waive the question of the Statute. With reference to the first point, the plaintiff cannot succeed; as I agree with the contention of defendant's counsel that a condition precedent to the operation of the section of the Ordinance is that the document should be a deed, which the agreement was not. If I needed any confirmation of this view, I find it in s. VII^[³] of the Ordinance, which provides for the registration of agreements. As to the second contention, plaintiff points out no one of the three cases that would annul the operation of the Statute, but relies upon a waiver of its operation by the conduct of the parties. This conduct has to be gathered from the correspondence. I can find nothing that either implies or expresses any agreement to waive the Statute. The contention of waiver must also fail.

^[¹] Now Cap. 36, s.10.
^[²] Now Cap. 36, s.10.
^[³] Now Cap. 36, s.8.