IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 254 of 1989

CHAN MILL LING 

-v-

FUNG LOY

High Court of Solomon Islands
(Palmer, J.)
Civil Case No. 254 of 1989

Hearing: 22 November, 1995 & 4 November, 1996
Judgment: 17 January, 1997

A. Nori for the Applicant 
T. Kama for the Respondent

PALMERJ: There are two applications before this court for its consideration. The first one is a Summons by the Respondent filed way back on 12 September, 1995 seeking the following orders:

“1. That the Respondent be registered as owner in common in equal shares with the Petitioner in the matrimonial property comprised of a dwelling-house in fixed-term estate parcel number 191-032-39

2. That the Registrar of the High Court execute the transfer.

3. That the Honourable Court determines a fair rent for the property of the Petitioner currently occupied by the Respondent

4. The Petitioner pays for the cost of improvements done by the Respondent in the Bokonavera property

5. Such further or other order the Honourable Court sees fit”

The second application is a Notice of Motion filed on 1st November, 1996 but later amended and filed on 4th December, 1996. The Amended Notice of Motion sought the following orders.

“1. The Respondent to vacate the Applicant’s house situate in Parcel No 191-019-31 within twenty eight days, in the alternative pay rental at $2,500.00 per month;

2. The Respondent to pay to the Applicant rent arrears of $66,098 for his occupancy of the house herein;

3. The Applicant, be allowed to offset the sum of $10,500 owing from her to the Respondent against rent arrears;

4. The Respondent to pay to the Applicant maintenance arrears for the children of the marriage of $23,122.44; and

5. Costs to be paid by the Respondent.”

Paragraphs 1 and 2 of the Summons of the Respondent and paragraph 3 of the Amended Notice of Motion of the Applicant are inter-related and so will be dealt with together. The same applies to paragraphs 3 and 4 of the Summons and paragraphs 1 and 2 of the Amended Notice of Motion.

THE DWELLING-HOUSE IN FIXED-TERM ESTATE PARCEL NO. 191-032-39 (“the Kukum property.”).

The history of this case can be traced back to sometime in February of 1990, when the Kukum property was purchased by the Applicant from one, Brown Tolosulia for a consideration of $21,500.00 (see affidavit of Chan Mill Ling filed on 11 October, 1993, at paragraph 8) though the amount disclosed in the Fixed- Term Estate Register of parcel 191-032-39 was only $17,000.00 The property was then registered in the name of the Applicant as sole owner around the same time. The affidavit evidence before the Court however showed that the property had been purchased shortly after the parties had separated and from funds obtained or acquired during the marriage. There was little or no evidence to show that the property had been purchased by the Applicant using separate funds

Accordingly, in its ruling dated 2nd November, 1994, the Court ruled that the said property was matrimonial property and that the Respondent had a 50% beneficial interest in the said property. If the property was to be sold, the sale proceeds should be distributed equally between the parties; otherwise, it should be registered in the names of both parties as owners in common in equal shares

There was however an unfortunate twist to this property. Shortly after the property was registered in the name of the Applicant, she sought to have the property sold to her sister, but not before the Respondent became aware of this intention. The Respondent accordingly slapped on a caveat on or about 9th April, 1990 and registered on or about the same date, to protect his interest which he claimed on the property. It appears that the caveat is still in force as at today’s date. Despite the registration and subsistence of the caveat, the Applicant proceeded to execute a transfer instrument in favour of her sister, Chan Mill Hua, dated 28th August, 1991, for a consideration of $21,000.00 (A copy of the said transfer instrument is annexed to the affidavit of Fung Loy filed on 7th August, 1993.)

It appears that the transfer instrument could not be processed for registration as a result of the caveat imposed by the Respondent.

The effect of the caveat on the transaction sought to be entered into by the Applicant is simply to put her and any intending transferee (in this case, her sister), on notice, of the claim of the caveator in respect of the said property; that until the validity of his claim had been tested in appropriate proceedings no dealing could law-fully be registered. The actions of the Applicant accordingly, as contained in the transfer Instrument, are deemed to have been done on notice; that is by virtue of the existence of the caveat, and is a risk taken at her own personal cost should the claim of the Respondent be substantiated. That has now been done, and found by this court to be valid. The purported transfer by the Applicant of the said property to her sister accordingly can have no effect on his beneficial interest. The Respondent is entitled therefore to have his interest registered as “owner in common in equal shares.” 

What is “fair rent” in respect of the property in fixed-term estate parcel number 191-019-31, (the Bokonavera property)?

The issue on rental goes back to the mutual Agreement signed between the parties on 22nd January, 1990, in which it was agreed inter alia, that the Respondent be allowed to use the Bokonavera property for two years commencing from 1990 to 1992 without payment of rent. The value of the rental forgone by the Applicant during that two year period was calculated at $600.00 per month. This, rate appears not to have been disputed. 

From 1992 to 1996, the Applicant then sought to charge rental on the said property as follows:

	Year	Period	M/Rental	Due	
			$	$	
	1992	1/9-31/12	720.00	8,640.00	
	1993	1/11-31/12	792.00	9,504.00	
	1994	1/1-31/12	871.00	10,454.00	
	1995	1/1-31/12	1,500.00	18,000.00	
	1996	1/1-31/12	1,600.00	19,500.00	
				66,098.00	

The Respondent has sought to argue that the rental charges made above were excessive taking into account the previous relationship of the parties as husband and wife. The Court therefore should take a more lenient approach when assessing what is fair or reasonable rental in the circumstances of the parties than in other cases. It was suggested by Mr. Kama, Counsel for the Respondent that a reasonable rental would be in the range of an annual increase of 5%.

I have taken time to carefully consider the suggestions put forward by learned Counsel for the Respondent, but with respect cannot agree that the rental rates charged above could even be contemplated as unreasonable or unfair. If we take into account the fact, that the Respondent had not paid rental for the two preceding years, which at $600 per month would have produced $14,400 in favour of the Applicant, then, the rental rates in my view are the most reasonable and favourable that this Respondent could ever have asked for I am satisfied the Applicant is entitled to her claim for rent arrears at $66,098.

There is one other matter which needs to be addressed. This relates to the specific order sought in paragraph 1 of the Amended Notice of Motion; that the Respondent to vacate the Bokonavera property or to pay rental at $2,500 per month. I have thought over this matter and come to the conclusion that the decision to charge the Respondent rental rates at $2,500 per month is a matter which the Court should now leave to the Applicant and Respondent to sought out amongst themselves in true business-like fashion and not to have a finger in such business dealings. The Respondent has enjoyed at least seven years on the said property under the protective covering of a court order for reasonable rent to be charged. He has had ample time to settle down and to sort out his financial and business affairs. It would simply be not fair to the Applicant every time she wishes to increase rental charges or to make any decision affecting rental rates to come under the scrutiny of the court all the time. 

The orders of the court accordingly as to reasonable rental in respect of that property should now be discharged. It should now be left as a matter between the parties to sort out amongst themselves. It is not necessary therefore to make any orders in respect of the order sought in paragraph 1 of the Amended Notice of Motion filed on 4th December, 1996 

IMPROVEMENTS DONE AT BOKONAVERA PROPERTY

The value of the improvements done on the Bokonavera property by the Respondent was put at $18,000. This was by way of an extension to the building and included a bed-room, kitchen and a living room. Unfortunately the Respondent did not obtain the permission of the Applicant first before embarking on the extension. He however now claims a refund of his expenses. In normal circumstances, before any extension or improvements are done, the consent of the owner or landlord would have been sought first, otherwise the costs of the extensions or improvements, if not agreed to would be borne by the tenant himself. The circumstances in this case however, I would not regard as normal in the sense that the parties involved are formerly husband and wife, and that their relationship in having their divorce and property settled had not been amicable and cordial. To some extent therefore, room must be given for such behaviour and conduct I am prepared accordingly to allow the costs of the Respondent in making the extensions and improvements, to be deducted from the amount of rental due. In making this decision, I also bear in mind that the Applicant would ultimately benefit nevertheless from the extensions made.

MAINTENANCE

The Applicant claims that maintenance arrears now stand at $23,122.44. The Respondent disputes this amount, claiming that some payments had been made and therefore the amount should be less. In the affidavit of Chan Mill Ling filed on 21st November, 1995, at paragraph 7, the amount outstanding as at December, 1995 was calculated at $18,773.89. That figure however had been calculated on rates which were incorrect. The rate of maintenance as approved by this Court had remained at $300 per month effective from 1990. No increases had been sought on this amount. Accordingly, for the period from January 1990 to December, 1996, the total amount of maintenance that should have been paid is $25,200 (300x12x7). According to the same affidavit evidence of Chan Mill Ling at paragraph 7, total payments made up to December, 1995 amounted to $8,000 do not have details for the year 1996, whether any further payments had been made by the Respondent. If so, those payments should also be deducted from the total amount outstanding as at December, 1996.This stands at $17,200 according to my calculation. Judgment is given to the Applicant in respect of this sum.

It should be pointed out that by Order dated 3rd February, 1994, an order was made for arrears of maintenance to be paid at the rate of $150 00 over and above the maintenance rate of $300 until completed. It appears that the Respondent had never complied with that as well. That order pertaining to arrears however is now immaterial in view of the fact that judgment is now given in respect of the total sum and is due forthwith, failing which the Applicant may take other enforcement measures against the Respondent. The maintenance rates however remain unaffected.

It is my hope that the orders now made should finalise matters in this case and also deal with the orders sought in the applications of the parties.

ORDERS OF THE COURT:

1. The Respondent being owner of 50% of the beneficial interest in Fixed-Term Estate Parcel No. 191-032-39, is hereby entitled to be registered as owner in common in equal shares with the Applicant, Chan Mill Ling in respect of the said property. Accordingly, it is ordered that he, Fung Loy be registered as such.

2. In the event that difficulties should arise in effecting the necessary registration, the Registrar of the High Court shall execute the transfer document.

3. (a) Judgment in favour of the Applicant for rental arrears at $66,098 less costs of extension and improvements on the property of $18,000.

(b)Discharge order of the Court contained in the Judgment dated 2nd November, 1994, pertaining to the requirement that the rental rates charged be reasonable.

4 Judgment in favour of the Applicant for arrears in maintenance at $17,200 less any other payments proved to have been paid and not accounted for in this judgment.

5. Order that maintenance for the children of the marriage to continue at the rate of $300 per month.

6.Whilst custody of the three children of the marriage remains with the Applicant reasonable access must be granted to the Respondent, including week-ends and holidays when the children can stay with him

7. Each party to bear their own costs.

THE COURT.