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Tanisiara v Hoatamauri [2011] SBHC 147; HCSI-CC 102 of 2011 (2 December 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Civil Case No.102 of 2010.

BETWEEN:

HELLEN TANISIARA and PETER TANISIARA
Claimant

AND:

GEORE HOATAMAURI and LINDA HOATAMAURI
Defendants

Date of Hearing: 23rd November 2011.

Date of Ruling: 2nd December, 2011.

Mr D. Marahare for the Claimants.
Mr P. Afeau for the Defendants.

RULING

Faukona J: This application is for summary judgment, and was filed by the Claimant on 16th August 2011 pursuant to Rule 9.57 of the Court (Civil Procedure) Rules 2007. Rule 9.64 specifically set out if the Court is satisfied that the defendant has no arguable defence to the claim or part thereof, there is no need for a trial of the claim, and the Court may give summary judgment for the applicant.

2. The Claimants are husband and wife and are purported purchasers of the property in Parcel Number 191-003-033 situated at White River, West Honiara.

3. The Defendants are husband and wife who owned a fix term estate in the above parcel number, as joint owners, and who are the purported vendors of the said property to the Claimants.

4. On 15th August 2009 a written agreement for the sale of the property for the sum of $90,000.00 was signed by the Defendants and later on 11th March, 2010, was executed by the Claimants. It would appear the agreement for the sale of the property was finally concluded on 11th March 2010, when the Claimant executed the written agreement.

5. The gist of this application is premise on rule 9.57 where the Defendants have filed a response but the Claimants belief that the Defendants do not have any real prospect of defending the Claimant's claim.

6. To proof their beliefs Mr Marahare outline evidence supporting the Claimants case. He submits that there is evidence showing the parties had entered into a written sales agreement on 15 August 2009 and conclusive on 11th March 2010. Following the execution of the sales agreement the transfer instruments were prepared by the Defendants.

7. On 10th September 2009, the Commissioner of Lands grant consent for the transfer of FTE in Parcel No. 191-003-033 to the Claimants.

8. From evidence it is clear that the Defendants did prepare the sales agreement. Answers to interrogatories filed on 5th July, 2011, affirm that.

9. Despite the evidence, Counsel for the Defendants contends that the Defendants did not sign any written agreement. That is clear from the amended defence. What purported to be a written sales agreement was what they had agreed upon orally. Mr Afeau further contends that there is need to construct the true meaning of the terms of agreement in particular paragraphs 3 and 4. Mr Afeau further submits that the Defendants agreed receiving the sum of $50,000 but it was for deposit and not as part payment.

10. Generally, deposit is paid up-front to secure the purported purchaser, that the property being the subject matter not to be dispose of to another and at the same time as circumstances progresses to final transaction, such deposit can be converted into part payment. In this case from material evidence, the Defendants seemed to contradict themselves. They admitted preparing the written agreement and then denied totally not signing the agreement. They say the agreement was in an oral form.

11. Paragraph 3 of the agreement clearly stated that $50,000 was a part payment. The Defendants deny it, that it was a deposit. The evidence of the Defendants is unreliable and self-contradictory, one which cannot sustain a defence. It appears that the Defendants may have a different agenda, which diverted their original and true intention. The true intention materialises through the process which eventually supported by the Commissioner of Land's letter for the transfer of the property.

12. There is nothing raised by the Defendants which amount to serious legal issue for consideration by the Court;[1] so as to exercise its discretionary powers[2].

13. Other issue of contention raise is in relation to the amount of $10,000.00 in the transfer documents which does not reflect the true amount in the agreement. On paragraph 5 of the transfer document the value of interest is estimated at $15,000.00 which is also do not reflect the amount of sale in the agreement. Upon examination I am satisfied that the transfer documents were prepared by the Defendants. The amounts therein varied from reality to suit stamp duty fees. I noted this may be done by consensus. In any event it is illegal. Despite accepting being the maker of the instrument Mr Afeau submits it's an issue which need to be tried and parties be cross examined why amounts varied.

14. The issue itself is not a serious legal one; it is so clear that the Defendants are solely responsible for filling the transfer forms and putting in the amount as they appear. My perception is that this is not an issue which will require consideration by the Court on trial. If the amounts differ from reality then the blame worthy is on the Defendants and there is no dispute about that.

15. Another issue argued is which party is in breach of the agreement. Counsels raise arguments on behalf of their clients blaming each other. However, the most important fact is that paragraphs 3 and 4 of the sales agreement clearly feature that the balance of $40,000.00 be paid on registration of transfer of title. Simply mean that on the date of registration of transfer of title the balance of $40,000.00 be transacted simultaneously. Practically, and by convention the instruments has to be lodged first with the Registrar of Title before any registration can be done. The fear by the Defendants is that in case the registration has been done but the balance amount is not paid. Hence hold on to the instrument with the expectation that balance be first paid before lodgement of documents. The same instinct is notable with the Claimants. They feared if the balance was paid but the instruments may not be lodged.

16. Whilst parties are eying and expecting each other as to whom to make the first move, nothing has been done for seven months. Mr Afeau argues that they are protecting their own legitimate interests. In my view it would be most proper if the Defendants make the first move by lodging the transfer documents. Registration comes after lodgement. If nothing was lodged then there can be no registration and there can be no final payment as agreed upon. If the Claimants failed to pay the balance after lodgement and registration, then the Defendants can institute a civil suit.

17. I noted this is not an issue that require a trial Court to consider. It is not an arguable case either. It is honouring the obligation as required by the agreement. By holding onto the instruments without lodgement, is absolutely incorrect and deprive the expectation of the Claimants. At the same time delay the final simultaneous transaction of registration and payment of $40,000.00

18. Another issue is in regard to whether the sale of the property to the 3rd party is with the knowledge of the Claimant. An interval of seven months without anything has created anxiety between the parties. There has already been tense and fragile relationship. One thing remains bogging is that on the same date 11 March 2010, when the Claimants have signed the agreement the Defendants sold the property to the 3rd party. The sale is not denied. It appears the Defendants have hold on to the original transfer instruments for a purpose. Seven months is not long enough. Things could have been done. It did not take years of waiting and anticipating which will warrant a disposal of the property. This implicates that the Defendants did not honour the agreement which they prepared themselves and signed by both parties. In the end the Claimants are the losers. They have lost their $50,000.00. The circumstances have permitted the Claimants to exercise their right to file a caveat to ensure the property is not sold to the 3rd party.

19. On the issue of valuation report, it is not an issue of who authorise it, but it is for the purposes of stamp duty. The value of $90,000.00 in the agreement is certainly cannot be altered. The parties have agreed upon. It is the basis upon which the parties rely to advance their intentions and obligations, and it guides and ensures they comply with. It is irrelevant to refer such issue for trial.

20. I agree with Mr Marahare that the Defendants fail to file sworn statement to support their assertions as required by Rule 9.62. Selling the property to the 3rd party on the very date the Claimants signed the agreement is a clear breach of the agreement. There is no need to go to trial to construct the intention of the parties. The agreement is clear and without any ambiguity.

21. As a matter of law the Claimants are entitled to remedy for specific performance. And have the instruments which are still in possession of the Defendants be executed. Mr Marahare refer to the cases of Loboi v Laugare[3] and SIEA v Onio[4] supported by Section 117 of the Land and Titles Act to reinforce their plea for specific performance. He is quite right in doing so.

22. There is a counter claim which has been filed. However Mr Marahare submits they have raised the same issue in defence to counter claim. I have the privilege to read the counter-claim in which the Defendants sought retention of $50,000 deposit and order for damages for breach of contract. On the overall it does not change the position of the Defendants. The breach of agreement is clear. The question is where do the damages lie and emerge from; it's hardly identified. The conclusion I would draw is that there is no prospect that any part of the counter-claim succeeding.

23. In summary this whole entire case premise on the written sales agreement drawn by the Defendants themselves, executed and should become conclusive. Later the Defendant's deny the written agreement which contradict their answer to interrogatories. The terms of the agreement is simple, brief and precise. It reflects the true intent of the parties who have complied with most of its conditions except for clause requiring registration of transfer instruments and final transaction of the balance of $40,000.00, which is yet to be done. Unfortunately, on the very date, 11th March 2010, when the claimants signed the agreement, the Defendants sold the property to a third person.

24. By holding onto the transfer instruments without furnishing them to the Claimant, and by selling the property on the day of final execution of the agreement, reflects a hidden agenda capitalising on the power of owning a title to the property with false intention to get money from purported interested buyers. Further it shows the Defendants have failed miserably to comply with the agreement.

25. There may be facts surrounding and associated with the agreement, but the obligation by the parties is well specified in simple language in the agreement.

26. Having said that, I am satisfied that there is evidence supporting the Claimants application, upon which they would rely on to belief that the Defendants has no arguable defence to the claim.

Orders.

1. An order for summary judgment in terms of the orders sought in the amended claim (Category C) filed on 7th April, 2011, pursuant to Rule 9.57 granted.

2. The Defendants to pay Claimant's costs of and incidental to this application.

The Court.

^[1] NPF Board v Maetoloa (1997) SBHC 114; HCSI-CC 171 of 1997 (8 December 1997).
^[2] Niutoea v Oge (2010)SBHC; HCSI-149 of 2008 (6 October 2010).
^[3] [2010] SBHC 38; HCSI-CC 212 of 2008 (30 July 2010).
^[4] [1997] SBCA 1; CA-CAC of 1989 (11 December 1989).