HIGH COURT OF SOLOMON ISLANDS

Case name: 	HDD Development Ltd v Vaike 	
		
Citation:		
		
Date of decision: 	8 May 2025	
		
Parties: 	HDD Development Limited v Maybellyn Vaike, Maybellyn Vaike, Lever Solomons Limited, Maybellyn Vaike, Lever Solomons Limited, HDD Development Limited, Attorney General	
		
Date of hearing: 	10 and 11 March 2025	
		
Court file number(s): 	225 of 2019	
		
Jurisdiction: 	Civil 	
		
Place of delivery: 		
		
Judge(s): 	Lawry; PJ	
		
On appeal from:		
		
Order:	1. There is judgment for the Claimant.
2. The First Defendant and the Second Defendant are to give vacant possession of the Fixed Term Estate PN 192-004-137 within 60 days of the delivery of this judgment.
3. Any erections, buildings or trees that are on the land 60 days after delivery of this judgment are the property of HDD as the owner of the Fixed Term Estate PN 192-004-137.
4. There is a permanent restraining order against the First Defendant and the Second Defendant their servants, families, relatives, agents or those claiming through them from entering on to the Fixed Term Estate PN 192-004-137 after 60 days from the delivery of this judgment.
5. The First and Second Defendants are to remove all human remains from any burial site on the Fixed Term Estate PN 192-004-137 where such burial occurred after 1999.
6. I declare that the First Defendant and the Second Defendant has no equitable, contractual or legal interest on the Fixed Term Estate PN 192-004-137 after 60 days from the delivery of this judgment.
7. I declare that the First Defendant has an equitable interest in the proceeds of sale of the Fixed Term Estate PN 192-004-137 being 27% of such proceeds.
8. I order the Third Defendant to pay the sum of $216,000.00 to the First Defendant within 30 days from the delivery of this judgment.
9. The Third Defendant is to pay to the First Defendant interest on the sum of $216,000.00 at the rate of 5% per annum from 23 August 2023.
10. On the Counterclaim the Counterclaimant is not entitled to and order declaring that the Counterclaimant has and overriding interest in nor an equitable interest in the Fixed Term Estate PN 192-004-137.
11. The Counterclaimant is not entitled to an order that the First and Second Defendants by Counterclaim are statute barred from recovering the Fixed Term Estate PN 192-004-137.
12. The Counterclaimant is not entitled to an order rectifying the Fixed Term Estate Register of PN 192-004-137 in favour of the Counter Claimant. 
13. The Third Defendant in the Claim is to pay the costs of the Claimant on an indemnity basis.
14. The Third Defendant in the Claim is to pay the costs of the First Defendant in the Claim and the Third Defendant by Counterclaim on the standard basis.
15. The Second Defendant in the Claim is to bear her own costs.
16. If the costs are not agreed they are to be taxed.	
		
Representation: 	Ms J Soaika for the Claimant and Second Defendant by Counterclaim
Mr L Kwaiga for the First Defendant and the Second Defendant and the Counter Claimant
Ms A Willy for the Third Defendant and the second Defendant by Counterclaim
Ms C Bird for the Third Defendant by Counterclaim

Catchwords: 		
		
Words and phrases:		
		
Legislation cited:	Limitation Act S 9 (2)[cap 18], S 35
Land and Titles Act S 224, S 224 (1), S 225 (1)(a), S 225 (5), S 114 (i), S 114 (g), 	
		
Cases cited:	Pana v Sivoro [2018] SBCA 2, Aberfoyle Plantation Limited v Cheng [1960] AC 115, Scott v Rania [1966] NZLR 527, New Zealand Shipping Company v Societe des Ateliers de France [1919] AC 1, Offa v Levers Solomons Limited [2022] SBHC 12, 	

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 225 of 2019

BY ORIGINAL ACTION

BETWEEN:

HDD DEVELOPMENT LIMITED 
 (Owner of Fixed Term Estate)
Claimant

AND:

MAYBELLYN VAIKE 
(As the Administrator of the Estate of Commines Vaike)
First Defendant

AND:

MAYBELLYN VAIKE
(In her Personal Capacity)
Second Defendant

AND:

LEVER SOLOMONS LIMITED
Third Defendant

BY COUNTERCLAIM

BETWEEN:

MAYBELLYN VAIKE
 (As the Administrator of the Estate of Commines Vaike)
Counter Claimant

AND:

LEVER SOLOMONS LIMITED
1st Defendant by Counterclaim

AND:

HDD DEVELOPMENT LIMITED
(Owner of Fixed Term Estate)
2nd Defendant by Counterclaim

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Lands and the Registrar of Titles)
3rd Defendant by Counterclaim

Date of Hearing: 10 and 11 March 2025
Date of Decision: 8 May 2025

Ms J Soaika for the Claimant and Second Defendant by Counterclaim
Mr L Kwaiga for the First Defendant and the Second Defendant and the Counter Claimant
Ms A. Willy for the Third Defendant and the second Defendant by Counterclaim
Ms C Bird for the Third Defendant by Counterclaim

Lawry; PJ
JUDGMENT 
1. 	Maybellyn Vaike [‘MV’] lives at Henderson on a block of land that is registered to HDD Development Limited [‘HDD’], the Claimant in this case. That block of land was identified as Lot 402 and is now registered as the Fixed Term Estate parcel number 192–004–137 [‘the land’]. It is more than one hectare in area.
2. 	MV has lived on the land since 1999. In 1999 she was aged 19 years. She initially lived with her father and family on the land. She has since married and built her own house, also on the land.
3. 	Her father was named Commines Vaike [‘CV’]. In 1999 the land was owned by Lever Solomons Limited [‘LSL’], the Third Defendant in the claim. The land had previously been part of a plantation owned by LSL. Some of the land owned by LSL was subdivided into blocks. One of those blocks was lot 402. In 1999 the land was offered for sale to Commines Vaike. The land did not have a separate title but was one of several blocks on the one title.  The offer was made on behalf of LSL by Russell Islands Plantations Estates Limited. The offer was contained in a letter dated for March 1999. The purchase price for the land, including survey fees was $15,161.00.
4. 	The offer required the purchase price to be paid upon the acceptance of the offer and that the legal documentation was required to be completed by 31 August 1998. The year for completing the legal documentation must have been an error as the letter was sent some eight months after 31 August 1998.
5. 	The offer was recorded as being open for 21 days. If the offer was not accepted within that time LSL reserved the right to offer the land to other interested parties and to refund the deposit. The offer also recorded that once the offer was accepted, the solicitor for the vendor would be instructed to prepare the contract.
6. 	A contract was prepared and is recorded as ‘Agreement for sale of land’. The lawyer for LSL must have prepared the contract and sent it to Mr. Vaike who signed it and returned it to the lawyer. The reason for this conclusion is that on 26 May 1999 the lawyer for LSL sent a letter to Mr Vaike under the heading ‘Lot 402 Lungga’ in the following terms: 
	“I enclose your copy of the contract signed by levers. Please let me have the transfer for signature by my client.”
7. 	The agreement was dated 10 May 1999, with the vendor being recorded as ‘LSL’ and the purchaser recorded as ‘Commins Vaike’. The agreement recorded that the purchase price is $14,076.00 calculated at the rate of $12,000.00 per hectare or part of together with survey fees of $1085.00. Paragraph 5 of the agreement recorded a different arrangement from that set out in the offer. Paragraph 5 reads:
	“50% deposit shall be paid to the vendor and the balance shall be paid by bank cheque on the completion date hereinafter referred to.”
8. 	Paragraph 6 records: 
	“completion shall take place at the office of the vendors solicitor within the period of 30 days from the date the subdivision of the land is registered or from the date the Commissioner of Lands gives his consent to the transfer whichever is the later (“the completion date”). 
9. 	It is common ground that Commines Vaike paid $100.00 for the identification of the boundaries and a part payment of the deposit being $4,000.00. The receipt for the $4,000.00 provided to the Court records the receipt as being provided by CEMA which I understand is the copra export organisation ‘Commodity Export Marketing Authority’. The details of the receipt indicate that $4,000.00 cash was received on 11 March 1999 from ‘Commins Vaike’ for ‘Lungga Land Deposit Lot 402’. In the closing address for LSL Ms Willy submitted that there is no evidence that the deposit reached LSL however at paragraph 4 of the Statement of Case in the Third Defendant’s defence to the amended claim the following appears:
	“$3,480.50 of the 50% deposit required by the contract was still outstanding after the agreement was signed on 10 May 1999.”
10. 	The agreement signed on 10 May 1999 records the purchase price as being $14,076.00 plus the survey fees of $1,085.00. That makes a total of $15,161.00. Half of that amount is $7,580.50. The deposit required to be paid was then $7,580.50. CV paid $100.00 for identification of the boundaries and $4,000.00. Why the identification of the boundaries should count as part payment of the deposit has not been explained but if the $4,100.00 is subtracted from the required deposition the balance would be $3,480.50 as acknowledged in the defence to the amended claim. I conclude that the deposit was received by LSL.
11. 	Having paid part of the deposit, CV moved onto the land with his family and started to develop the land by building a house, planting trees and establishing gardens. He lived on the land with his family until his death in 2017. There is no doubt that LSL acquiesced to CV and his family moving onto the land and remaining there. MV deposed in her sworn statement filed on 1 December 2020 that her father was allowed by LSL to occupy the land at the date of the Agreement. That evidence was not challenged.  I accept that LSL did more than acquiesce in CV and his family taking possession of the land.
12. 	The clear expectation of both parties was that CV would complete paying the deposit and forward the transfer document to LSL to sign. LSL would then seek the consent of the Commissioner of Lands and a new certificate of title would issue for Lot 402. CV would then pay the balance of the purchase price. None of these things happened.
13. 	During the first three to four years of that occupation, Solomon Islands suffered from the civil unrest referred to as ‘the ethnic tensions’. It is also common ground that CV did not ever pay the balance of the deposit nor the balance of the purchase price.
14. 	Sometime later, there were changes in the directorship of LSL. Maurice Mae and Oliver Salopuka were appointed as directors in 2017. The new directors were not aware of the agreement to sell the land to CV. LSL however are deemed to have that knowledge. Mr Salepuka was the director who was responsible for land dealings. The directors were however aware that structures had been erected on the land and surrounding properties. They decided to sell blocks of land. They concluded that the buildings were semi-permanent houses occupied by settlers. Mr Salopuka deposed that the directors ‘persistently’ arranged for notices to be given to those on the land to call into the offices of LSL if they have any interest or dealings on the land. No-one came forward. Similar advertisements were placed in both the Island Sun and Solomon Star newspapers. The issue of the status of those occupying the land was discussed with directors of the Claimant. Those occupying the land were described as illegal settlers.
15. 	It is accepted that MV met with one of the directors, Maurice Mae and by email sent him copies of the Agreement for sale of land and the receipts for the $100.00 and the $4,000.00 paid to CEMA and a map. The date of the email was 15 January 2018.  The body of the email reads: 
	“Hi Maurice,
	Refer to the attachments (documents) regarding Lunga Land as discussed during the weekend. I will get you the Maps as soon as I get them from the Min. Lands.”
16. 	Mr Mae was not a director who dealt with the land issues. I find that the meeting between MV and Maurice Mae was an informal encounter. She said that she agreed to pay the balance of the purchase price. Mr Mae denied that he ever agreed to accept that proposal and says he was not even in a position to do so as he was not the director who dealt with the lands belonging to LSL. The email supports this view as it was placing before Mr Mae information that may assist the directors in coming to a decision. I accept his evidence.
17. 	In 2018 LSL entered into an agreement to sell the land to HDD. It was transferred to HDD on 24 May 2018. Before the transfer, the directors of HDD had been aware of the structures on the land and people being present on the land. They made enquiries with LSL and were told that the people were illegal settlers. They conducted a search of the title and found there was no interest registered against the title. The amount paid for the land was $800,000.00. The land was sold on an ‘as is where is’ basis.
18. 	HDD have brought a claim for vacant possession of the land. The relief sought is set out in the Amended Claim as follows: 
"(1) 	“An order for immediate vacant possession of the Fixed Term Estate in Parcel No. 192-004-137. 
(2) 	An order that in the event the First and Second Defendants refuses to remove any erections, buildings and trees on the land, the ownership follows the land.
(3) 	A permanent restraining order against First and Second Defendants, their servants, families, relatives, agents or otherwise from trespassing into the Claimant’s land.
(4) 	An order for the immediate removal of any unauthorised burials done on PN192-004-137.
(5) 	An order for the immediate dismissal of any equitable, contractual, or legal rights or interests claimed by the First and Second Defendants.
(6) 	Cost against the First and Second Defendants on indemnity basis to be taxed if not agreed.”
Alternative/Secondary Relief (Against Third Defendant):
(1)	In the event the claim against First and Second Defendants fails, an order that the Third Defendant be liable to indemnify the Claimant for the value of the land bought, with interest and for the loss suffered and costs incurred.
(2)	An order that such loss be assessed if not agreed.
(3)	Costs of this action on indemnity basis be borne by the Third Defendant, to be assessed if not agreed.
(4)	Any other order(s) the Court deems fit.”
19. 	CV died on 3 July 2017. The First Defendant named in the claim is MV as administrator of his estate [‘the Estate’]. The Second Defendant is MV who continues to reside on the land with members of her family. LSL is the Third Defendant against whom HDD seeks relief in the event that HDD is unsuccessful against the estate of CV and against MV. I accept that MV is involved both in her personal capacity and as the administrator for the estate.
20. 	The Estate has brought a counterclaim. Significantly MV in her personal capacity has not done so. The Counterclaim for the estate seeks the following orders:
"(1) 	An order declaring that the Counter Claimant has an overriding interest in PN 192-004-137;
(2) 	An order declaring that the counter claimant has an equitable interest in PN 192-004-137;
(3) 	An order declaring that the First and Second Defendants by counterclaim are statute barred pursuant to section 9(2) of the Limitations Act [Cap 18] from recovering PN 192-004-137.
(4) 	Consequential to orders 1, 2, and 3, an order rectifying the FTE Title Register of PN 192-004-137 pursuant to section 229 of the Land and Titles Act in favour of the Counter Claimant”
21. 	It is necessary to deal with the counterclaim and the defence put forward by MV before dealing with the claim. CV and his family were permitted to take possession of the land by LSL. It was not a term of the contract. There was no consideration paid in order to do so. The expectation was that CV would complete his obligations to LSL. The right to possession of the land was a bare licence. That licence was not withdrawn by LSL. The licence did not survive the death of CV.
Prescription
22. 	When CV took possession of the land he did so with the consent of LSL. Section 224 of the Land and Titles Act [‘the Act’] provides:
	“224-(1) The ownership of an estate or a registered lease may be acquired, subject to Part VII, against the person registered as the owner of the estate or the lease, as the case may be, by peaceable, overt and uninterrupted adverse possession of the land comprised in the estate or lease for a period of twelve years:”
23. 	The Estate claims that it has acquired the interest of LSL in the estate. However section 225(1)(a) of the Act provides: 
	“225.- (1) For the purpose of section 224 –
	(a) possession of land shall be adverse possession when it is possessed by a person, not being the owner, without the permission of the person lawfully entitled to possession and accordingly possession by a person of land comprised in a lease without the permission of the owner of the lease shall be adverse possession against that owner but not against the owner of estate or lease from whom the owner of the lease derives title;
24. 	Possession by CV was with the permission of LSL. It was therefore not adverse possession. On the evidence before me it was not possession that was subject to any conditions. Counsel for the Estate argues that section 5 of the Limitation prevented LSL from bringing proceedings to require CV to complete his obligations under the contract. He submitted that once LSL had lost the power to sue for specific performance of the contract CV became a squatter on the land and was in possession of the land without the consent of LSL. Counsel submitted that any proceedings for specific performance of the agreement would need to be brought within six years of the signing of the contract which would be 11 May 2005.
25. 	The right to possess the land was not a condition of the contract. LSL consented to CV occupying the land. It follows that he was not in adverse possession of the land in 2005. It is irrelevant that the directorship of LSL changed. CV’s licence to possession continued as it was not withdrawn. It was a right that was personal to CV and came to an end at his death.
26. 	The right for CV to be in possession was the right relied on by MV when she began living on the land. Counsel argues that she was in adverse possession from either 1999 when she moved on to the land or from 2005 when the power to sue was said to be lost. That submission ignores section 225 (5) of the Act which provides:
	“(5) Where from the relationship of the parties or from other special cause it appears that the person in possession of land is or was in possession on behalf of another, his possession shall be deemed to be or to have been the possession of that other.”
27. 	The possession by MV was clearly the possession of CV as MV occupied the land because of the possession of CV. It follows that MV’s possession of the land was not adverse possession until the death of CV. Her adverse possession was interrupted by the commencement of these proceedings in 2019. She therefore has no basis to claim acquisition by prescription. As set out above it is acknowledged that she has not brought a claim for acquiring the property by adverse possession in her own right although counsel did make closing submissions to that effect. She did however rely on a claim of acquisition by adverse possession as a positive defence to the claim.
The interest that arose when LSL permitted CV to take possession of the land
28. 	Paragraph 4.4 of the Defence filed on behalf of the Estate pleads that after executing the agreement, on 26 May 1999 the solicitor for LSL sent a copy of the executed agreement to CV and requested that CV send the transfer to him for signing. The paragraph asserts that this implied that the payment made by CV had been accepted. Paragraph 4.5 then provides as follows:
	“The 3rd Defendant (which is LSL) purportedly permitted the late Commines Vaike and his family and relatives to take possession of Lot 402 or PN192-004-137 thereafter”
29. 	This is consistent with the evidence of MV that LSL allowed the possession of the land.
30. 	The effect of this is that the possession could not meet the test for being adverse possession. The Estate argues that it became adverse possession when CV failed to honour his part of the agreement and LSL failed to commence proceedings against him for specific performance. I reject that argument. The first reason it must be rejected is that it is contrary to what the Estate pleaded at paragraph 6.3 of the defence which pleads:
	“The First Defendant denies that any person residing on PN 192-004-137 was an illegal settler or squatter.”
31. 	The possession was not a term of the agreement and was not with any consideration. It was therefore a bare licence which was not withdrawn. It terminated on the death of CV.
32. 	MV acquired her right to occupy from the licence given to CV as pleaded in the Estate’s defence. As the licence came to an end with the death of CV, the adverse possession claimed by MV could not have commenced until the death of CV. That adverse possession has been interrupted by the commencement of the proceedings against her. It follows that neither the Estate not MV can claim acquisition by prescription.
33. 	Counsel for the Estate and for MV argues that section 35 of the Limitation Act has resulted in the title of LSL being extinguished. Section 35 however is concerned with the extinguishment of title to land by prescription. If prescription is made out and the occupier becomes entitled to be registered as the owner of the estate it follows that the title of the former owner of the estate is extinguished. Section 35 gives practical effect to this process. In the present case the land was not acquired by prescription. Section 35 therefore does not assist the Estate or MV.
34. 	For this reason any claim by the Estate or by MV for an overriding interest in reliance on section 114(i) must fail.
35. 	MV asserts she also has an overriding interest in the land by virtue of Section 114(g) of the Act. In spite of the directions from the Court of Appeal at paragraph [31] she has not identified what that interest might be. She pleads that she is not a party to the agreement between LSL and CV. Other than her occupation of the land she has not identified any other basis for claiming a personal interest in the land. She has brought no counterclaim in the proceedings. She asserts she has been in adverse possession of the land while pleading she was not in unlawful possession. If she was in possession without the consent of the owner she would not be in lawful possession.
	The Court of Appeal in Paza v Sivoro [2018] SBCA 2 said at paragraph [24]:
	“Section 114 (g) of the Land Titles Act makes the rights of the registered owner of land subject to the rights of a person in actual occupation. Self-evidently the occupation in (g) must be lawful occupation. Subsection (g) would not protect unlawful occupation of land.”
36. 	MV has not established any overriding interest in reliance on section 114(g) of the Act.
The 1999 Agreement
37. 	Counsel argues that the payment of the purchase price by CV was not required until the subdivision of the land was completed and the Commissioner of Lands had given his consent. The agreement at paragraph 6 set out in paragraph 8 of this judgment makes that clear. However, the solicitor for LSL had sent CV the signed agreement. The full deposit had not been paid and CV did not send through the transfer documents as required. If he had done so the identification of the document would appear in the list of documents discovered by the parties, in particular by the Estate.
38. 	It is noted that the agreement for the sale of land made time of the essence. In Aberfoyle Plantations Limited v Cheng [1960] AC 115 the Privy Council in the speech of Lord Jenkins said:
	“But subject to this overriding consideration [the true construction of the agreement], their Lordships would adopt, as warranted by authority and manifestly reasonable in themselves, the following general principles:
(i) 	where a conditional contract of sale fixes a date for the completion of the sale, then the condition must be fulfilled by that date;
(ii) 	where a conditional contract of sale fixes no date for completion of the sale, then then the condition must be fulfilled within a reasonable time;
(iii) 	where a conditional contract of sale fixes (whether specifically or by reference to the date fixed for completion) the date by which the condition is to be fulfilled, then the date so fixed must be strictly adhered to, and the time allowed is not to be extended by reference to equitable principles.”
39. 	This approach has been settled law. It was applied in the New Zealand Court of Appeal in Scott v Rania [1966] NZLR 527 (CA) where McCarthy J said:
	“Notwithstanding that a condition , such as :subject to my being able to arrange mortgage finance” has not been fulfilled, a party through whose default that non-fulfilment has occurred, if that is the case, may not assert non-fulfilment, for it is a settled principle of law of great antiquity and authority that in these matters no one can take advantage of the existence of a state of things which his default has produced: New Zealand Shipping Company v Societe des Ateliers de France [1919] AC 1.”
40. 	The solicitor for LSL was not required to seek the approval of the Commissioner of Lands and to pursue the subdivision until CV had made payment in full for the deposit and sent through the transfer documentation. He was required to do those two things not by a specific date but within a reasonable period of time. What that time may be may vary in the circumstances. Those circumstances include the initial offer was for the full purchase price to be paid on the signing of the agreement. I bear in mind the turmoil of the ethnic tensions. By having done neither after six or more years had passed could not possibly be said to be reasonable. He had done neither for 17 to 18 years. LSL however have had the use of the partial deposit since 1999. That deposit represented 27% of the purchase price.
41. 	Both LSL and the Estate plead that the other has taken no steps to assert its rights. While the principal failure was on the part of CV for not completing his obligations, LSL has at the least had institutional knowledge of the arrangement with CV and has taken no steps to cancel the contract. The reason for this has become clear in that the directors of LSL did not in fact have knowledge of the arrangement. I accept that considerable steps were taken to enquire whether anyone had an interest in the land. This was done by serving notices to those on the land and by advertisement in two newspapers in the area.
42. 	Counsel for the Estate and MV submitted that LSL had failed to bring proceedings to move those occupying the land from the land. They allege that the cause of action arose when they took possession of the land. They further allege that after they had been in occupation for 12 years section 9(2) of the Limitation Act prevented LSL from commencing proceedings to recover the land. That is not a correct statement of the law. CV and those claiming through him were in possession of the land with the agreement of LSL. If there was a cause of action it was a continuing cause of action while the land was occupied. There could not be a cause of action until the licence to occupy had been withdrawn or otherwise come to an end.
43. 	Both counsel plead the principal of laches where equity does not assist those who sit on their rights and fail to take action. It is true that neither LSL nor the Estate (nor CV) have asserted their rights in a timely fashion.
44. 	The Court of Appeal made it clear to both the estate and to LSL that a claim based on contract would require clarity in pleading and evidence. I have not had the benefit of either. I accept that there has been evidence about the interaction between MV and Mr Mae. The estate however does not plead that there was any variation or re-igniting of the contract arising from that interaction. In terms of the evidence they were correct to make no such claim.
45. 	I find that for the reasons set out in Aberfoyle Plantations Limited v Cheng and in Scott v Rania the Estate could not claim anything other than an equitable interest in part of the title. The Estate certainly cannot succeed in having title transferred to it. After all CV had not fulfilled his side of the bargain. As the Court said of the Claimants in Offa v Lever Solomons Limited [2022] SBHC 12: 
	“They were not entitled to have the estates registered in their names until they completed their obligations under the agreement. They had not done so by 2000 and have done nothing since to complete their obligations. The First Defendant was under no obligation to transfer the estates to them. They have not acquired the right to be registered by their continued failure.”
46. 	At paragraph 33 of the Estate’s Defence and Counterclaim, the Estate alleged that the transfer to HDD was marred by mistake and/or fraud. There are two particulars provided in support of this allegation. The first was that the transfer occurred in spite of the agreement made with CV in 1999. The second was that CV had possession of the land and that HDD and LSL knew or ought to have known of such possession prior to the transfer of the title to HDD.
47. 	I find on the evidence that HDD did not know of such possession. They did not know of the agreement. They had taken reasonable steps to ascertain who was on the land. By the time of the agreement and transfer CV was not in possession of the land. He had already died. MV was on the land but she claims to have been there in adverse possession. LSL are deemed to have had knowledge of the agreement and one of the directors Mr Mae had received a copy by email before the transfer to HDD. However, CV had not purchased the land. He had paid a portion of the required deposit to CEMA which must have found its way to LSL, although there is no evidence when that happened. He had not pursued the agreement further. He certainly had not acquired title to the property. At paragraph 21 of the closing submissions for the Estate it is submitted that LSL sent the instrument for transfer to CV after accepting the deposit. That is not strictly correct. A part payment of the deposit was paid to CEMA. The document sent to CV was not the instrument for transfer it was the signed agreement. The request was for CV as the proposed purchaser to send the proposed transfer instrument to the solicitor for LSL.
48. 	That procedure is in accordance with accepted practice. CV did not send the instrument of transfer. He did not pay the rest of the deposit. There is no evidence before me that up to his death he had done anything to suggest to LSL that he intended to honour the agreement. The estate has pleaded that LSL was out of time to recover the balance of the deposit relying on the agreement. He had taken no steps within a reasonable period of time to acquire the land. His right to be on the property was a bare licence from LSL. LSL had clearly regarded the agreement as at an end. There was no encumbrance to prevent LSL from transferring the land to HDD. CV had certainly not acquired the property. I conclude that there was no mistake or fraud in transferring the land to HDD.
49. 	The Estate is not entitled to have the title transferred to its name. Neither the estate nor MV are entitled to remain in possession of the property as the right to occupy the property came to an end in 2017. The Estate is not entitled to enforce the contract in which CV was in default. However the most that could be said was that CV had acquired an equitable interest in the land when he paid part of the deposit. He and those claiming through him have had the benefit of residing on the property for a quarter of a century. I have found that LSL permitted them to occupy the property because of the expectation that CV would complete the purchase. LSL permitted that possession without consideration. LSL was paid $800,000.00 for the land when it sold it to HDD. As LSL had already accepted the partial deposit from CV in 1999, which was 27% of the value of the land at the time, I find that LSL’s ownership was subject to that equitable interest. The Estate is therefore entitled to 27% of the purchase price paid by HDD. To find otherwise would be to permit LSL to be unjustly enriched at the expense of the Estate.
50. 	Counsel for the Estate and MV has challenged the agreement to transfer title to HDD on the basis that it is said to bear the name of only one of the directors of HDD. That was raised for the first time in the closing address after counsel for HDD had presented its closing address. It was not pleaded by the either Estate or by MV. I therefore put that submission to one side. It should not have been advanced.
51. 	HDD has purchased the land from LSL as the registered owner of the land. While the agreement was on the basis of ‘as is where is’ I have not been given assistance as to the effect of that provision. I find it must mean that LSL makes no representation that the land will be suitable for the purpose for which the land has been acquired.
52. 	Those in occupation are not entitled to be there. HDD is therefore entitled to the orders it seeks in the first five claims for relief sought in the Amended Claim.
53. 	I note that counsel has been unable to resolve this dispute notwithstanding that LSL is likely to have been in a position to provide an alternative parcel of land to HDD that would meet the requirements of HDD. That would have left LSL in a position to enter into settlement discussions with the Estate. The Court has made it clear that if the parties were not able to come to a suitable settlement the Court would give judgment.
54. 	The Estate and MV have no doubt made arrangements in relation to moving from the land. They have known for a considerable period of time that they had not completed payment of the deposit let alone completed paying the balance of the purchase price of the land. The Estate has treated the land as owned by it even though it had not purchased it. However I accept that it will take time to remove their buildings and the remains of those buried on the land. I therefore allow 60 days for that purpose. Any building erected on the land after 60 days from the date of delivery of this judgment will be deemed part of the land and become the property of HDD.
55. 	LSL is to pay the Estate the sum of $216,000.00 within 30 days of the date of judgment as the Estate’s interest in the purchase price paid by HDD. LSL is to pay interest on that sum at the rate of 5% per annum from 28 August 2023 being the date the claim was filed against them. These proceedings may have been unnecessary had CV met his obligations and had LSL disclosed to HDD that there was an outstanding claim concerning the land. They are deemed to have had knowledge of the 1999 agreement and in fact had knowledge of it before selling the land to HDD.
56. 	The issue of costs has been complicated because of the failures on the part of CV and LSL. LSL is to pay the costs of HDD on an indemnity basis. LSL are to pay the costs of the Estate and the Attorney General on the standard basis. If the costs are not agreed they are to be taxed. MV is to bear her own costs.
Orders
1. 	There is judgment for the Claimant.
2. 	The First Defendant and the Second Defendant are to give vacant possession of the Fixed Term Estate PN 192-004-137 within 60 days of the delivery of this judgment.
3. 	Any erections, buildings or trees that are on the land 60 days after delivery of this judgment are the property of HDD as the owner of the Fixed Term Estate PN 192-004-137.
4. 	There is a permanent restraining order against the First Defendant and the Second Defendant their servants, families, relatives, agents or those claiming through them from entering on to the Fixed Term Estate PN 192-004-137 after 60 days from the delivery of this judgment.
5. 	The First and Second Defendants are to remove all human remains from any burial site on the Fixed Term Estate PN 192-004-137 where such burial occurred after 1999.
6. 	I declare that the First Defendant and the Second Defendant has no equitable, contractual or legal interest on the Fixed Term Estate PN 192-004-137 after 60 days from the delivery of this judgment.
7. 	I declare that the First Defendant has an equitable interest in the proceeds of sale of the Fixed Term Estate PN 192-004-137 being 27% of such proceeds.
8. 	I order the Third Defendant to pay the sum of $216,000.00 to the First Defendant within 30 days from the delivery of this judgment.
9. 	The Third Defendant is to pay to the First Defendant interest on the sum of $216,000.00 at the rate of 5% per annum from 23 August 2023.
10. 	On the Counterclaim the Counterclaimant is not entitled to and order declaring that the Counterclaimant has and overriding interest in nor an equitable interest in the Fixed Term Estate PN 192-004-137.
11. 	The Counterclaimant is not entitled to an order that the First and Second Defendants by Counterclaim are statute barred from recovering the Fixed Term Estate PN 192-004-137.
12. 	The Counterclaimant is not entitled to an order rectifying the Fixed Term Estate Register of PN 192-004-137 in favour of the Counter Claimant. 
13. 	The Third Defendant in the Claim is to pay the costs of the Claimant on an indemnity basis.
14. 	The Third Defendant in the Claim is to pay the costs of the First Defendant in the Claim and the Third Defendant by Counterclaim on the standard basis.
15. 	The Second Defendant in the Claim is to bear her own costs.
16. 	If the costs are not agreed they are to be taxed.
By the Court
Hon. Justice Howard Lawry
Puisne Judge