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Gray v Drake [2022] WSCA 1 (2 May 2022)

IN THE COURT OF APPEAL OF SAMOA
Gray v Drake & Ors [2022] WSCA 1

CA13/20

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

CLARA AITELEA GRAY, as Administrator of the ESTATE OF KIRITA MARIA KOLOTITA PUNE, late of Auckland, New Zealand

Appellant

A N D:

RUBY DRAKE, Barrister and Solicitor of Apia, Samoa

First Respondent

A N D:

ATTORNEY GENERAL on behalf of the MINISTRY OF NATURAL RESOURCES AND ENVIRONMENT

Second Respondent

A N D:

SAMOA BREWERIES LIMITED, a duly registered company

Third Respondent

A N D:

SAMOA STATIONERY AND BOOKS LIMITED, a duly registered company

Fourth Respondent

Coram: Honourable Chief Justice Perese
Honourable Justice Blanchard
Honourable Justice Harrison

Counsel: O Woodroffe (via video-link) for the Appellant
K. Kruse for the First Respondent, leave to withdraw
S Ponifasio for the Second Respondent, leave to withdraw
C. Vaai for the Third Respondent
P. Lithgow (via video-link) & K. Koria for the Fourth Respondent

Hearing: 13 April 2022

Judgment: 2 May 2022

JUDGMENT OF THE COURT

Introduction and background

1. On 15 July 2014, with reasons given on 29 August 2016, the Supreme Court (Sapolu CJ) found that a deed of conveyance of freehold land in downtown Apia from a father, Vaeluaga Leilua, to one of his sons, Molio’o Vaeluaga, was obtained by the undue influence of the son. Undue influence is a species of actual fraud. There has been no appeal from this decision. The land was registered under the Land Registration Act 1992-1993 and the deed of conveyance was registered under that Act on 21 September 1995. Since the commencement of the Land Titles Registration Act 2008, which established for Samoa a Torrens system of title, the land has been included in the register kept under that Act, initially as qualified title land under s. 14 and, very likely, after 12 years, as an ordinary folio of the register (s.18). (As will be seen in [39]-[40] below, nothing in the case turns on the operation of s.18.)
2. On the same day in 1995 as the conveyance was registered the third respondent, Samoa Breweries Ltd (“Breweries”) registered a deed of mortgage of the land to secure advances made on a revolving credit account established with Breweries by a trading company, Vailima Distributors Ltd (“Vailima”), associated with Molio’o. It is accepted that when it registered the mortgage Breweries had no knowledge of any undue influence of Molio’o on his father and that, accordingly, because it was at that time a bona fide purchaser for value, Breweries’ security over the land cannot be challenged. There is an issue however concerning whether it can claim the same protection for advances made after 2002, i.e., whether they were secured under the mortgage.
3. Default was made by Vailima and eventually, in 2013, Breweries exercised its power of sale under the mortgage (also now registered under the 2008 Act) by selling the land to the fourth respondent, Samoa Stationery and Books Ltd (“Stationery”). A caveat lodged in 2002 by Drake & Co on behalf of two siblings of Molio’o prevented registration of a transfer to Stationary but, in circumstances described in our judgment of 16 December 2021 (Drake v Attorney General [2021] WSCA 14), the caveat was removed by the Registrar of Land and the transfer was registered on 24 February 2014, i.e., before the late Chief Justice’s finding of undue influence was announced. In our judgment we held that, because of procedural defects in relation to the giving of notice to the caveators, the removal of the caveat was unlawful. We ordered the Registrar to re-register it. The present position is that the land is registered in the name of Stationery but any dealing with it is prevented by the caveat.
4. In our earlier judgment we were not called upon to consider the effect of the caveat as against Breweries, that question being left for the present appeal which is against a decision of Nelson J. His decision was delivered on 14 August 2020 in separate proceedings brought on 14 July 2014 by one of the caveators against her former solicitor, Mrs. Drake (now named as first respondent to this appeal), the Attorney General on behalf of the Ministry of Natural Resources and Environment (the second respondent), Breweries and Stationery.
5. Mrs. Drake, who was exonerated by our earlier judgment of any negligence in respect of the removal of the caveat, and the Attorney General, who represents the Registrar of Land in the Ministry, have taken no part in the appeal. Their counsel were given leave to withdraw. That was because Nelson J’s decision of 14 August 2020 was concerned only with applications by Breweries and Stationery to strike out the proceedings against them.

The relevant facts

6. The issues on the present appeal concern events between 1995 and 24 February 2014, to which we now turn. It will be recalled that from 21 September 1995 Breweries held a registered mortgage over the subject land securing advances on current account from time to time made to Vailima.
7. Molio’o’s father, Vaeluaga Leilua, from whom Molio’o has now been found to have acquired the land by a type of fraud, died on 3 October 1997 at the age of 93. He died intestate.
8. In February 2002 Mrs. Kirita Pune, the only daughter of Vaeluaga Leilua, discovered that the land had been conveyed to Molio’o and mortgaged by him; see Chief Justice Sapolu’s judgment at [31]. On 1 May 2002 Drake & Co registered a caveat against the land as agent for a second son, Leilua Alosio Vaeluaga, and Kirita Pune:
   • “...claiming estate or interest as beneficiaries pursuant to the intentions of the late Vaeluaga Leilua commonly known among the family affecting the lands described in the Schedule hereto [which included the Apia property]”.

Leilua Alosio Vaeluaga had in fact died on 21 March 2002.

9. On 7 May 2002 Mrs. Drake wrote to the general manager of Breweries on instructions from Mrs. Pune and the estate of her late brother to advise Breweries “as Mortgagee” that a caveat had been placed against the subject land “so that you will be forewarned against any further advances on the security of the said land”.
10. At much the same time - the exact date is immaterial – Mrs. Pune and Leilua’s widow, Elsa Vaeluaga, the latter acting as administrator of Leilua’s estate, commenced a proceeding against Molio’o in which they alleged, as the Chief Justice eventually found, that the conveyance to him had been procured by undue influence on the part of Molio’o. (The Chief Justice made no orders pending hearing from counsel for “any third-party mortgagee”. We are unaware of what orders had been sought but assume the plaintiffs sought return of the land to Vaeluaga Leilua.)
11. The case against Molio’o was heard by the Chief Justice in February 2003. We have no information about the trial other than the summary of the evidence in the judgment delivered only after Stationery became the registered proprietor of the land.
12. Molio’o died in 2004 but his children continued trading through Vailima Distributors and Breweries continued to make advances intended to be secured under the mortgage. At some later time – again, the materials before us do not reveal when - the trading account fell into arrears, which led Breweries to exercise its power of sale. No details of the sale or the process leading up to it have been given to us, but it has not been suggested that the sale price was inadequate or that in any way the process was deficient if the security extended to the advances made after Molio’o’s death. The allegation made against Breweries is that by the time of the death of Molio’o it was aware of how he had acquired the property from his father and that, at the time of the mortgagee sale, Stationery was also aware of this through its agent, Mr. Ming Leung Wai, the husband of Stationery’s director and shareholder.
13. At the time of the sale to Stationery, Mr. Leung Wai held the office of Attorney General of Samoa. He is alleged to have improperly encouraged the Registrar of Land to remove the caveat. That allegation is based upon the fact that, as recorded in our judgment of 16 December 2021 at [7], the Registrar’s letter to the caveator notifying of an application to remove the caveat said that it was Mr. Leung Wai who had made the application. However, that statement was plainly an error. The letter seeking issue of a notice to the caveator had been written on behalf of Breweries. The Registrar deposed that the reference to Mr. Leung Wai was simply a mistake caused by a misreading of a chain of internal emails within the Ministry.

The statement of claim

14. We turn now to the present proceedings brought on 14 July 2014 by Mrs. Pune, in which Breweries and Stationery were joined in 2015.Their motion to strike out was heard by Nelson J and was determined by reference to a second amended statement of claim dated 16 September 2019. Nelson J declined leave for the filing of yet another amended statement of claim dated 31 July 2020, which was the fourth attempt to plead the case. But, as an indulgence to counsel, Mrs. Woodroffe, and bearing in mind the principle that a claim should not be struck out if it is truly capable of amendment disclosing a viable cause of action, we have considered what is now alleged against Breweries and Stationery, noting that in the motion seeking leave for the proposed amendments it was said that they “aimed at getting the [sic] finality”.
15. Mrs. Pune has unfortunately died. Her administrator, Mrs. Gray, has continued the proceedings and is the present appellant.
16. The pleaded claim can be summarised in this way. There are two causes of action against Breweries and three against Stationery. The first two are an action for recovery of land and an action based on unjust enrichment. The third, against Stationery alone, alleges that it holds the land in a constructive trust “for the Plaintiff”. (The plaintiff is actually the estate of Mrs. Pune but the orders sought under this head of the claim include the return of the land to Vaeluaga Leilua’s estate.)
17. Against Breweries, it has been pleaded that it had written notice of the interest of Mrs. Pune in the land from May 2002 by virtue of:
    • (a) the written notice given by Mrs. Drake in the letter of 7 May 2002;
    • (b) the caveat; and
    • (c) “the Court proceedings in 2002”.

Despite this notice, it is alleged, Breweries continued to advance credit “to Molio’o” secured against the land, and despite his death in 2004 it again continued to advance credit “to persons who were not a party to any Credit Facility Agreement or the Mortgage Security Deed .... and after he died advanced money to persons with no legal authority to secure loans against [the land]” for nine years from 2004.

18. It was further pleaded that Breweries illegally sold the land to Stationery and was not “a bona fide seller” so that the protection of a bona fide purchaser for value did not apply. As a result of Breweries’ actions, Mrs. Pune had lost her beneficial interest in the land and, in particular, in family graves of her late parents which had been removed and relocated “in an undignified manner” to a public cemetery, and family homes on the land had been demolished. Mrs. Pune claimed, inter alia, massive exemplary and general damages, totalling over ST$10 million, and an order transferring the land back to the estate of Vaeluaga Leilua.
19. The claim for unjust enrichment essentially duplicated these allegations and claims.
20. Against Stationery, it was also pleaded that it was on notice of the interest of
    Mrs. Pune in the land by virtue of the caveat, which a reasonable purchaser would have seen on checking the certificate of title prior to making a purchase of land. Stationery’s agent, Mr. Leung Wai, had emailed Breweries requesting it to have the caveat removed and had aided and abetted in the removal of the caveat when he was Attorney General. Stationery had thus through its agent taken active steps to defeat the caveatable equitable interest of Mrs. Pune in the land at a time when it had notice of her beneficial interest and when it was not a bona fide purchaser. Claims for the return of the land and the same level of damages were also made. The claim for unjust enrichment and a claim that Stationery held the land as a constructive trustee repeated the same allegations, but also alleged that Stationery was additionally on notice of Mrs. Pune’s interest in the land because of “the proceedings filed in the Supreme Court in 2002 against Molio’o”.

The Supreme Court judgment

21. Nelson J's judgment is brief and to the point. He said that the allegation of lack of bona fides, seemingly an allegation of fraud or deceitful misconduct, was very inadequately particularised. The well-established law was that such an allegation must be succinctly pleaded and specifically proved, citing Lord Millett in Three Rivers District Council v Bank of England (No.3) [2001] UKHL 16; [2001] 2 All ER 513 at 578.
22. Speaking of the claim against Stationery, the Judge said the link between the alleged conduct and the alleged damage had also not been sufficiently pleaded. The “blanket unspecific allegation of a lack of bona fides” was far too vague and did not meet the Three Rivers criterion. The plaintiff could not rely on the actions of Mr. Leung Wai as amounting to fraud or some form of lack of bona fides without pleading specifically how such would arise and give rise to a cause of action against Stationery. There was no doubt, the Judge said, that the equitable defence of bona fide purchaser for value might be available for Stationery, as recognized in the Samoan cases the Judge cited. It was also available to a bona fide mortgagee without notice: Paina v Public Trustee [2001] WSSC 29 and Stowers v Stowers [2010] WSSC 36. There was a central issue of whether or not adequate notice had been given to the defendants. The plaintiff had said there was notice to all the world of their claimed interest from the lodgment of the caveat. But the difficulty was that the plaintiff was seeking to use this point as a sword as opposed to a shield. Such a ground as a basis for equitable relief had not been recognized in previous authorities. In the view of the Judge, the pleaded claims could not succeed, and he struck them out.
23. From that judgment Mrs. Pune now appeals through her administrator, Mrs. Gray.

The quantum of the claims

24. Like the Judge, we deprecate the claiming of extraordinarily large sums by Mrs. Pune and now Mrs. Gray. The claims total more than ST$10 million against each defendant. That level of damages cannot possibly be justified even if the appellant were to be successful in establishing liability. Counsel has a professional duty to the Court not to lend herself to the bringing of quantum claims of such unsustainable magnitude, seemingly, as Nelson J said, plucked out of the air.

Strike out principles

25. In McNeely v Lemoasina Corporation Ltd [2019] WSCA 12 at [18] this Court has recently provided a summary of the principles applicable to strikeout applications. We need not repeat them all. Relevant to the present appeal are the following points:
    • (i) The pleading should be struck out if the Court is satisfied that even on the most favorable interpretation of the facts pleaded or available, the plaintiff could not succeed in law.
    • (ii) The Court will not attempt to resolve genuinely disputed issues of fact or consider evidence inconsistent with the pleading.
    • (iii) A claim should be struck out only if it is so clearly untenable that it could not possibly succeed.
    • (iv) The jurisdiction should not be exercised if the pleading could be sustained by appropriate amendment or if there remains the realistic possibility that at trial evidence could emerge to rectify a seeming gap or flaw in the plaintiff’s case.

Submissions

26. Mrs. Woodroffe submitted that the dispute in this case could be said to involve a developing area of law in Samoa, namely the applicability of the nemo dat quod non habet rule [that no-one can give what he does not have] to freehold land in Samoa. As she put it, the purchase of freehold land from someone who has no ownership right to it denies the purchaser any ownership title. Molio’o had acquired the land by fraud and undue influence. Hence, she said, the legal title remained with the original owner, Mrs. Pune’s father. Mrs. Woodroffe went further: she submitted that the rule applied in Samoa even if the purchaser did not know that the seller had no right to claim ownership. Neither of the respondents was a bona fide purchaser. There might be more evidence in support of Mrs. Pune’s claim against Breweries once it filed a statement of defence and discovery had been sought, though Mrs. Woodroffe did not enlighten us as to what this might be. In any event, counsel said, Breweries was on notice of Mrs. Pune’s beneficial interest in May 2002 when the caveat was lodged on her behalf; yet it continued to make advances purportedly secured against the land both “to Molio’o “until his death and then to “persons of no contractual standing”. Removal of the caveat, instigated by Breweries, did not remove its knowledge.
27. Counsel said that Stationery, through its agent, was also on such notice because of the caveat which it must have known about because it would have checked the title prior to making its purchase. It also must have known, through Mr. Leung Wai, that the land had been the subject of a Supreme Court hearing, with judgment awaited. The court case was “common knowledge” in Apia. The agent’s knowledge of the situation was evidenced by his approach to officials dealing with the caveat asking them to remove it. Stationary had taken active steps to defeat Mrs. Pune’s equitable interest.
28. This Court was urged to recognize that both respondents were on notice of Mrs. Pune’s beneficial interest. The Court should take note of circumstances in Samoa, including the fact that freehold land comprised less than 20% of the land in the country, and should “enlarge or change the law” to recognize the claim. It was submitted that applying the Torrens system and indefeasibility of title strictly in Samoa was inappropriate to local circumstances. The rights of legal owners of freehold land were “critical”. Mrs. Pune had under s.9 of the Constitution a right to a fair trial. An injustice had been done because of the lengthy delay in delivery of Sapolu CJ’s decision and the removal of the caveat. It was in the public interest that the registration of Stationary on the title to the land should be thoroughly investigated at trial.
29. Mrs. Woodroffe spoke also of the hurt and humiliation her client has suffered because of her grandparents’ graves on the land being dug up and their bodies removed to a public grave after Stationery’s purchase. Her client sought return of the land so that this could be remedied.
30. Extensive written submissions were filed by both respondents, who did not find it necessary to expand upon them in oral argument. We need not lengthen this judgment by describing those helpful submissions.

Samoan title registration systems and their application to this case

31. This case is complicated by the fact that Samoa changed its title registration system between the time when Vaeluaga Leilua conveyed the land to Molio’o and the mortgage to Breweries was registered and the time when Breweries transferred it to Stationery in exercise of its power of sale. Both the old and new systems must therefore be considered, including certain transitional provisions.
32. In 1995 when the registration of the deed of conveyance and the deed of mortgage occurred, the Samoan freehold land registration system was a system of conveying title to such land by the registration of deeds. It was provided, in s.16 of the 1992-93 Act, that no instrument was to affect the legal title unless and until registered under the Act. In that respect it resembled a Torrens system. But registration, although converting an equitable title to a legal title, did not confer indefeasibility. If a deed was void, for example, if it was a forgery, registration did not give it any greater effect. It remained a nullity incapable of passing any title. However, if a deed was not void but merely voidable at the instance of an owner who had executed it under duress or because of a misrepresentation (or, as in this case, because of undue influence), it was, upon registration, effective to pass legal title to a purchaser or mortgagee, subject to divestment and reinstatement of the title of that owner if and when the transaction was avoided. In the meantime, the party to whom the legal title had passed was capable of passing that title on to a third party who, if a bona fide purchaser for value, would receive it free of the original owner’s claim in equity for restoration of the legal title.
33. In the present case, therefore, the deed of conveyance from father to son, though voidable because of Molio’o’s undue influence on his elderly father, was nevertheless when registered effective to pass the legal title to the land to Molio’o. As between father and son, the father or someone like Mrs. Pune claiming through him, could take steps to have the conveyance declared void. But any such action was subject to any rights in the meantime acquired by any purchaser for value acquiring their title from Molio’o without notice of Molio’o’s dishonesty and the right of his father to have the transaction set aside. (In fact, Sapolu CJ’s decision was not made until after the mortgagee sale and, as he made no orders, the conveyance to Molio’o was never set aside.)
34. The term “purchaser for value” includes a mortgagee who gives value to the mortgagor owner: see the definition of “purchaser” in s.2 of the Property Law Act 1952, a New Zealand statute still in force in Samoa. That definition is consistent with the position at common law. Therefore, since Breweries is conceded to have acted without knowledge of the undue influence of Molio’o on his father when taking and registering its mortgage and gave value in the form of advances to Vailima, it obtained good title for its security. (The deed of mortgage, once registered, conveyed the legal title to the mortgagee subject to the usual right of redemption and reconveyance.)
35. If, however, Breweries subsequently became aware of circumstances indicating that Molio’o’s title might have been dishonestly obtained and was thereby put on an inquiry and, as a result, discovered that his title was subject to a prior equitable interest in favour of his father - the right to have the land restored to him - Breweries could no longer use the mortgage to secure fresh advances against the land. It could not then expect to be able to secure future advances in priority to the rights of an owner known to have been deprived of his title unlawfully. A central issue in this appeal is accordingly whether the appellant can make an arguable case that Breweries did have such knowledge in or after 2002 and, if it had made a proper inquiry, would have discovered the father's prior equitable right.
36. It is necessary to say something about the concept of notice of an equitable claim and the burden of proof thereof. A person is deemed to have notice of a prior right of this nature when he would have learned of it had he made the requisite inquiries. Under a deeds system he will have constructive notice of all that a reasonably prudent person would have discovered: Royal Bank of Scotland plc v Etridge (No.2) [2001] UKHL 44, [2002] 2 AC 773 at [41] (Lord Nicholls). The burden of proof differs depending upon the nature of the prior right. Where it is an existing equitable interest, like an equitable charge, the person seeking to overcome the right must show that he is a purchaser without notice; in contrast, where a vendor wishes to set aside a transaction on the ground that his consent to it was procured by undue influence or misrepresentation, the purchaser can rely upon the vendor’s apparent consent and it is for the vendor to show that the purchaser had actual or constructive knowledge of the undue influence or misrepresentation: Etridge at [145] (Lord Scott). Importantly, however, under a Torrens system of title, which Samoa adopted in 2008, constructive knowledge does not suffice; it must be shown that the purchaser had actual knowledge of the equitable right or has failed to make reasonable inquiries for fear of learning the truth about it (willful blindness).
37. As just indicated, the system of title registration in Samoa was radically changed by the Land Titles Registration Act 2008. Under this Act an instrument such as a transfer or mortgage is not effective to pass legal title or render land liable at law as security until registered (s.31). Before registration an instrument can create no more than an equitable interest. It is a system of legal title created by registration, as Barwick CJ observed in Breskvar v Wall (1971) 126 CLR 376 at 385. The important difference from the 1992-93 Act is that s.32 provides that a registered estate or interest in land recorded in a folio is indefeasible (held “absolutely free from all other estates and interests” that are not recorded in the folio), subject to limited exceptions which we describe in [40] below.
38. Nevertheless, because of some transitional provisions, the new Act did not immediately change the position as between Molio’o’s estate and Breweries, whatever that had become prior to 2008, because s.14 provided that all land registered under the 1992-93 Act was deemed to be land comprised in qualified folios of the register under the 2008 Act but held subject to any existing interests which might exist, “whether recorded in the folio or not”.
39. Section 17 provided that a person claiming an interest existing at the time of the creation of a qualified folio could protect it by lodgment of a caveat under s.51. Section 18 prescribed that after 12 years, a period that has now elapsed, land in a qualified folio was to be held free of any interests that affected it when brought under the Act and not shown on the register. The folio then became an ordinary folio. But subs (2) provided that the foregoing was not to apply to a qualified folio on which a caveat had been entered under s.51. The section is silent about whether a caveat lodged under the 1992-93 Act is to be treated as if lodged under s. 51 so that the qualified status of the folio is preserved. We consider the better view is that in the absence of a new caveat, s.18 removes the qualification of the folio. But we do not need finally to decide this question because the possibility of enforcement of an in personam claim against the registered proprietor, shortly to be described, means that the status of the folio can make no difference in this case.
40. Leaving aside the effect of ss14-19, once a legal title has been obtained by entry in the register under the 2008 Act, s.32 renders it not liable to be set aside or adversely affected by an unregistered interest except where that registration is tainted by fraud (dishonesty) of the person registering or the agent of that person: Assets Co Ltd v Mere Roihi [1905] UKLawRpAC 11; [1905] AC 176 (PC). There are other limited exceptions in s.32 but none is relevant in the present case. There is also, however, a very significant exception created by the courts in all Australasian Torrens title jurisdictions, namely, for an in personam claim against the registered proprietor founded in law or in equity: Frazer v Walker [1967] NZLR 1069 (PC) at 1078-9. The courts have recognized such claims because, as Brennan J said in Bahr v Nicolay (No.2) [1988] HCA 16; (1988) 164 CLR 604 at 653, the indefeasibility provisions are “designed to protect a transferee from defects in the title of the transferor, not to free him from interests with which he has burdened his own title”. They are claims of a personal character for what the registered proprietor has personally done, or done through an agent, either before or after the registration.
41. Stationery’s title as transferee of the land was obtained by registration under the 2008 Act and will prevail unless it has been guilty of knowingly participating in a dishonest exercise of the power of sale under Breweries’ mortgage. Even if Breweries’ interest under its mortgage was affected by the appellant’s claim, Stationery will not be affected unless it had knowledge of the fact that Breweries was not lawfully able to exercise that power of sale.

Decision

42. In enacting the 2008 Act whose principal provisions, including s.32, are closely modelled on the scheme of Torrens title statutes in Australasian jurisdictions, the Samoan legislature plainly intended that the Act should operate in the same general manner as those other statutes, informed by the extensive case law that has interpreted and applied them. Mrs Woodroffe’s submission that the Court should modify the application of the Act for cultural reasons must be rejected in the absence of anything in the Act indicating an intention to depart from familiar Torrens principles. Indeed, we found counsel's submissions generally to be heavy on abstract appeals to justice of this kind, urging this Court to create new forms of liability regardless of the Samoan statutory context, while being light on any constructive analysis of the factual issues at the heart of the case.
43. It was unfortunate that counsel appeared unable to assist the Court with an analysis of what exactly it is alleged that Breweries and Stationery knew about the proceedings against Molio’o and why it is said to be arguable that they were fixed with notice of the voidability of his title and the unlawfulness of the exercise of the power of sale under the mortgage. To those key issues we now turn.
44. The appellant contends that there is an arguable case that Breweries had notice of her beneficial interest (as the daughter of the intestate Vaeluaga Leilua) from three sources: (a) the caveat registration on 1 May 2002; (b) the letter to it from Drake and Co; and (c) the Court proceedings in 2003.
45. The caveat and the letter can be taken together as the purpose of the letter was obviously to alert Breweries to the presence of the caveat against its mortgagor’s title. But the caveat was, to say the least, very obscurely worded. The claimed estate or interest of the caveators, Mrs. Pune and her recently deceased brother, is stated to be “as beneficiaries pursuant to the intentions of the late Vaeluaga Leilua commonly known among the family” affecting the land. It forbids registration of any instrument affecting that estate or interest. But the nature of that beneficial interest and its connection to the registered proprietor is not described. The father's “intentions” are not stated and there is nothing suggesting that he had been the victim of undue influence as a result of which his son's ownership of the land was voidable for that or any other reason. There is no mention, for instance, of any claim to a constructive trust. Mrs. Woodroffe said, without pointing to any evidence, that the intentions concerned which child should get the land from their father. But how was Breweries to know this?
46. It is the obligation of a caveator, including one who originally claimed under the 1992-93 Act, to state in the caveat with reasonable precision what kind of estate or interest is being claimed and how the claim is linked with the registered proprietor, so that the caveatee and anyone coming to deal with the land can understand the nature of the beneficial interest being asserted. This the caveat completely failed to do. Consequently, it provided, in itself, no reason for the mortgagee to heed the warning in the letter not to make further advances. The letter did not explain the claim made in the caveat so, apart from drawing attention to the caveat, it took matters no further.
47. Before considering the effect of any notice of the Court proceedings, it is convenient at this point to respond to the submission that after Molio’o’s death Breweries had no right to advance credit to (unnamed) persons not a party to any credit agreement or to the mortgage or to persons with no legal authority to secure loans against the land (“persons of no contractual standing”, as
    Mrs. Woodroffe put it in her oral submissions). Vailima was actually a party to the deed of mortgage, which was expressly stated to be a security for advances made to Vailima, named therein as a customer of Breweries and a signatory of the deed as “the debtor”. No allegation is made that Vailima was by reason of the death of Molio’o rendered unable to continue to conduct its business and to borrow from Breweries in the course of doing so, and there is nothing put forward by the appellant to suggest that Breweries made any advances other than to Vailima. Even assuming that had happened, and advances had been made that were not able to be secured by the mortgage, it would reveal nothing about the question of whether Breweries had notice of Molio’o’s undue influence on his father.
48. We can now address the third of the matters that in combination are said to have given such notice. It is alleged that Breweries had notice “by the Court proceedings in 2002”. No specifics are given to support this: the statement of claim does not say how Breweries would have known of them or what it must have known. All Mrs. Woodroffe could say when this was put to her was that the proceedings were “common knowledge” in Apia. She did not point to anything to support that statement, and even if it could be substantiated, such knowledge could range from knowledge by Breweries merely that there was in process a court case involving members of its mortgagor’s family to knowledge of every detail of the evidence in the case. There has been no pleading of what Breweries is alleged to have known about the proceedings.
49. Moreover, even if the pleaded allegation could be taken to encompass full knowledge of the evidence (which we do not for a moment accept), even somebody with that amount of knowledge would not know more than that Mrs. Pune’s allegations against Molio’o were contested and had been the subject of a trial at which Molio’o had given his own version of events supported by witnesses called on his behalf. The Judge had not made any decision and did not make a finding of undue influence until after registration of the transfer to Stationery pursuant to the exercise of the power of sale under the mortgage. He was apparently still weighing up the evidence. The allegations against Molio’o thus remained to be found proven. More is required to establish notice on the part of a purchaser than the act of registering an instrument with knowledge of a competing but unproven claim.
50. So, even if this Court were to take the view of the pleadings most favourable to the appellant, Breweries could not be said to have been, during the relevant period, on notice of the undue influence. It has not been suggested for the appellant that there was any further line of inquiry that Breweries could have pursued in these circumstances. Therefore, the case pleaded against it is not tenable, as Nelson J found.
51. The pleaded case against Stationery is even weaker. If it is not shown how Breweries could have had knowledge of any matter preventing it from exercising its power of sale, it is even less likely that Stationery could have known something more than Breweries which would have made its conduct dishonest when it purchased from Breweries. It is not pleaded that there was anything else that was irregular about the sale other than the irregularity in the removal of the caveat. But that is not a matter going to the validity of the sale. There was no dishonesty relating to it on the part of Breweries or Stationery when they had not otherwise been put on notice of the undue influence, as we have found. Assuming Mr. Leung Wai did, as pleaded, play a role in the process leading to the removal of the caveat, of which there is no probative evidence, that would provide no proof of knowledge on his part and therefore on the part of Stationery of the undue influence or of any other reason why Breweries should not have been conducting the mortgagee sale. It would merely show that he wanted Stationery to be able to complete its purchase and so participated in the process (now found to be unlawful on a technical ground only) to obtain removal of the caveat. That was ultimately the act of the Registrar.
52. We have therefore concluded that the pleaded case against both Breweries and Stationery was untenable even on the most favourable view of the asserted facts. The appellant failed to suggest any way in which the matter could be re-pleaded with further particulars to remedy this situation. In any event, we would not have allowed a further re-pleading when the appellant had herself indicated that the latest (fourth) version of her statement of claim was intended to achieve finality. The appellant has had a more than sufficient opportunity to plead her case in the eight years or so which have elapsed since the proceedings were commenced but remains unable to demonstrate an arguable cause of action. Our decision may produce a sense of injustice in the appellant, especially in light of the fact that a prompt delivery of judgment by the late Chief Justice might have enabled her to retrieve the land from Molio’o, but the respondents are not responsible for the excessive delay by the
    Chief Justice, and are now entitled to have the unsustainable proceedings against them terminated without further delay.
53. It follows that the removal of the caveat by the Registrar, though unlawful, did not prejudice the appellant because, as her case against the respondents was unsustainable, they would at the time of the registration of the transfer to Stationery have succeeded in an application to remove it under s.54 of the 2008 Act.

Orders

54. 1. The appeal is dismissed with costs of $5000 payable by the appellant to each of the third and fourth respondents;
    2. The Registrar of Land is directed to remove caveat 837X from the title to the subject land.
       

HONOURABLE CHIEF JUSTICE PERESE
HONOURABLE JUSTICE BLANCHARD
HONOURABLE JUSTICE HARRISON