Schmidt v Registrar-General of Land

[2015] NZHC 2015

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-3360 [2015] NZHC 2015

IN THE MATTER	of the Land Transfer Act 1952
AND
IN THE MATTER	of a claim for compensation pursuant to s 172 of the Land Transfer Act 1952
BETWEEN	TAYLOR JADE SCHMIDT Plaintiff
AND	REGISTRAR-GENERAL OF LAND Defendant

Hearing:	28 July 2015
Counsel:	D Chesterman for Plaintiff J Burns for Defendant
Judgment:	26 August 2015

JUDGMENT OF BREWER J

This judgment was delivered by me on 26 August 2015 at 10:00 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:             Woodhouse Law (Auckland) for Plaintiff

Crown Law (Wellington) for Defendant

Counsel:               D Chesterman

SCHMIDT v REGISTRAR-GENERAL OF LAND [2015] NZHC 2015 [26 August 2015]

Introduction

[1]      The defendant applies for summary judgment against the plaintiff on the basis that none of the causes of action in the plaintiff’s statement of claim can succeed.

[2]      The  defendant  brings  his  application  in  reliance  on  his  interpretation  of relevant provisions of the Land Transfer Act 1952 (“the LTA”).   He submits that having regard to the evidence, there is no basis for departing from the pleadings in the statement of claim. Those pleadings can be taken as provable, but they cannot, in the defendant’s submission, found liability.

Background

[3]      In broad summary, the plaintiff is a trustee of four Trusts and sues in that capacity.    The  Trusts,  through  a  company  which  was  the  registered  proprietor thereof,  owned  two  properties  (the  Bell  Road  property  and  the  Kaiaua  Road property).  In 2005, the Trusts accepted advice from Mr Garrity, a solicitor, that the properties  should  be  transferred  to  a  trustee  company  with  an  independent shareholder  and  director.    Mr Garrity  incorporated  a  company,  Ebada  Property Investments Ltd (“Ebada”) for this purpose, with himself as the sole shareholder and director.  A Deed of Declaration of Trust was entered into, in or about December

2005, in which Ebada agreed to act as trustee for the Trusts and to acquire and hold property on their behalf.  The Bell Road and Kaiaua Road properties were, in 2006, transferred to Ebada which became the registered proprietor of the properties for the purposes of the LTA.

[4]      The plaintiff claims that Ebada (through Mr Garrity) acted fraudulently, with the result that innocent third parties obtained rights to both properties.1    They are now beyond the reach of the Trusts.   The principle of indefeasibility of title as

enacted in the LTA protects the titles of the innocent owners.

1      The Kaiaua Road property through the consequences of unauthorised borrowing on security of the property, which ultimately led to a mortgagee sale, and the Bell Road property by unauthorised sale.

[5]      The defendant is the Registrar-General of Land.   He is a statutory officer pursuant to the LTA.  For the purposes of this claim, he personifies the Crown.2

[6]      The plaintiff claims that the Trusts are entitled to be compensated by the Crown for the loss of the properties.   The plaintiff relies on s 172(b) of the LTA, which provides:

172      Compensation for mistake or misfeasance of Registrar

Any person—

…

(b)       who is deprived of any land, or of any estate or interest in land, through the bringing of the land under the Land Transfer Acts, or by the registration of any other person as proprietor of that land, or by any error, omission, or misdescription in any certificate of title, or in any entry or memorial in the register, or has sustained any loss or damage by the wrongful inclusion of land in any certificate as aforesaid, and who by this Act is barred from bringing an action for possession or other action for the recovery of that land, estate, or interest—

may bring an action against the Crown for recovery of damages. [My emphasis]

[7]      The  Crown  responds  that  s 172(b)  does  not  apply  to  this  case  because s 178(a) makes it impossible for the plaintiff to recover damages:

178      Crown not liable in certain cases

The Crown shall not under any circumstances be liable for compensation for any loss, damage, or deprivation occasioned by any of the following things, notwithstanding that effect may have been given to the same by entry on the register:

(a)       by the breach by a registered proprietor of any trust; …

[My emphasis]

[8]      The Crown submits that, although it is liable to pay compensation when a

fraudster “tricks” a registered proprietor out of the title to their property,3  it is not liable when title is transferred to a trustee who is acting honestly, but who later deals

2      I will use “the Crown” in place of “the defendant”.

3      See Burmeister v Registrar-General of Land [2014] NZHC 631, (2014) 15 NZCPR 91.

with the property fraudulently in such a way as to deprive the beneficiaries of their interest.

The plaintiff ’s case

[9]      Mr  Chesterman  submits  that  the  plaintiff,  although  not  the  registered proprietor when the titles were transferred to Ebada, nevertheless has standing to bring this claim.   Ms Schmidt is a trustee for the Trusts which owned the land in equity when it was transferred to Ebada, and she is a beneficiary of one or more of the Trusts.  Therefore, it is submitted, Ms Schmidt has “an interest” of which she has been deprived.  Under s 2 of the LTA, “interest” is defined broadly and is not limited to a registered interest.

[10]     In my view, as a matter of equity and having regard to the breadth of the term “interest”, Ms Schmidt has standing to bring this claim.  A trustee may sue on behalf of trusts, and it was the Trusts which had equitable ownership of the properties.

[11]    On the substantive issue between the parties in this summary judgment application, Mr Chesterman submits that s 178(a) does not provide a defence where the claim under s 172(b) relies on deprivation of an interest by fraud.   In such circumstances, he submits, the deprivation is not “occasioned” by a breach of trust but is “occasioned” by a fraud.

[12]     The plain text of s 178(a) suggests it does operate as a bar to compensation. If the allegations in the statement of claim are made out, Ebada, as the registered proprietor, dealt with the properties against the interests of the beneficiaries and for the  profit  of  its  director,  Mr Garrity.    Such  dealings  were  in  breach  of  trust. However, in Mr Chesterman’s submission, because they were fraudulent breaches of trust, s 178(a) does not apply.  Essentially, the argument rests on the purpose of the compensation provisions which, it is submitted, should be read broadly.

[13]     In one of the few New Zealand cases in this area (although it dealt with s 172(a)), Hammond J succinctly described the principles relating to compensation under the Torrens system of land transfer as follows:4

… the underpinnings of a Torrens system of title are:

·A prospective purchaser or mortgagee should not have to investigate the history of a registered proprietor’s title;

·Everything which can be registered and is registered should in the absence of fraud give an indefeasible title;

·The interest so created under the system is of such importance that it should be secure, in the sense that it is state guaranteed; monetary compensation for the loss of that interest should be paid.

In  the  original  work which  gave  rise to the Torrens  system (The  South Australian System of Conveyancing by Registration of Title (1859)) Robert Richard Torrens himself said at p 9 that one consequence of the Torrens system must be “the necessity of providing a fund from which rightful heirs and  others  may  be  compensated  for  the  value  of  land  which  they  are debarred from reclaiming against persons who have acquired title by registration…”.

[14]     Hammond J  compared  Torrens  legislation  in  New Zealand, Australia  and Canada and concluded that “New Zealand is one of the jurisdictions which allows wider recovery”.5    He also said, in the context of concluding that a claimant under s 172(a) should not be restricted to showing that they were deprived of an estate or interest in land, that “as a matter of legal policy, a wide scope for compensation is to be preferred in advancing the general philosophy of the statute”.6

[15]     In Marriott v Attorney-General, White J adopted those comments and found that “the purpose of s 172(a) is to provide wide scope for compensation as part of the Torrens system”.7

[16]     Mr Chesterman submits that there is no reason why the dicta relating to s 172(a) should not also relate to s 172(b).  Further, reading s 178(a) so that it does not include fraudulent breaches of trust would accord with the broad approach taken

by New Zealand Courts to s 172(b), in which “deprived” has been held to include a

4      Registrar-General of Land v Marshall [1995] 2 NZLR 189 (HC) at 194.

5      At 195.

6      At 195.

7      Marriott v Attorney-General [2011] 1 NZLR 354 (HC) at [72].

voluntary transfer induced by fraud, despite s 172(b) differing from its Australian counterparts by not expressly including a provision for fraud.8

[17]     Mr Chesterman submits that plaintiffs who are subjected to fraud are in a special class under the LTA – it is one of the very few exceptions to indefeasibility. Mr Chesterman asks, rhetorically, why should it be determinative that a plaintiff cannot show fraud at the moment of the transfer of title?  Someone who is deprived of their land by another person acting fraudulently is deprived of their land no matter when the fraud occurs. The Crown’s contention that the trustee must have fraudulent intent when acquiring title means that a plaintiff can recover compensation if he is “tricked” into giving title to his land to a trustee, but cannot recover if the trustee acts on a fraudulent intent conceived, say, a week after transfer.  Such a result would be arbitrary.

[18]     Mr  Chesterman  does  not  accept  the  Crown’s  submission  that  the  LTA provides beneficiaries with ways of protecting their interests under Trusts.  They can lodge a caveat, for example, under s 137 of the LTA.  Mr Chesterman submits that any protection afforded by this is highly imperfect.  For one thing, a discretionary beneficiary might not have a sufficient interest in the Trust property to support a

caveat.9

[19]     Mr Chesterman refers to New Zealand case law, but refers principally to Australian authority.  I make the following observations on the cases cited, none of which, on this point, interpret the LTA:

(a)      Mr Chesterman submits that Marriott determined that s 178(a) had only a limited scope.   The Judge did say: “it is apparent that the exclusion of Crown liability for the situation in paragraph (a) is designed to ensure that any loss, damage or deprivation occasioned by breach by a registered proprietor of any trust which has by mistake

been  entered  on  the  register  contrary  to  s 128  is  not  covered  by

8      Burmeister v Registrar-General of Land, above n 3.

9      See the discussion in Law Commission A New Land Transfer Act (NZLC R116, 2010) at [3.36], citing among others Philpott v NZI Bank Ltd (1990) ANZ ConvR 242 at 234.

s 172”.10    However, I do not think too much can be made of this for present purposes.  It is not clear why the exceptions in s 178 would be confined  to  situations  involving  mistakes  on  the  register.    In  any event, Marriott is readily distinguishable.   It involved the plaintiffs entering into a buy-back contract under which they transferred title to their property.   After the transfer, they lodged a caveat over the property.  The Registrar-General mistakenly removed the caveat and the property was sold, so that the plaintiffs were deprived of their interest in it.   The claim for compensation fell to be decided under s 172(a), which concerns administrative error.  That was the focus of White J’s judgment.

(b)Mr Chesterman relies on the Australian case of Parker v Registrar- General.11 It is helpful insofar as it contains comments that suggest that the Courts should take a broad approach to identifying the kinds of fraud which give rise to a claim to compensation.12 The case involved consideration of a differently worded Australian provision, s 126 of the Real Property Act 1900, which specifically provides that compensation is payable when a person is deprived of land or an estate or interest in land “in consequence of fraud”. Given the Court’s finding in Burmeister that s 172(b) covers such situations, Parker can arguably be applied in New Zealand.  However, Parker does not help the plaintiff answer the Crown’s contention that liability for compensation is excluded unless fraud can be shown at the time of transfer.  That is because Parker, like Burmeister, involved a fraudster convincing the claimants to sell him their house as part of a fraudulent scheme.  The property was transferred back to them after the transfer was voided for fraud but subject to a mortgage that they had to pay

off.  The Crown in Parker argued that the fraudster held the property

on constructive trust and therefore the facts came under s 133(a) of

10     Marriott v Attorney-General, above n 7, at [85].

11     Parker v Registrar-General [1977] 1 NSWLR 22 (CA).

12     For example, Glass JA at 25 says there are difficulties in attempting to draw lines bringing only some frauds within the scope of the compensation provision, so it “should be construed so as to embrace all frauds within the ordinary legal meaning of that term”.

the Australian Act, which excluded liability for breach of trust in similar terms to s 178(a).  In the Court of Appeal, Glass JA said:13

I consider that s 133(a) protects the fund from claims where the original default is that of the registered proprietor. It is not, in my view, concerned with loss or damage which is suffered because of a deprivation in consequence of a fraud practised upon the proprietor within the meaning of s 126.

That does not assist in answering the question of whether s 178(a) should bar actions in respect of initially honest trustees who develop fraudulent intent only after transfer.  As Mahoney JA said, in Parker the alleged “breach of trust … was merely one of the intermediate

results of the fraud”;14  the claimants’ “deprivation took place before

the company became a trustee and was not occasioned by it”.15

(c)       Mr Chesterman  also  relies  on  the  Australian  case  of  Koorootang

Nominees Pty Ltd v Australia & New Zealand Banking Group Ltd.16

This case involved a corporate trustee with three directors, one of whom fraudulently obtained a mortgage over land thus depriving the beneficiaries of their interest. In response to the Registrar of Titles’ submissions that s 109(2) of the Transfer of Land Act 1958 applied (under no circumstances will State compensation be available “for any loss or damage or deprivation occasioned by the breach of any trust”), the Supreme Court of Victoria accepted the claimant’s submissions that its loss arose not from a breach of trust by the corporate trustee but from the fraudulent action of a sole director in relation to the corporate trustee. This statement was in obiter, however, and Mr Burns for the Crown submits Koorootang can be distinguished because it involved the fraudulent actions of one of three directors of a corporate trustee.   In such circumstances the cause of the loss is clearly not a breach of a trust by the trustee but rather the fraudulent

action of one individual.  In essence, the submission seems to be that

13     Parker v Registrar-General, above n 11, at 27.

14     At 31.

15     At 32.

16     Koorootang Nominees Pty Ltd v Australia & New Zealand Banking Group Ltd [1998] 3 VR 16 (SC).

no distinction can be drawn in the present case between the fraudulent actions of Mr Garrity and the breach of trust by Ebada, so in this case it is a breach of trust that causes the loss.   I do not know that this distinction is as clear as Mr Burns makes it out to be.  I accept that Koorootang provides some support for the plaintiff’s case.   That support is limited, however, by the relevant statements being obiter and the case coming from another jurisdiction.

[20]     Nevertheless, there are other indications in the Australian case law that the plaintiff’s argument is to be preferred.  The lower court in Parker,17 whose decision was upheld, commented that the bar to Crown liability in cases involving breaches of trust was not applicable in circumstances where a fraudster had tricked registered proprietors  out  of the  title to  their property.    Lee J  said  the provision  “is  only concerned to express in relation to the matter of recovery from the assurance fund, the principle so clearly apparent in the Act, that it is not the function of the Registrar- General to concern himself with the rights and obligations of parties to trusts”.18   On that  view,  s 178(a) can  be read  as  applying only where  a beneficiary has  been deprived of an interest in land due to the actions of a trustee that were honestly, or perhaps negligently, in breach of the terms of the trust but which were not fraudulent. Whenever a trustee has acted with fraudulent intent to deprive a beneficiary of his interest in land, the Crown is potentially liable because that situation does not come within the terms of the section.  Such an interpretation would, I accept, better give effect to the purposes of the compensation scheme by narrowing the scope of the bar to compensation and allowing a remedy for an innocent victim who has suffered the

effects of indefeasibility.  It also accords with the LTA’s recognition that fraud poses

a special risk in the Torrens system.19

[21]     Glass JA on appeal also made a potentially relevant comment in discussing why the Registrar’s defence that the loss was caused by breach of trust could not succeed.  He said that in order to give effect to both the right of a person to sue the

Crown after being deprived of land by fraud, and the provision that says the Crown

17     Parker v Registrar-General [1976] 1 NSWLR 342 (SC).

18     At 362–363.

19     Land Transfer Act 1952, ss 63 and 183.

will not be liable for breach of trust, the trust exclusion should be read “as if the words  ‘occasioned  by’ meant  ‘solely occasioned  by’.”20      That  is  in  contrast  to Mr Burns’s submissions that “occasioned by” means that the particular cause need not be the exclusive cause of the consequence, it need only be a “substantial and operative one”.  However, the case law he relies on comes from a different context (mistake of law occasioning delay in bringing proceedings);21  Glass JA’s comments support Mr Chesterman’s submissions that s 178(a) should be construed narrowly.

Discussion

[22]     Against this background, I will construe the LTA.

[23]     I acknowledge that in adopting the Torrens system of land registration in New Zealand, Parliament knew that there would be innocent victims who would be deprived of interests in land and unable to recover them.   That is why the LTA provides for compensation through the provisions of s 172.   It can be argued that having voluntarily transferred their land to a trustee who later fraudulently breaches fiduciary duties and deprives the beneficiaries of their equitable interest in the land, those beneficiaries are innocent victims who, because of the indefeasibility of title created by the LTA, are barred from bringing an action for recovery.  Therefore, they should  be able to  seek  compensation  from  the  Crown.   As  Professor  Elizabeth

Toomey states:22

The principles of “indefeasibility” and “guarantee” are complementary: the former gives security against deprivation; the latter assumes the possibility of such deprivation and grants financial assistance if it occurs.

[24]     Nevertheless, as recognised by Hammond J:23

At the end of the day, the compensation provisions in any given jurisdiction turn on the precise formula settled by the legislature in that jurisdiction.

20     Parker v Registrar-General, above n 11, at 27.

21     Wilson & Horton Ltd v Lee (1997) 11 PRNZ 550 (CA) at 555, approving the findings of

Robertson J in Lee v Wilson & Horton Ltd (1996) 9 PRNZ 707 (HC) at 714.

22     Elizabeth Toomey “State Guarantee of Title – An Unguided Path?” (1995) 6 Canta LR 149 at

149.

23     Registrar-General of Land v Marshall, above n 4, at 195.

[25]     The starting point is that s 178(a) is to be interpreted from its text and in light of its purpose, taking into account any indications provided in the enactment.24

[26]     In my view, the provisions of the LTA, overall, indicate that Parliament did not intend for the Crown to be liable for fraud by a trustee whenever it occurs.  First, the  plain  terms  of  s 178  support  that  view.   The  use  of  the  words  “under  any circumstances” are broad and on their face encompass fraudulent circumstances.  If Parliament meant to limit the compensation exception to non-fraudulent breaches of trust, it could have said so.

[27]     Further, as the Crown submits, the LTA demonstrates an overall philosophy that Trusts are not recognised by the Torrens system.  Section 128 provides:

128      No entry of trusts to be made on register except as authorised

(1)       Except as provided in section 129 in relation to public reserves and other public lands, no entry shall be made in the register of any notice of trusts, and no such entry, if made, shall have any effect. For the purposes of this subsection a provision in any instrument to the effect that a person executing the instrument assumes liability only to the extent of any estate or interest of which he is a trustee shall not be deemed to be a notice of trust.

(2)       Trusts affecting land under this Act may be declared by any deed or instrument; and that deed or instrument, or a duplicate or attested copy thereof, may be deposited with the Registrar for safe custody and reference, but shall not be registered.

[28]     Sections 128 and 178(a) can be seen as complementary.  White J, in Marriott, said that “s 178(a) is consistent with the general principle that no notice of any trusts may appear on the register”.25   The fact that trusts are “off the register” supports the Crown’s argument that Parliament did not intend the Crown to be liable when property was settled on trust and the beneficiaries were then somehow deprived of their interest.  The Crown does not guarantee beneficiaries’ equitable interest in land as it is, effectively, blind to them.  The Crown cannot do anything to protect itself

against any breaches of trust, whether fraudulent or otherwise, as it knows nothing of the beneficial ownership. That has been said to be the justification for the five

exceptions set out at s 178.26

24     Interpretation Act 1999, s 5.

25     Marriott v Attorney-General, above n 6, at [79].

26     Struan Scott and others Adams’ Land Transfer (online looseleaf ed, LexisNexis) at [S178.3].

[29]     However, in my view, the determinative factor in interpreting ss 172 and 178 of the LTA is s 175, which provides relevantly:

175      Recovery of compensation paid and costs in case of fraud

(1)       Where any sum of money has been lawfully paid out of a Crown

Bank Account as compensation for any loss occasioned—

(a)      by fraud, or by fraudulent omission, misdescription, or misrepresentation of any kind on the part of any proprietor in bringing land under any of the Land Transfer Acts; or

(b)       by fraud on the part of any person causing or procuring himself to be registered as a proprietor under any of the Land Transfer Acts by virtue of any dealing with or transmission from a registered proprietor—

the amount of that compensation, together with all costs incurred in testing or defending any claim or action in relation thereto, shall be deemed a debt due to the Crown from the person legally responsible for that fraud, fraudulent omission, misdescription, or misrepresentation, as the case may be, and may be recovered from him, or from his personal representatives, by action at law, in the name of the Registrar-General, or, in case of bankruptcy, may be proved as a debt due from his estate.

[My emphasis]

[30]     Clearly, this section limits the circumstances in which the Crown may pursue a fraudulent person for money it has paid out in compensation.   Where there has been “fraud on the part of any person causing or procuring himself to be registered as a proprietor under any of the Land Transfer Acts by virtue of any dealing with or transmission from a registered proprietor”, the sum paid out in compensation will be deemed a debt due and the Crown can pursue the fraudster for it.  The section links the fraudster’s dishonest actions to the act of “causing or procuring himself” to be registered as a proprietor when dealing with the existing registered proprietor.  This would mean that the Crown can recover money paid as compensation in the Burmeister  and  Parker  situations,  but  not  where  a  trustee  became  registered proprietor without fraudulent intent but who later disposed of the land fraudulently. If s 178(a) were read in the way contended for by Mr Chesterman, it would allow recovery by claimants in cases where the Crown could not afterwards recover the debt from the fraudster.

The application of summary judgment principles

[31]     Notwithstanding my view of the proper interpretation of the LTA, I do not find  that  the  application  for  summary  judgment  should  succeed.     I  accept Mr Chesterman’s submission that summary judgment is inappropriate because the true nature of the plaintiff’s case is that Mr Garrity was fraudulent from the outset. In other words, he tricked the Trusts into making Ebada the registered proprietor of the properties in question with the fraudulent intent of using the properties to enrich himself. An amendment to the plaintiff’s pleadings to make this explicit is all that is required.

[32]     This is a defendant’s application for summary judgment.  The test for such an application is contained in r 12.2(2) of the High Court Rules:

The court may give judgment against a plaintiff if the defendant satisfies the court that none of the causes of action in the plaintiff’s statement of claim can succeed.

[33]     The  leading  case  on  defendants’  applications  for  summary  judgment  is Westpac Banking Corp v MM Kembla New Zealand Ltd.27   It held that the procedure set out at r 12.2(2) permits a defendant who has a clear and incontrovertible answer to  the  plaintiff  to  put  up  the  evidence  which  constitutes  the  answer  so  the proceedings can be summarily dismissed.  Summary judgment is a judgment on the dispute which operates as issue estoppel (by contrast, if a pleading is struck out as untenable as a matter of law, the plaintiff is not precluded from bringing a further properly constituted claim).28

[34]     The onus is on the defendant to prove on the balance of probabilities that the plaintiff cannot succeed in any of its claims.29   It is not enough that they are shown to have weaknesses.30    Summary judgment will be inappropriate where there are disputes as to the material facts or where the Court must ascertain material facts and it cannot confidently do so on the basis of affidavits.  It may also be inappropriate where ultimate determination turns on a judgment only able to be properly arrived at

after a full hearing of the evidence.31    The assessment made by the Court on interlocutory application is not one to be arrived at on a fine balance of the available evidence, such as is appropriate at trial.32

[35]     The Court has a “residual discretion” to refuse summary judgment to avoid oppression. Particularly relevant in this case, the Court of Appeal said that summary judgment will not be appropriate where it is possible for the plaintiff to amend its pleadings so as to remedy defects relied on by the defendant.33   This is a feature of strike-out applications and the Court noted that it was arguably even more important in the case of summary judgment as summary judgment results in issue estoppel.34

[36]     At hearing, Mr Chesterman submitted that the plaintiff believed Mr Garrity acted fraudulently from the outset in obtaining title to the properties as a trustee.  On the evidence this is clearly arguable – particularly, on the basis that title to the Kaiaua  property was  transferred  to  Ebada  on  5 January 2006  and  the  allegedly fraudulent variation of mortgage occurred only four months later, on 23 May 2006.

[37]     If Mr Chesterman had conceded that the plaintiff’s case was that Ebada had become trustee in honest circumstances and only later was a fraudulent scheme developed, the Crown would be on stronger ground in arguing that this is an appropriate case for summary judgment.

[38]     However, given that summary judgment in the Crown’s favour would act as an issue estoppel between the parties, I have no doubt that summary judgment is inappropriate in these proceedings.  The plaintiff should be allowed the opportunity to  amend  her  pleadings  to  reflect  the  allegations  that  Mr Garrity/Ebada  was fraudulent from the outset.   The plaintiff should also be given the opportunity to identify the evidence in support of the allegations.

Conclusion

[39]     The application for summary judgment is dismissed.  The plaintiff should re- plead her case to the effect that the transfer of land by the Trusts to Ebada was part of a fraudulent scheme to deprive the Trusts and their beneficiaries of their interests in the land.  Of course, such pleadings will have to have a proper evidential foundation. Otherwise, a further application for summary judgment can be brought.

[40]     I direct that the case be called in the Duty Judge list on the first available date after 8 September 2015 so that a timetable for the continuation of the proceeding can be set and so that any case management issues can be addressed.

[41]     If costs are sought by either party then memoranda must be filed no later than

1 September 2015, with replies by 15 September 2015.

Brewer J