APPEAL CASE NO. 8 OF 1997
IN THE MATTER r>
The Land Leaseseases Act 1983 (Cap. 163)
SER">SUMMARY RECORD OF ORAL REASONS FOR JUDGMENT
At the conclusion of argument on 22nd Oct1996 oral reasons for decision
were delivered on behalf of the Court by von Doussa J. a J. Orders which appear at the end
of
this record were then made. The parties were informed that the oral reasons for decision
would be transcribed and made
available. Unfortunately, through a malfunction of the
recording equipment in Court, the relevant tape is indecipherable. This
record summarises
the oral reasons that were delivered.
The notice of appeal as amended at the hearing, sought orders setting aside paragraphs
1 to 5 of the following order made by
Justice Saksak on 28 November 1997 in Civil Action
No. 136 of 1996:
"(1) That the Originating Summons of the Plaintiff be adjourned sine die.
(2) That the Plaintiff be given leave to amend his Originating Summons to include Tony
Vita as a party.
(3) That the Plaintiff be given leave to file a further affidavit showing copies of
Leasehold Titles referred to in the Mortgage.
(4) With respect to the Notice of Motion that:-
(a) The Order of this Honourable Court dated 7th August 1997 be and is
hereby set aside.
(b) Civil Case No. 140 of 1994 be restored and relisted by the Registrar for proper
hearing.
(c) The Parties be at liberty to file and serve further documents in respect of Civil
Case No. 140 of 1994 by no later
than 31st December 1997.
(d) Civil Case No. 140 of 1994 be heard separately and be heard in advance of Civil
Case No. 136 of 1996.
(e) Civil Case No. 136 of 1996 re re-listed after completion of Civil Case No. 140 of
1994.
(5) That costs be reserved.
(6) The Applicant, Mr Tony Vita pays the costs of the hearing of his Motion against Mr
Hakwa to Messrs Ozols and Associates
to be taxed, if not agreed."
In Civil Action No. 136 of 1996 the Appellants as mortgagees sought orders for sale of
certain land. That land had at one time
been held by Mr Vita as lessee. When the
application for an order for sale came on for hearing before Saksak J, Mr Vita appeared
and raised allegations which asserted that he still had a beneficial interest in the land,
challenged the circumstances
in which the Respondent, South Pacific Properties &
Investments Limited ("South Pacific") came to be registered
as leaseholder of
the land, challenged South Pacific’s entitlement to be registered as lessee, and
challenged the
validity of the mortgage.
Mr Vita had been Applicant in Civil Action No. 140 of 1994 in which South Pacific and
Mele Trustees Limited were the Respondents.
In those proceedings Mr Vita made similar
allegations about the circumstances in which South Pacific came to be registered as
leaseholder. In those proceedings Mr Vita sought orders that would have the effect of
returning the subject land to him.
Those proceedings came on for trial before the former
Chief Justice on 14th March 1997 when Mr Vita’s case was opened and he
commenced giving evidence. The trial resumed on 15th March 1997. Part way
through the cross-examination of Mr Vita, the proceedings were adjourned to enable the
parties to
discuss settlement. In the result a settlement was reached between counsel, and
the trial was adjourned sine die. The terms
of settlement were later recorded in a deed
dated 15th March 1996 between Tony Vita, South Pacific, Steven Pellegrino and
Giancarlo Castelli.
On 7th August 1997 Action No. 140 of 1994 was again listed. Counsel appeared
for both Mr Vita and the Respondents to that action. By
consent the matter was struck out
with no order as to costs. It is clear that the parties at that time anticipated that
Action No. 136 of 1996 would proceed independently. That fact was recorded in paragraph 3
of the order made on 7th August 1997.
Although the terms of settlement of the issues in Civil Case No. 140 of 1994 were
recorded in the deed dated 15th March 1997, the deed was signed only by Messrs
Vita, Pellegrino and Castelli. It was not formally executed on behalf of South
Pacific.
However, that fact does not render the settlement unenforceable. The settlement was
reached on 15th March 1996 between counsel representing the parties, and was
made with their authority. More importantly, the terms of settlement
recorded in the deed
have been propounded in the meantime by Mr Vita. The settlement was advanced as the reason
for the
order when the proceedings were formally struck out on 7th August 1997.
Perhaps more importantly, the terms of the settlement as recorded in the deed were
advanced on his behalf
in April 1997 when he applied to a bank for finance to enable him
to make certain payments contemplated by the settlement which
would have led to the
transfer to him of the beneficial ownership as leaseholder in the land.
The orders under appeal were made by Saksak J as his Lordship appears to have been
under the impression that by restoring Civil
Case No. 140 of 1994, the issues raised by Mr
Vita could be re-agitated and determined by the Court. In our opinion his Lordship
was
mistaken in that belief. An order restoring Civil Case No. 140 of 1994 does not, and
cannot, set aside the terms of
the settlement agreement reached between the parties on 15th
March 1996. If Action No. 140 of 1994 were to be re-listed, that would immediately expose
the settlement as a bar to further
proceedings within the action.
This Court considers that the situation has been reached where the issues raised by
Mr Vita in Action N0 of 1994 h994 have been
determined by the settlement. For this
reason, we consider the order to reinstate Civil Case No. 140 of 1994 lacked utility,
and
must be set aside.
is Court considers that Actt Action No. 136 of 1996 should be re-listed before Saksak J.
The Court is able to arrange
for this to occur on 10th December 1998. On that
occasion his Lordship will be required to consider whether an order for sale should be
made in light
of the settlement reached between the parties. As we have observed, Mr Vita
is bound by the terms of the settlement even though
the deed which recorded that
settlement has not been executed by South Pacific.
This Court would have power to proceed forthwith to hear and determine the outstanding
application in Action No. 136 of 1996
for an order for sale. However, we think that the
justice of the case will be best served by returning the matter to Saksak
J with liberty
in the meantime to the parties to place before the Court any further information upon
which they wish to
rely at the hearing.
Unfortunately Mr Vita appeared today unrepresented by a legal practitioner. The counsel
who appeared for him at the trial in
March 1997 and during the period up to 7th
August 1997 when Action No. 140 of 1994 was formally struck out no longer acts for Mr
Vita. Notes on the Court file record
that in November 1997 Saksak J strongly advised Mr
Vita to obtain representation by a legal practitioner in Vanuatu to act for
him in
relation to these proceedings. That has not occurred. Mr Timakata appeared before this
Court, and with leave spoke
as Mr Vita’s friend. However he had been consulted only
shortly beforehand and was not fully aware of the facts. The desirability
of Mr Vita now
obtaining legal representation in Vanuatu cannot be over-stressed. The effect of the
orders now made will
give Mr Vita a further seven weeks to arrange legal representation,
and to take stock of his present situation.
The Court of Appeal considers that paragraphs 1 to 5 of the order made by Saksak J on
28th November 1997 should be set aside. Paragraph no. 3 gave leave to the
Plaintiff to amend the originating summons to add Mr Vita.
We do not think that is
necessary. Mr Vita has appeared before the Court as a party interested, and he is entitled
to be
heard in that capacity. Any order made on the originating summons, now that he is
aware of the proceedings, will bind him. It
is not necessary that the costs of joining him
be incurred.
The orders which this Court proposes will not disturb paragraph no. 6 entered by Saksak
J which ordered Mr Vita to pay the costs
of Mr Hakwa to Messrs Ozols and Associates.
The Court of Appeal makes the following orders:
1. Appeal allowed.
2. Set aside the paragraphs numbered 1 to 5 of the order entered by Justice Saksak on
28th November 1997.
3. Direct that Civil Case No. 136 of 1996 be re-listed before Saksak J on 10th
December 1998.
4. Liberty to all parties to file further affidavit evidence on which they intend to
rely by Friday 20th November 1998.
5. Liberty to all parties to file affidavits in reply by 4th December 1998.
6. Order that Mr Tony Vita pay the Appellants’ costs of this appeal.
22 October 1998
Published on behalf of the Court
J W von Doussa J
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