|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Court of Appeal of Vanuatu |
IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATUCIVIL JURISDICTION
CIVIL APPEAL CASE No.03 OF 1999
BETWEEN: JAMES OGILVIE NOALL
Appellantt>man">AND:
GEORGE ATKINSON
First RespondentAND:
GEOFFREY ROBERT GEE
Second RespondentCoram: Hon. Acting Chief Justice Vincent Lunabek;
Hon. Justice Bruce Robertson;
Hon. Justice von Doussa;
Hon. Justice Daniel FatiakiCounsel:St. John QC and Mr.d Mr. Gary Blake for the Appellant;
Mr. Hodgekiss and Mr. Juris Ozols for the First Respondent; Mr. John Malcolm for the Second Respondent Geoffrey Robert Geep>
JUDGMENT
Th an appeal from the oral oral decision of Justice Saksak delivered on 17th March 1999 refusing to dismiss the claim in the principal procee between the parties. The appeal is brought pursuant to leao leave granted by Mr. Justice Saksak on 26th March 1999.
The principal proceedings comprise the consolidation of Company case No. 22 of 1997 and Civil Case No. 175 of 1997.
The underlying issue raised by the proceedings is the beneficial ownership of shares in Atlas Investment Limited which are held by the Sabra Trust. Atlas Investment Limited owns shares in valuable land in Australia.
In their consolidated form the proceedings name George Atkinson as Plaintiff, Geoffrey Robert Gee as First Defendant and James Noall as Second Defendant.
Mr. Gee is a solicitor in the Republic of Vanuatu. He is the trustee of the Sabra Trust.
Mr. Atkinson was at one time the beneficiary of the Sabra Trust. Mr. Atkinson alleges that as part of a scheme to conceal assets under his control from his former wife in divorce proceedings in the Family Court in Australia, he asked Mr. Noall to hold the beneficial interest in the trust until the divorce proceedings were over. To this end Mr. Atkinson as "protector" of the trust nominated Mr. Noall to be the beneficiary of the trust. He says Mr. Noall agreed to hold the beneficial interest in trust for him.
As a scheme to conceal assets in the Family Court proceedings it apparently failed. The Family Court indicated an intention to treat the assets of Atlas Investment Limited as assets of Mr. Atkinson to be brought to account in the property settlement. Mr. Atkinson says that he then made full disclosure of his interest in Atlas Investment Limited, and his wife received a settlement that gave her a proportion of the value of the assets of the company.
On the other hand Mr. Noall has asserted a quite different explanation for the transaction that led to Mr. Atkinson transferring to him the beneficial interest in the Sabra Trust. Mr. Noall says that was done by Mr. Atkinson partly to satisfy an existing debt and partly in consideration of Mr. Noall paying US$350,000 to a gambling house in Vanuatu to discharge a pressing debt owed by Mr. Atkinson.
After the divorce settlement, Mr. Atkinson says that he approached Mr. Noall to have Mr. Noall transfer the beneficial ownership in the Sabra Trust back to him. He says that request brought forth a document dated the 31st August 1997, apparently signed by Mr. Noall. The document purported to assign Mr. Noall’s interest in the Sabra Trust to Mr. Atkinson.
In the consolidated proceedings Mr. Noall now asserts that the document dated 31st August 1997 is a forgery, that he has never assigned his interest in Sabra Trust to Mr. Atkinson, and that he remains the beneficiary entitled under the trust.
By Order dated 15th December 1998 Saksak J. directed that a preliminary issue be determined, namely whether the document dated the 31st August 1997 is a forgery. After hearing evidence on that topic on the 15th and 16th March 1999, the trial Judge held that the document is a forgery.
Counsel for Mr. Noall then sought to have the consolidated proceedings dismissed. Such an Order would have had the practical effect of confirming Mr. Noall as the beneficiary of the assets held by the Sabra Trust, including Atlas Investments Limited, and would have defeated the claim by Mr. Atkinson to that beneficial interest.
His Lordship refused to make that order and directed that the matter proceed to trial.
Counsel for Mr. Noall argued that the evidence of Mr. Atkinson showed that he was implementing a scheme that included Mr. Atkinson giving perjured evidence in the Family Court to pervert the course of justice. Counsel argued that that evidence showed that Mr. Atkinson was seeking to rely on a contract unenforceable because it was for an illegal purpose, and further was contrary to public policy. Mr. Noall also argued that Mr. Atkinson was in effect seeking specific performance of a contract, and the Court should not assist him because a party who seeks equity must come to equity with clean hands.
His Lordship said that he had no difficulty with the two propositions relied on by Mr. Noall, by which we take His Lordship to mean that he accepted the propositions as established legal principles. However His Lordship declined to apply those principles. It is contended before this Court that His Lordship erred in not applying the principles, and had he done so, he would have been duty bound to dismiss the claim of Mr. Atkinson.
We agree with His Lordship that the two principles cannot so simply be called in aid to defeat Mr. Atkinson’s claim.
Mr. Atkinson’s evidence is that Mr. Noall agreed to hold the property on trust. That in itself was not illegal. In so far as it was incidental to a scheme with an illegal purpose, the scheme was abandoned. What Mr. Atkinson now seeks is to have Mr. Noall recognize his equitable interest. It is at least arguable that Mr. Atkinson can do this notwithstanding that the trust was incidental to a scheme with an illegal purpose which was later abandoned. See Tinsley v. Miligan [1993] UKHL 3; (1994) 1 AC 340, Nelson v. Nelson (1995) 184 CLR 538, and especially Weston v. Beaufils (1994) 122 ALR 240.
It is also at least arguable that Mr. Atkinson has come to Court with clean hands by making a full disclosure about the transaction. Against this, if Mr. Atkinson’s story is found at trial to be correct, it is Mr. Noall who has come to Court with most unclean hands because it would follow that he has come to Court seeking to cheat Mr. Atkinson out of the value of the assets of the Sabra Trust by telling a complex, concoted story.
His Lordship said that he declined to make the Orders sought by Mr. Noall for two reasons which he stated as follows:
"(1)Unless and until the Plaintiff has been given the opportunity of being cross-examined on oath as to the contents of his affidavit referred to by Counsel for the Second Defendant, the application was pre-mature.
(2) Unless and until the Plaintiff has been given the opportunity of cross-examining the First Defendant, any dismissal at this stage would be prejudicial in my view."
We think His Lordship was entirely correct to take that view. The outcome of the case must depend on which of the two competing stories is found to be correct. To try the issues between the parties the evidence, and in particular the cross-examination of each of Mr. Atkinson and Mr. Noall, will be critical.
In our opinion the appeal should be dismissed.
Before leaving the matter we make two further comments.
First, a Court should proceed cautiously when asked to isolate and decide an issue in a case ahead of the balance of the trial. Often suggested short cuts to be achieved by proceeding in this way turn out only to complicate and prolong the case. The present appeal is proof of that fact. Where the issue is unlikely to conclude the case if it is decided in a way favourable to the party seeking to isolate the issue, or where the resolution of the issue may turn on the credit of witnesses who will give evidence on other issues if the case goes on, an order for the separate trial of an issue should be refused.
In the present case the issue about the document of 31st August 1997 identified by Mr. Noall in his Notice of Motion of 21st September 1998 failed on both counts. If Mr. Atkinson is correct, and Mr. Noall is engaged in presenting a sophisticated fraud, Mr. Noall may have returned the assignment form dated 31st August 1997 with a forged signature so as to lay a false trial and point the finger of suspicion at Mr. Atkinson. Moreover, as the trial of the issue showed, the credit of Mr. Noall was put in issue, and the Judge correctly recognized that it would be premature to rule on that question. Both the significance of the forged document, and credit, are matters for the full trial when the trial Judge will have to decide between the two competing stories.
The other issue concerns the undesirability of the Court entertaining appeals against interlocutory decisions or rulings given in the course of the trial process. Such appeals add greatly to the costs both of the litigants and of the public purse, and often serve only to delay the final resolution of the case. This is especially so when there is no Court of Appeal in permanent session, and the Court of Appeal sits only periodically, and then with a very busy calendar which may not immediately accommodate the appeal.
Leave to appeal against interlocutory decisions and rulings in the course of the trial process should be exceptional. The preferred course is to allow the trial to run to final judgment. Often when final judgment is delivered, rulings about which a party was dissatisfied at the time cease to have any continuing importance. If that is not the case, and an earlier ruling or decision continues to play a part in the final judgment, the dissatisfied party can then appeal on that and any other points of dissatisfaction. The Appeal Court can then determine all issues at the one time.
The appeal is dismissed with costs to be payable by the Appellant to the Respondent.
Published at Port Vila, this 28th day of September 1999.
BY THE COURT
Vincent LUNABEK J.
Bruce ROBERTSON J.
John von DOUSSA J.
Daniel FATIAKI J.
PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/vu/cases/VUCA/1999/7.html