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Poilapa v Mele Trustees Ltd [2023] VUSC 291; Civil Case 2053 of 2019 (29 September 2023)

IN THE SUPREME COURT OF Civil Case No’s 19/2053 &

THE REPUBLIC OF VANUATU 22/1131 (Consolidated) SC/CIVL

(Civil Jurisdiction)

BETWEEN: Simeon Poilapa representing Family Mariki Langa Ni-Vatelapa

Claimant

AND: Mele Trustees Limited

Defendant

Date of Hearing: 22 September 2023

Before: Justice V.M. Trief

In Attendance: Claimant – Mr P. Fiuka

Defendant – Ms V. Muluane

Date of Decision: 29 September 2023

DECISION AS TO DEFENDANT’S APPLICATION TO STRIKE OUT THE CLAIMS

1. Introduction
   

1. By the Claim in each proceeding CC 19/2053 and CC 22/1131, the Claimant Simeon Poilapa representing Family Mariki Langa Ni-Vatelapa is seeking payment of trust monies (including lease premiums, execution fees, consent fees and land rents) in respect of a number of leases that the Claimant Family is a registered lessor of.
   
2. This is the decision as to the Defendant Mele Trustees Limited’s (‘MTL’) application to strike out the Claims.
   

2. The Application and Submissions
   

3. On 28 July 2023, MTL filed Application to Strike out the Claimant’s Claims in both CC 19/2053 and CC 22/1131 on the grounds that they are statute-barred under para. 3(1)(d) and s. 6 of the Limitation Act [CAP. 212] (the ‘Act’) and seeking indemnity costs or alternatively, personally against the Claimant’s lawyer (the ‘Application’).
   
4. Other grounds advanced included the following:
   
   1. The Court has power to terminate proceedings at an early stage where either party has no prospect of success to avoid the cost of putting the other party to the expense and delay of a full trial or the preliminary steps involved in preparing for a trial;
   2. The Claims are statute-barred and therefore vexatious and an abuse of the Court’s process;
   100. The claims for rents and sums allegedly due for the period 2003-2013 have passed the limitation period of 6 years. The Claimant should have filed the Claims in February 2012, soon after they were registered as lessors (on 28 February 2012); and
   4. Both Claims were filed after the expiry of 6 years therefore should be struck out with indemnity costs pursuant to rule 15.5 of the Civil Procedure Rules (‘CPR’) or alternatively, Claimant’s lawyer personally pay the costs pursuant to rule 15.26 of the CPR.
5. The Claimant filed submissions in response on 15 September 2023. Mr Fiuka submitted that the limitation period should start to run from 6 July 2016 when the custom ownership dispute was finally determined in the Court of Appeal Civil Appeal Case No. 486 of 2016 and the monies held on trust and owed to the Claimant became due. Further, that MTL is a trustee, not a lessee paying rents to the Claimant therefore has a legal duty to account for all monies held on trust for the trust’s beneficiaries as well as to remit the trust monies to the beneficiaries. Its claim that it can keep the trust monies after 6 years is nonsensical and a clear breach of its duties and has no basis in law.
   
6. Mr Fiuka also submitted that in both Defences, MTL admitted that it is a trustee for the disputing custom owners. Accordingly, s. 8 of the Act applies to MTL as a trustee, which section provides that there is no applicable limitation period. Further, that in 2015 and 2018 MTL made part payment totalling VT1,050,000 and therefore if there is a limitation period, it should run from 2018.
   
7. Ms Muluane relied on the ‘Defendant’s Response to the Submission of the Claimant’ filed on 21 September 2023 in which she submitted that it is misleading that the Claimant was finally determined on 6 July 2016 as the Court of Appeal does not have jurisdiction to determine custom ownership. In addition, she submitted that the Claimant’s right to claim unpaid rent starts from the moment when they were declared custom owners or when they became registered lessors (on 28 February 2012). She submitted that although MTL was a trustee, and the Claimant has the right to recover rent from MTL, the Claimant’s right to commence action to recover rent or a trust property is barred by s. 6 of the Act after 6 years therefore the Claims should be struck out with indemnity costs against the Claimant or if the Application is not granted, costs be in the cause. Ms Muluane also submitted that there was a 6-year limitation period pursuant to subs. 8(2) of the Act.
   

100. The Law
     

8. Section 2 of the Act provides as follows:
   
   2. The provisions of this Part shall have effect subject to the provisions of Part 3 which provide for the extension of the periods of limitation in case of disability, acknowledgement, part payment, fraud or mistake, and in the case of certain actions in respect of personal injuries.
      
9. Paragraph 3(1)(d) of the Act provides as follows:
   
   3. (1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say -

...

(d) actions to recover any sum recoverable by virtue of any Act, other than a penalty or forfeiture or sum by way of penalty or forfeiture:

Provided that -

(i) in case of actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under any Act or independently of any contact or such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, this subsection shall have effect as if for the reference to six years there were substituted a reference to three years; and
(ii) nothing in this subsection shall be taken to refer to any action to which section 5 applies.

10. Section 6 of the Act provides as follows:
    
    6. No action shall be brought, or distress made, to recover arrears of rent, or damages in respect thereof, after the expiration of six years from the date on which the arrears became due.
       
11. Section 8 of the Act provides as follows:
    
    8. (1) No period of limitation prescribed by the provisions of this Act shall apply to an action by a beneficiary under a trust, being an action –
       
       • (a) in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or
       • (b) to recover from the trustee, trust property or the proceeds thereof in the possession of the trustee, or previously received by the trustee and converted to his use.

(2) Subject as aforesaid and to the provisions of any other Act, an action by a beneficiary to recover trust property or in respect of any breach of trust, not being an action for which a period of limitation is prescribed by any other provision of this Act, shall not be brought after the expiration of six years from the date on which the right of action accrued.

Provided that the right of action shall not be deemed to have accrued to any beneficiary entitled to a future interest in the trust property, until the interest fell into possession.

(3) No beneficiary as against whom there would be a good defence under the provisions of this Act shall derive any greater or other benefit from a judgment or order obtained by any other beneficiary than he could have obtained if he had brought the action and this Act had been pleaded in defence.

(my emphasis)

12. Subsection 11(3) of the Act provides as follows:
    
    11. ...

(3) Where any right of action has accrued to recover any debt or other liquidated pecuniary claim, or any claim to the personal estate of a deceased person or to any share interest therein, and the person liable or accountable therefore acknowledges the claim or makes any payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgement or the last payment:

Provided that a payment of a part of the rent or interest due at any time shall not extend the period for claiming the remainder then due, but any payment of interest shall be treated as a payment in respect of the principal debt.

(my emphasis)

4. Consideration
   

13. In its Defence in CC 19/2053 filed on 2 September 2020, MTL stated that it is a company limited by shares appointed by the Minister of Lands under s. 8 of the Land Reform Act [CAP. 123] to represent the disputing custom owners: para. 2.
    
14. The same is pleaded in para. 2 of the Defence in CC 22/1131 filed on 28 July 2023.
    
15. Accordingly, it is MTL’s own case that it is a trustee for disputing custom owners including the Claimant.
    
16. It is common ground that the Claimant’s custom ownership was put beyond doubt by the Court of Appeal striking out Civil Appeal Case No. 486 of 2016 on 6 July 2016 for non-compliance with the Court’s Orders and for want of prosecution.
    
17. In the meantime, the Claimant Family had been registered as the lessor of the subject leases on 28 February 2012. Its Claims in the present matters are for payment of monies held in trust by MTL in relation to leases and registered leasehold dealings therefore I consider that the date on which it became entitled to such payments was 28 February 2012 when it was registered as lessor of the subject leases. I reject the submissions that the Claimant Family became entitled to such payments on the date of the strike-out of the appeal in the Court of Appeal.
    
18. I now turn to the provisions of the Act.
    
19. The primary ground of the Application is that the Claims are statute-barred under para. 3(1)(d) and s. 6 of the Act as they were not filed within 6 years from 28 February 2012 being the date when they were registered as lessor in place of MTL.
    
20. Paragraph 3(1)(d) of the Act applies to actions to recover any sum recoverable by virtue of an Act. Both Claims in the present proceedings involve claims by the Claimant Family as beneficiary against MTL as trustee to pay over monies held in trust for them. Neither is an action to recover a sum recoverable by virtue of an Act. Paragraph 3(1)(d) of the Act has no application. This ground of the Application lacks legal merit.
    
21. Section 6 of the Act applies to actions to recover arrears of rent or damages in respect thereof. The Claimant Family was not a landlord that is now suing MTL to pay it arrears of rent or damages in respect thereof. It is a beneficiary now suing MTL for release to it of trust monies that MTL held in trust for it. Section 6 has no application. I reject Ms Muluane’s submissions otherwise. This ground is devoid of legal merit.
    
22. I agree with Mr Fiuka’s submission that MTL as a trustee has a legal duty to account for all monies held in trust for the trust’s beneficiaries and to remit the trust monies to the beneficiaries.
    
23. I also agree with Mr Fiuka that s. 8 of the Act applies. Paragraph 8(1)(b) of the Act provides that “no period of limitation prescribed by the provisions of this Act” shall apply to an action by a beneficiary under a trust to recover from the trustee trust property or the proceeds thereof in the trustee’s possession. Subsection 8(2) of the Act then provides that subject to the foregoing, a beneficiary is barred from bringing action to recover trust property or in respect of any breach of trust after 6 years, “from the date on which the right of action accrued.”
    
24. Arguably, the Claimant’s cause of action accrued on 28 February 2012 therefore it is barred from bringing action after 28 February 2018.
    
25. However, subsection 11(3) of the Act provides that where any right of action has accrued to recover a liquidated pecuniary claim (as the Claimant has), and the person liable or accountable makes any payment in respect thereof, “the right shall be deemed to have accrued on and not before the date of... the last payment.”
    
26. It is pleaded in the Claim in CC 19/2053 that MTL has paid VT200,000 to the Claimant Family, in November 2018: para. 14. That is a part payment.
    
27. It is pleaded in the Defence that MTL has already paid VT1,050,000 to the Claimant Family: para. 16.
    
28. MTL has also filed a Set-Off Claim (following the Defence) in which it is alleged that any claim of the Claimant should be reduced by the set-off claim which includes the amount of VT1,050,000 already paid plus other monies already paid.
    
29. In the Defence filed in CC 22/1131, MTL denied that it received payments for premiums, consent fees and land rents for all leases within Malawora land declaread in favour of the Claimant and repeated its Defence in CC 19/2053 and further added that the Claimant is double counting the rents, arrears and consent fees (if any) as it had already claimed those in CC 19/2053.
    
30. I consider that that by its own Defences and Set-Off Claim, MTL has admitted that it made part payments to the Claimant. Accordingly, the Claimant’s right of action is deemed to have accrued on the date of the last payment, that is, in November 2018 pursuant to subs. 11(3) of the Act.
    
31. In the circumstances, the Claimant’s Claims in the present proceedings CC 19/2053 and CC 22/1131 are not statute-barred.
    

5. Result and Decision
   

32. For the reasons given, the Defendant’s Application to Strike out the Claimant’s Claims is declined and dismissed.
    
33. Costs reserved.
    

DATED at Port Vila this 29^th day of September 2023

BY THE COURT

.................................................

Justice Viran Molisa Trief