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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO. 47 OF 2022
BETWEEN:
UNUNG-SIGITE LIMITED
Appellant
AND:
GILFORD LIMITED
Respondent
Waigani: Mogish, Makail & Purdon-Sully JJ
2024: 26th April, 7th June
SUPREME COURT – appeal against refusal to enforce two mediation agreements – whether the primary Judge erred in determining that the agreements did not co-exist and that the first agreement ceased to exist on making of the second agreement – whether the primary Judge erred in determining that the only parties to the mediated agreements were the appellant and the respondent - doctrine of privity of contract discussed – whether the primary Judge erred in finding that enforcement was not warranted for asserted breaches with respect to a non-party to a contract – no error established – appeal dismissed
Cases Cited:
Papua New Guinean Cases
MVIT -v- John Etape [1994] PNGLR 596
Hargy Oil Palm Limited v Ewasse Landowners Association Incorporation [2013] PGNC 188; N5441
Mase (trading as Issac Mase Trading) v Gab [2021] PGNC 67; N8714
Maoko v Ling [2008] PGNC 19; N3293
Toligai v Sir Julius Chan & Anor [2012] PGNC 133; N4842
Papua New Guinea Banking Corporation v Amevo and Bari Investments [1998] PNGLR 240
Lennie Aparima and Orita Aparima [1998] N1726
Christian Life Centre v Associated Mission Churches of PNG & Ors [2002] N2261
Clinton Capital Partners Pty Limited v Kumul Petroleum Holdngs Limited & Ors [2020] N8668
Overseas Cases
Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] UKHL 1; (1915) AC 847
Legislation
Supreme Court Act (Chapter No. 37), s 6
ADR Rules 2010, Rules 3(2), 12
National Court Rules, s 1
Constitution, s 184
National Court Act, ss.7B(6) and 7E
Counsel
S. Ketan, for the Appellant
W. Frizzell, for the Respondent
REASONS FOR JUDGEMENT
7th June 2024
BACKGROUND
THE MEDIATION AGREEMENTS
IN THE NATIONAL COURT WS NO 1562 of 2016 (CC 2)
AT WAIGANI
BETWEEN
UNUNG-SIGITE LTD
Plaintiff
AND
GILFORD LIMITED
Defendant
Dated the 27th of March 2018
Simon Keaton Bill Frizell
Lawyer for the Plaintiff Lawyer for the Defendant
Mediation agreement between USL and Gilford Ltd 3 March 2019 at Port Moresby
Dated 3 March 2019
Signed
Simon Ketan Bill Frizzell
[Underlining for discussion purposes]
20. The lawyers who endorsed the agreements are the lawyers for the appellant and respondent.
LEGISLATION
21. Before we turn to the reasons of the primary Judge we set out the relevant rules under which the appellant sought orders by way of enforcement to which the primary Judge had regard in the Judgment.
22. The applicable Rules governing mediation at the times the parties entered into the 2018 and 2019 agreements are contained in ADR Rules 2010 (ADR Rules). The ADR Rules are to be read in conjunction with the National Court Rules (s 1). The purpose of the ADR Rules, made pursuant to s 184 of the Constitution and ss.7B(6) and 7E of the National Court Act as amended, was, as stated in the preamble, inter alia to provide for the ‘...proper conduct of mediation....’.
23. On completion of a mediation the mediator was required by Rule 9(5) to file a certificate in the prescribed form within seven business days of completion of the mediation.
24. Rule 3(2) in Part 1 and headed Interpretation relevantly defines the following words:
.....
“mediation” means the process a mediator uses to help the parties in a dispute to identify their disputed issues, develop and evaluate options, and enable them to make their own decisions about how to move forward and or enhance their communication in a way that addresses their mutual needs with respect to their individual interests with future actions and outcomes and enable them to reach their own agreement or make a decision based on self-determination and included blended processes and customary forms of mediation;
......
“participants” includes mediators, parties and all other persons present and participating in the mediation;
“party or parties” means the parties to any proceedings in Court or a dispute;
.....
“proceedings” means proceedings out of which mediation or another form of ADR has been ordered.
25. The appellant sought orders pursuant to Rule 12 of the ADR Rules that the mediated agreements be enforced.
26. Rule 12(3) of the ADR Rules 2010 provides:
12. Enforcement.
(1) Where in the course of a mediation, the parties agree on a resolution of all or part of the proceedings, the agreement shall be written down and signed by or for each party.
(2) Any party to a mediation conducted by a mediator may apply to the Court for an order giving effect to an agreement reached during the mediation by:
(a) notice of motion if the proceedings are current; or
(b) Originating Summons if the proceedings have been concluded.
(3) Subject to sub rule (2) an agreement reached during the mediation shall have the same force and effect, and may be enforced in the same manner, as if it were an agreement reached otherwise than during a mediation.
LEGAL PRINCIPLES ON APPEAL
27. The appeal to this Court is by way of rehearing of the evidence given before the primary Judge, pursuant to s. 6 of the Supreme Court Act (Chapter No. 37).
28. Section 6 is in these terms:
6. Appeal to be by way of rehearing.
29. By virtue of this provision, this Court can exercise the powers, authority and the jurisdiction that would have been exercised by the primary Judge. To that end, this Court can revisit the evidence given before the primary Judge, make findings of facts which may or may not be the same as those found by the primary judge and correct errors of law (MVIT -v- John Etape [1994] PNGLR 596).
REASONS OF THE PRIMARY JUDGE
30. We now turn to what we view as the salient findings of the primary Judge relevant to this appeal.
31. At [7] of the Judgment the primary Judge identified the following two issues as preliminary issues which he proposed to address first and subject to his determination proceed to consider the merits of the claim and the enforcement proceedings:
32. The primary Judge firstly concluded that the 2018 agreement was superseded by the 2019 agreement. At [19] of the Judgement the primary Judge said:
So, we now come to this pressing question which is this. “Was the 2018 mediated agreement concluded or whether it still exists or co-exists with the 2019 agreement?” The straight and obvious answer is this. The 2018 mediated agreement was concluded. It ended or ceased to exist, by a separate agreement, that is, the 2019 agreement. Clause 1 of the 2019 agreement is express. It reads Mediation agreement of 27/3/18 is concluded.
33. The primary Judge then went on to consider whether the 2019 agreement was one that was within the terms and jurisdiction of the ADR Rules such that it could be enforced under Order 12(2)(b) of those Rules in circumstances where it was not in dispute that there were no pending Court proceedings at the time of the 2019 mediation (at [20]).
34. After considering the definition of the term, ‘mediation’ and the term “mediator’ under the ADR Rules he concluded at [24] – [25] as follows:
35. Having so concluded the primary Judge then went on to find that as a binding agreement, notwithstanding that it had not been Court ordered, it was open to the appellant to invoke the enforcement provisions under Rule 12(2)(b) and (3) of the ADR Rules. At [28]-[29] of the Judgement the primary Judge said:
36. Having concluded that the appellant had correctly invoked the relevant Rule the learned primary Judge then concluded at [30] of the judgment that the 2018 agreement had ceased to exist by the consent of the parties on 3 March 2019 and as a consequence that the enforcement of the agreement was baseless and without merit.
37. With respect to the 2019 agreement, being the only mediated agreement he found to exist between the appellant and the respondent, the appellant pleading breaches of that agreement, the primary Judge went on to make the following findings at [31]:
[Underlining ours]
38. At [34] the primary Judge referred to the final consideration of interest of justice or common sense as follows:
..... The Plaintiff’s area is yet to be developed by the defendant. Development or planting or oil palm trees has yet to be developed by the defendant. Development or planting of oil palm trees has not reached its area. The second factor is this. From the 4 companies or groups of landowners the project area, the plaintiff is the only person or group who has rescinded its agreements with the defendant. The other 3 companies or group of landowners continue to have their respective agreements intact with the defendant and its operation of the project. And their agreements contain express provisions The including provisions for review of their terms and conditions or benefits. They are the ones directly affected by the project area and the ones receiving the benefits, not the plaintiff. With these considerations on the one hand and given the uncertainty or vague clarities in the pleadings and also taking into account the findings of the Court on the other legal preliminary matters, interest of justice requires that this proceeding should end or be dismissed on the preliminary basis without proceedings further.
39. The primary Judge then dismissed the enforcement proceedings in its entirety summarising the basis for doing so at [35] – [36] of the Judgment in these terms:
SUBMISSIONS OF THE PARTIES
40. At the hearing of the appeal, the appellant was represented by Mr Ketan and the respondent by Mr Frizell. Both relied on filed written submissions and addressed the Court by way of oral submissions.
41. The submissions on behalf of the appellant can be summarised as follows:
42. The submissions on behalf of the respondent in summary are:
NOTICE OF APPEAL
43. In its Notice of Appeal filed 12 April 2022 the appellant sought the following orders:
44. The appellant relied upon numerous and detailed grounds of appeal which we outline in full:
3.1 His Honour erred in both law and Fact in summarily dismissing the proceedings in its entirety on the basis of his finding [at para 7 of written Decision (Decision)] that there were disputes as to the currency of the 2018 and 2019 Mediated Agreements and as to the Relief and consequential Relief sought by the Plaintiff which were preliminary in nature and he considered them first rather than considering the merits of the enforcement proceedings contrary to His Honour's finding [at para 9 of Decision] that the proceedings were enforcement proceedings pursuant to Rule 12(b) & (3) of the ADR Rules of the National Court Rules of Mediated Agreements entered into on 27th March, 2018 and 3rd March, 2019.
3.2 The Trial Judge erred in law in considering [at para 11 of Decision] as a preliminary consideration and applying the principles of Privy of Contract when the issue before him was the enforceability of Mediated Agreements and whether the Respondent (Defendant) had breached it.
3.3 The Trial Judge erred in law in considering and applying the principle of Privy of Contract and considered the evidence and submissions of the Respondent [Para 12 of Decision] when:
3.4 The Trial Judge erred in law and in fact in finding [at para 13 of Decision] that the -26 Appellant (Plaintiff) was acting on its own in bringing this action and the Parties to the agreements were the Appellant (Plaintiff) and the Respondent (Defendant) when the undisputed evidence was that all four land owner companies namely Pomata Investments Ltd (PIL), Ralopal Investments Ltd (RIL), Nakiura Investments Ltd (NIL) and, the Appellant were represented at the Mediation Conference and Ketan Lawyers represented all four landowner Companies in the Mediation conference in Kokopo and the Mediated Agreements applied to all of them.
3.5 The Trial judge erred in law and in fact in applying the principle of privy of Contract to the Mediated Agreements and finding [at para 14 of Decision] that the three other landowner companies (PIL, RIL & NIL) were not included in the Agreements and-were not bound by them, that the Agreements were express or precise between the parties and the Defendants, that the agreements, their terms and the Parties to them were deliberate and must speak for themselves when:
3.6 The Trial Judge erred in law and fact in finding, concluding and determining [at Para 15 of s Decision] that:
3.7 In applying the principle of privy of contract to the enforcement proceedings the trial Judge erred in law and fact when:
3.8 The trial Judge erred in law in finding (at Para 17 of Decision) that the Appellant (Plaintiff) had intended to exit the Project and sub-lease Agreement it had with the Respondent (Defendant) and the 2018 Mediated Agreement ensured of that and that the Appellant (Plaintiff) had no legally binding project agreement and sub-lease agreement with the Respondent (Defendant) when:
3.9 The Trial Judge erred in law and fact in finding [at para 19 & 20 of Decision] that the Mediated Agreement of 27th March, 2018 was discontinued on 28th March, 2018 and the Appellant (Plaintiff) had its project and sublease agreements with the Respondent (defendant) terminated when:
3.10 The Trial Judge erred in law and fact in finding [at para 30 of Decision] that the 2018 Mediated Agreement ceased to exist by the consent of the parties on 3rd March, 2019 and as such seeking its enforcement is baseless and without merit when:
3.11 The trial Judge erred in law in his finding and determination at Para 31 of Decision] that notwithstanding his finding that the 2019 Agreement is a Mediated Agreement and binding, the claim must fail because:
3.12 The trial Judge erred in law in finding or determining that the Mediated Agreements and their terms and conditions were not enforceable to Pomata, Ralopal and Nakiura when:
3.13 The Trial Judge erred in law and fact in finding [at Para 32 & 33 of Decision] that the Relief 2 Sought in the Proceedings is totally flawed as it incorrectly relies on Rule 14 of the ADR Rules when it sought Directions for enforcement of the Mediation Agreements out of the Mediation Enforcement Proceedings.
3.14 The Trial Judge erred in law and fact in proceeding to consider and find what he termed as interest of Justice or common sense consideration at [Para 34 of the Decision] and said:
3.15 The Trial Judge erred in law and in fact in his finding and determining [at Para 35 of the Decision] in saying:
and in summarily dismissing the proceedings on that basis when serious issues of breaches of the Mediated Agreement verging on illegal and unconscionable conduct on the part of the Respondent (Defendant) had been raised backed by credible evidence from witnesses representing all four landowner companies which issues required proper determination by the court on the merits.
3.16 The trial Judge erred in law in finding [at Para 36 of the Decision] when he said:
3.17 The Trial Judge erred in law in dismissing the Proceedings by taking into account matters in the Respondents cross-claim when the trial Judge [at Para 37 of the Decision] found that the cross claim had been abandoned
3.18 The Trial Judge erred in awarding costs of the Proceedings to the Respondent when the Proceedings were summarily dismissed by considering matters such as privy of contract which were irrelevant to the Real issues before the Court.
3.19 For all and any of the reasons stated in the foregoing grounds of Appeal, His Honour the learned trial Judge erred in law and in fact in summarily dismissing the proceedings.
[Highlighting and underlining as appears in original document]
CONSIDERATION
45. Enforcement is the legal process that ensures that terms agreed upon by parties to a contract are met and executed as intended. While the appellant raises a number of grounds of appeal, in our view, the critical issue for consideration and the starting point for our discussion is what agreements existed that created enforceable rights and obligations and what parties were bound by the terms of any agreement. Counsel for the appellant identified the contest at [39] and [41] of written submissions filed 12 April 2024 as follows:
46. It is not in issue that unless nullified or invalidated, all agreements reached at mediation have the same effect as legally binding and enforceable contracts (see Rule 12(3) of the ADR Rules; Hargy Oil Palm Limited v Ewasse Landowners Association Incorporation [2013] PFNC 188, N5441).
47. Nor is in dispute that at the time they were entered into both mediation agreements were binding and created contractually enforceable obligations for the parties to those agreements.
48. However, only a party to a contract can sue to enforce the rights and obligations created under the contract. A contract does not confer rights (or impose obligations) on a stranger (Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] UKHL 1; (1915) AC 847).
49. The appellant is accordingly only entitled to seek relief by way of Court order to enforce contractual rights or obligations created under a legally enforceable agreement against parties to the contract (Mase (trading as Issac Mase Trading) v Gab [2021] PGNC 67; N8714 at [20]; Maoko v Ling [2008] PGNC 19; N3293 at [6]-[10]; Toligai v Sir Julius Chan & Anor [2012] PGNC 133; N4842 at [5]-[6])).
50. This legal principle, known as the doctrine of privity of contract, is a common law principle that has been adopted as part of the underlying law of Papua New Guinea (Papua New Guinea Banking Corporation v Amevo and Bari Investments [1998] PNGLR 240; Lennie Aparima and Orita Aparima (1998) N1726; Christian Life Centre v Associated Mission Churches of PNG & Ors (2002) N2261).
51. While there are exceptions to the principle, none are pleaded or raised in submissions (Clinton Capital Partners Pty Limited v Kumul Petroleum Holdngs Limited & Ors (2020) N8668 at [15]).
52. The issue then is whether the appellant is able to show that the two mediated agreements were legally enforceable agreements, that the 3 landowner groups were a party to one or both agreements creating rights in their favour which the respondent breached. If it is unable to do that, then it cannot avail itself of orders by way of enforcement. In that regard, we do not accept that the respondent was raising a ‘strictly legalistic argument’ (AB 2 Page 776). It was asserting a fundamental principle of the common law. Whether the contractual obligations came about as a result of a mediation, negotiation, arbitration or Court order matters not and does not detract from the principle.
53. Further, and it is trite to observe, the Court cannot enforce an agreement that does not exist.
54. Before the learned primary Judge could consider the arguments advanced on behalf of the appellant in support of the orders it sought by way of enforcement against the respondent based on its asserted breach of obligations to the 3 landowner companies, it was necessary for the primary Judge to consider who were the parties to the agreements; and whether the 2018 agreement continued in force on the making of the 2019 agreement.
55. We find no error in the learned primary Judge identifying as a preliminary issue whether the two mediated agreements co-existed or whether the 2018 agreement was superseded by the 2019 agreement and, based on those findings, who were the parties to the agreement/s before he could consider whether the terms of such agreement or agreements had been breached and what relief by way of enforcement the appellant could claim as a consequence.
56. Nor are we able to discern any error in approach or in the reasoning of the learned primary Judge, by reference to the evidence before him or established legal principle in his concluding that the 3 landowner companies were not parties to either mediated agreement and as such did not acquire rights under the terms of those agreements that created obligations on either the appellant or the respondent.
57. The attendance of representatives of the 3 landowner companies at the mediations in 2018 and 2019 or reference to the landowner companies in the agreements does not permit a contrary conclusion. The various representatives may have been participants in the mediation process. That participation did not, however, make them parties to the agreements ultimately reached and signed off by the appellant and respondent. The 3 landowner companies did not sign either mediation agreement. The lawyers for the appellant and the respondent on behalf of their clients were the only parties who signed the 2018 and 2019 agreements.
58. In the case of the 2018 mediation the appellant and respondent attended the mediation pursuant to a Court order issued under the ADR Rules in proceedings in which they were the only parties. The Court Order giving effect to the 2018 agreement made no reference to anyone other than the parties to the proceedings entering into the agreement, such agreement having been endorsed by lawyers for the parties to WS 1562. On reaching the 2018 agreement the proceedings WS 1562 were then ended.
59. The fact that the terms of both mediated agreements made reference to the expectations of the appellant and respondent with respect to the 3 landowner companies did not make those companies a party to the agreements or create enforceable obligations on the appellant or respondent with respect to them.
60. The submissions on behalf of the appellant as to interpretation of the word ‘party’ vis a vis ‘all parties’ was not persuasive.
61. At [15] and [31] of the Judgment the primary Judge found that the 3 landowner companies were not privy to the two agreements and parties therein, the only parties privy to the agreements being the plaintiff and the defendant. We find no error in the conclusion of the primary Judge to that end and that only the appellant and respondent were bound by the terms of those agreements. The submissions advanced on behalf of the appellant to the contrary are, respectfully, flawed, being contrary to established legal principle and the evidence.
62. Relevantly the primary Judge noted at [13] of the Judgment that Counsel for the appellant Mr Ketan had confirmed to the Court that at all material times during the mediation he was acting for the appellant only. The landowner companies were not parties to the proceedings before the primary Judge. At the setting down for trial on 3 September 2021 and again at trial on 5 October 2021, Mr Ketan, Counsel for the appellant, announced his appearance on behalf of the appellant only (AB 2, pages 606, 607, 614).
63. We agree with the observation of the primary Judge at [14] of the Judgment that it is highly unlikely that the appellant and respondent would leave out the 3 landowner companies if they were meant to be bound by the terms of the agreements. If it was intended that they be a party they should have been identified as such and the agreements signed by a person with authority to do so on behalf of each entity as clear evidence signifying agreement to and an intention to be bound by the terms. Given the appellant’s legal representation at both mediations, it is difficult to accept that had that been the intention the appellant would not have been alert to the need for a well drafted contractual agreement to ensure clear expectations between the parties to the contract were recorded to avoid ambiguity, reduce misunderstandings and enhance communication, a circumstance heightened by the history of dispute that quickly emerged following the 2018 mediation. The need for that clarity is not one at odds with the process of mediation, rather a tenet of it.
64. We further find that it was open on the evidence for the primary Judge to find that the 2018 agreement ceased to exist by the consent of the appellant and respondent on 3 March 2019 when they entered into the second agreement and that the appellant was unable to enforce the terms of a contract that was no longer in existence. We are unable to discern any error in the primary Judge’s reasoning to that end. That the 2018 agreement ceased to exist and did not co-exist with the 2019 agreement is clear from Clause 1 of the 2019 agreement which is in these terms:
1. Mediated agreement of 27.3.18 is concluded.
65. There was no evidence before the primary Judge, nor persuasive submissions advanced before us, to suggest that those words should not be given their plain and ordinary meaning, namely, that the 2018 agreement had come to an end.
66. Indeed, in his opening address before the primary Judge when referring to second mediation agreement, Counsel for the appellant informed the primary Judge “... the previous mediation agreement was concluded and replaced by this agreement” (AB 2 page 622 line 30). He agreed, when asked by the primary Judge, that the second mediation agreement superseded the first mediation agreement (AB 2 Page 623 line 17).
67. It was accordingly open to the primary Judge to find as he did at [14] of the Judgment:
...that the agreements, their terms, and the parties to them were deliberate, and I also find that the 2 agreements are express and that their terms and conditions must speak for themselves.
68. The 2018 agreement having concluded, the parties then went on to record the terms of the 2019 agreement, its terms enforceable against the two parties to it, namely the appellant and respondent.
69. We accept the submissions by Counsel for the respondent before the primary Judge at trial and on appeal, that the appellant’s concerns on the evidence related to the operational areas of the project operated by the respondent on state leases owned by the 3 landowner companies sub-leased to the respondent and the subject of project agreements in which the appellant had no legal, equitable or other interest. The appellant is not a party to those project agreements. The agreement between the appellant and the respondent, in mirror terms to that of the 3 landowner companies, had been mutually rescinded in 2018. The appellant’s complaints then about performance obligations related to contracts and projects to which it had no interest at law and where it had otherwise failed to demonstrate on the evidence any material breach on the part of the respondent arising on the terms of the 2019 agreement to which he and the appellant only were parties.
70. Having then found that:
it was open to the primary Judge to dismiss the enforcement proceedings in their entirety, having concluded at [35] of the Judgment that the pleading sought was “substantially flawed, untenable and the relief sought unattainable.”
71. We now turn to the grounds of appeal.
Grounds 3.1 to 3.2 and 3.4 to 3.16
72. It is convenient to consider these grounds as grouped as they concern the enforceability of the 2018 and 2019 agreements. We repeat and rely upon our earlier discussion and conclusions in this regard. For the reasons given we are unable to find error in the primary Judge’s reasoning and conclusions, his careful approach to the issues clear, logical and considered and his conclusions open on the evidence and in accordance with legal principle.
73. We find no contradiction between the findings of the primary Judge at [29] and [31] of his Judgment where the primary Judge found that the appellant had correctly involved the provisions of Order 12 (2)(b) and (3) of the ADR Rules. Having found that the appellant had procedurally initiated the proceedings in a proper way under the Rules, the primary Judge then went on to find that the application for enforcement was without merit, the reasons for reaching that conclusion detailed at [31] of the Judgment. We find no error demonstrated.
74. We are similarly unable to discern error on the part of the trial Judge in his consideration at [34] of the Judgment of the interest of justice and common sense factors. We again set out that paragraph in full:
There is a final consideration which is interest of justice or commonsense consideration
which takes into account the following factors or facts. The plaintiff's area is yet to be developed by the defendant. Development or planting of oil palm trees has not reached its area. The second factor is this. From the 4 companies or groups of landowners of the project area, the plaintiff is the only person or group that has since rescinded its agreements with the defendant. The other 3 companies or group of landowners continue to have their respective agreements intact with the defendant and its operation of the project. And their agreements contain express provisions including provisions for review of their terms and conditions or benefits. They are the ones who are directly affected in the project area and are the ones who are receiving benefits, not the plaintiff. With these considerations on the one hand and given the uncertainty or vague clarities in the pleadings and also taking into account the findings of the Court on the other legal preliminary matters, interest of justice requires that this proceeding should end or be dismissed on the preliminary basis without proceeding further.
75. No submission was made on behalf of the appellant that the factors detailed at 3.14 (i) to (iii) of its Notice of Appeal were factually incorrect on the evidence. We are unable to conclude the primary Judge misapplied his discretion in considering those factors as relevant to the circumstances of the case such as to suggest identifiable error or a conclusion on those matters that was unreasonable or plainly unjust such that error could be inferred.
76. It is not necessary to otherwise address the submissions on behalf of the appellant with respect to the failure of the primary Judge to take into account the historical context or the submissions on estoppel, confidentiality, admissibility, unconscionability and scandalous material. They are, respectfully, not relevant to our consideration of the principal issue that required determination, properly identified by the primary Judge and that was whether the mediated agreements, the terms of which were not in dispute, were enforceable against the respondent by reason of the 3 landowner companies being asserted parties to them. As we observed earlier, Counsel for the appellant identified that contest at [39] and [41] of written submissions filed 12 April 2024 as he did before the primary Judge in his closing submissions (AB 2 pages 784-785) as follows:
The issues for trial your Honour are whether the 2018 mediated agreement is or has been – is enforceable is concluded or is enforceable. Whether the 2018 mediated agreement is binding on the parties. Whether the parties are in breach of the 2019 agreement.....
77. We have concluded that there is no merit in the submissions advanced in support of these grounds. As such the grounds fail.
Ground 3.17
78. At [37] of the Judgment the primary Judge said:
This proceeding will be dismissed. I note that the defendant has filed a cross-claim. The main relief sought is injunctive in nature, and damages. I note that these have not been addressed by the defendant in its written submission, so I presume that the claim has been abandoned. I therefore will make no further order nor addressed (sic) that herein.
79. This ground also fails.
80. The primary Judge raised a cross-claim by the respondent which was before him. There is nothing to suggest that in doing so it influenced his overall findings. He did not take it into account. He did not address it. He made no orders with respect to it. In the penultimate paragraph of his Judgment the primary Judge was doing nothing more than ensuring that he had addressed all applications before him. It was proper for him to do so. On the submission of the respondent, not challenged by Counsel for the appellant in oral submissions, the cross-claim was not pursued before or at the hearing.
Ground 3.18
81. With respect to this ground no error is demonstrated, costs following the event.
Ground 3.19
82. It is not necessary to address this ground. It is in the form of a concluding submission as opposed to identifying the whole or part of the judgment that is appealed from and addressing same.
CONCLUSION AND ORDERS
83. For the above reasons we are unable to conclude that there are clear grounds to disturb or overturn the decision of the primary Judge.
84. The appeal should be dismissed with costs to be paid by the appellant.
85. In the result the following orders are made:
________________________________________________________________
Ketan Lawyers: Lawyers for the Appellant
Warner Shand Lawyers: Lawyers for the Respondent
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