IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
CIVIL JURISDICTION
APPEAL CASE NO. 8 OF 1997
                      
IN THE MATTER OF:
a Mortgage dated the 28th                      day of September 1993
AND:
IN THE MATTER OF:
The Land Leases Act 1983 (Cap. 163)
BETWEEN:
GIANCARLO CASTELLI                      of Australia and
MITA FINANCIAL SERVICES LIMITED
an incorporated company in Vanuatu
Appellants
AND:
SOUTH PACIFIC PROPERTIES & INVESTMENTS LIMITED
an incorporated company in the Republic of Vanuatu
Respondent
Coram: Acting Chief Justice Vincent Lunabek
Justice Bruce Robertson
Justice John von Doussa
Justice Reggett Marum
Counsel: Mr John Malcolm for the Appellants
No appearance of the respondent
Mr Tony Vita, a party interested, appeared in person
Date of Hearing: 22 October 1998
Date of Decision: 22 October 1998
                      
SUMMARY RECORD OF ORAL REASONS FOR JUDGMENT
At the conclusion of argument on 22nd                      October 1996 oral reasons for decision were delivered on behalf of the Court by von Doussa 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 No. 140 of 1994 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.
This Court considers that 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