Schueler v Tenene [2001] VUCA 10; Civil Appeal Case 15 of 2001 (26 October 2001)

IN THE COURT OF APPEAL

OF THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

Appeal Case No. 15 of 200an>

BETWEEN:

MR. RICHARD SCHUELER
Appellant

AND:

class="MsoBoMsoBodyText" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> MR. WAYA TENENE
Respondent

Coram: Hon. Justice John von Doussa

Hon. Justice Daniel Fatiaki

Hon. Justice Roger J. Coventry

Hearing Date: 26th October 20span>

Counsels: Mr. John Malcolm for the Appellant

Mr. Hilary Toa for the Respondent

CONSENT ORDERS

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class="MsoBoMsoBodyText2" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1"> By consent the Court makes the following declarations, orders and dire directions:-

1. &bsp; ; p Appeal allowellowed;

2. &&nbsp Tpan>The Orde Order made on 9^th April 2001 is set aside and the matter is remitted to be heard bea dift jud the Supreme Court, subject to the following terms.

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3. Declaration that the alleged agreement between the parties to build a tourist resort at No. 2 Lagoon with bungalows for tourists is too uncertain to ctute ding nforc agreement.

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4.&n;"> & Declaration that the parties executed Commercial Lease Title No. 12/0913/022 under the mutual mistake that the execution of the lease was part of a wider enforceable agreement that inclonstrn of a of a tour tourist resort of undefined proportion on the leasehold land.

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6. &nbs; Direct thellanellant within 28 days to give to the Respondent’s solicitor the following particulars in so far as he relies on tor thpose s comtion :-

class="MsoNoMsoNormal" style="text-indent: -29.25pt; margin-left: 101.25pt; margin-top: 1; margin-bottom: 1"> (a) &bsp; ;&nbssp;&nbp; &nsp; ; p Purticulars oars of moneys expended on improvements and developments of the land since the registration of the lease.

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class="MsoNoMsoNormal" style="text-indent: -29.25pt; margin-left: 101.25pt; margin-top: 1; margin-bottom: 1"> pan style="font:7.0pt "Times New Roman""> &nsp; & p;&nbp; &nsp; & p; A concise sume summary of each improvement or development he has effected on the land since registration of the lease.

p clasoNorstyle="margin-l36.0pt; margin-top: 1; marginargin-bott-bottom: 1om: 1"> ">

class="MsoNoMsoNormal" style="text-indent: -29.25pt; margin-left: 101.25pt; margin-top: 1; margin-bottom: 1"> (c) &nsp; & p;&nbp; &nsp; & p; A statement oent of the compensation now claimed after giving specified credit for his enjoyment ofland mprov sincistraof he lease.ease.

(d) &nnsp;&&nsp;;&nspp;&nssp; sp; The valuation evidence (if any) he intends to rely upon in support of his compensation claim.

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8. Within 28 dayr of receiving the information specified in paragraph 6 above the Respondent is to indicate whether he accepts the Appellant’s csatioim, a not ate wompensation he is p is preparrepared toed to pay pay and what parts of the information supplied by the Appellant that he disputes. Within the same 28 days period the Respondent is to supply the Appellant’s solicitor with whatever valuation evidence he intends to rely on in support of his response to the Appellant’s claim.

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9.&nbsp &nbssp; If agreement is not reached between the parties within 14 days of the Respondent supplying the information specified in paph 8her p is at liberty to arrange a directirections hearing before a judge of the Suhe Supremepreme Court for the assessment of the advance payment of rent to be refunded and the equitable compensation to be paid in exchange for the rescission of lease.

10. Ipan>If agrt ient is reached between the parties the following terms are to apply:-

(a)

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(bn style="font:7.0pt "Times New Roman""> &nbs; span>esp Respondents&nbss shall havenths within whic which to pay the agreed refund of rent and compensation to the Appellant.

&nb"> &nnbsp; Upon paon payment, the Appellant at his expense shall deliver a surrender of the lease to the Respondent.

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&n;"> & Until the sure surrender the Appellant shall have the right to continue to occupy the said leasehold land as if the lease were valid and in full force and effect.

p class="MsoNoMsoNormal" style="text-indent: -18.75pt; margin-left: 72.75pt; margin-top: 1; margin-bottom: 1"> (e) ; pan>All outl outgoingsoings on the leasehold land to be adjusted to the date of settlement when the surrender is deli.

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(f) & Ipan>If the agreed refund of advance rent and compensation is not paid within 6 months of the agrt being recorded in writing (or within such other time as is allowed by Order of the the trial judge) paragraphs 4 – 10 (e) of this Consent Order shall cease to operate or to have effect. The action will stand dismissed and the said lease will continue to operate according to its written terms.

11. I event tent that the dispute between the parties is resolved by agreement within the timeframe envisaged in paragraphs 4 – 10 above each party to bear his own costs. In the event tgreement as to refund of of advance rent and compensation is reached and the Respondent then defaults in payment under Clause 10, Order that the Respondent pay the Appellant’s costs of the proceedings (including the costs of the trial before Marum J. and this appeal) fixed at a gross sum of VT550.000.

Dated at Port Vila, this 26^th dayctober 2001.

BY THE COURT

Hon. John W. von Doussa J.