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 2001

BETWEEN:

MR. RICHARD SCHUELER
Appellant

AND:

MR. WAYA TENENE
Respondent

Coram: Hon. Justice John von Doussa
Hon. Justice Daniel Fatiaki
Hon. Justice Roger J. Coventry

Hearing Date: 26th October 2001.

Counsels: Mr. John Malcolm for the Appellant
Mr. Hilary Toa for the Respondent

CONSENT ORDERS

By consent the Court makes the following declarations, orders and directions:-

1. Appeal allowed;

2. The Order made on 9^th April 2001 is set aside and the matter is remitted to be heard before a different judge of the Supreme Court, subject to the following terms.

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 constitute a binding and enforceable agreement.

4. 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 would include construction of a tourist resort of undefined proportion on the leasehold land.

5. Declaration that the respondent is in equity entitled to have the said lease rescinded upon repayment of rent paid in advance and paying just compensation to the Appellant for improvements and developments on the land after allowing for the Appellant’s enjoyment of the land and improvements since the registration of the lease.

6. Direct the Appellant within 28 days to give to the Respondent’s solicitor the following particulars in so far as he relies on them for the purpose of his compensation claim:-

(a) Particulars of moneys expended on improvements and developments of the land since the registration of the lease.

(b) A concise summary of each improvement or development he has effected on the land since registration of the lease.

(c) A statement of the compensation now claimed after giving specified credit for his enjoyment of the land and improvement since registration of the lease.

(d) The valuation evidence (if any) he intends to rely upon in support of his compensation claim.

7. Upon giving three business days notice to the Appellant’s solicitor the Respondent and his appointed valuers or experts are to be given reasonable access during daylight hours to inspect the leasehold land and the improvements thereon.

8. Within 28 days of receiving the information specified in paragraph 6 above the Respondent is to indicate whether he accepts the Appellant’s compensation claim, and if not to state what compensation he is prepared to 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.

9. If agreement is not reached between the parties within 14 days of the Respondent supplying the information specified in paragraph 8, either party is at liberty to arrange a directions hearing before a judge of the Supreme 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 the lease.

10. If agreement is reached between the parties the following terms are to apply:-

(a) The parties shall forthwith record their agreement in writing.

(b) The Respondents shall have 6 months within which to pay the agreed refund of rent and compensation to the Appellant.

(c) Upon payment, the Appellant at his expense shall deliver a surrender of the lease to the Respondent.

(d) Until the 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.

(e) All outgoings on the leasehold land to be adjusted to the date of settlement when the surrender is delivered.

(f) If the agreed refund of advance rent and compensation is not paid within 6 months of the agreement being recorded in writing (or within such other time as is allowed by Order of 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. In the event 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 that agreement as to refund 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 day of October 2001.

BY THE COURT

Hon. John W. von Doussa J.