Walker v Colmar [2010] VUCA 5; Civil Appeal Case 05 of 2010 (30 April 2010)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

CIVIL APPEAL CASE No.05 OF 2010

BETWEEN:

SCOTT WALKER
Appellant

AND:

PETER COLMAR
First Respondent

AND:

RAOUL TRAN
Second Respondent

AND:

JOSEPH LIVO MALUM
Third Respondent

AND:

THE REPUBLIC OF VANUATU
Fourth Respondent

Coram: Chief Justice Vincent Lunabek
Justice Bruce Robertson
Justice John von Doussa
Justice Nevin Dawson
Justice Daniel Fatiaki

Counsel: Mr John Malcolm for the Appellants
Mr J.W. Timakata for the First Respondent
Ms Jennifer Harders the First and Second Respondents

Date of hearing: 19th, 27th & 29th April 2010
Date of Judgment: 30th April 2010

JUDGMENT

1. This is an appeal against decisions made in the Supreme Court at Luganville on the 2nd March 2009 and 20th May 2009.

2. The issue is the ownership of Leasehold Title 04/2623/003.

3. The Appellant, Mr Walker was registered as lessee.

4. As a result of a proceeding held without reference to him on 2nd March 2009 the Court held that the First Respondent was entitled to be registered as the lessee.

5. By an order of 20th May 2009 (in respect of which again there was no advice to Mr Walker) an order was made which had the effect of actually putting Mr Colmar on the title as lessee.

6. By order of the 8th February 2010 the same judge granted Mr Walker and the Republic of Vanuatu party status in the proceeding and restrained any dealings with the title.

7. There were some initial issues because Mr Colmar is out of the jurisdiction but the history of this matter led the Court to indicate that immediate action was required. When the matter was called for the second time in the session Mr Timakata appeared.

8. After negotiations and discussions the following Orders are made by consent:

(1) The appeal is allowed. The Orders of the Supreme Court dated 2nd March 2009 and 20th May 2009 are quashed.

(2) The Department of Lands is to cancel the registration of Peter Colmar as trustee of the Valele Trust as registered lessee and to reinstate Scott Walker as Trustee for S.F. Walker Superannuation Funds as the registered lessee of lease O4/2623/003.

(3) The original substantive proceedings (including the parties who became involved pursuant to the Orders of 8th February 2010) are to be listed for further hearing. In the first instance that will be in Port-Vila. The parties are free to apply for it to be heard in Luganville if they so desire.

(4) Pending the determination of the Supreme Court on the substantive matter then apart from the cancellation of registration and reinstatement as noted in part 2 hereof-

(a) No party is to register any charge, mortgage or transfer or register any other dealing on the said title whatsoever without leave of the Court;

(b) Scott Walker as trustee of the SF Walker Superannuation Fund ("SFWSF") is to maintain possession and occupancy of the said property, itself or by its authorised agents or employees but not to undertake any form of development;

(c) SFWSF to maintain the property and its amenities to its current position subject to fair wear and tear;

(d) Peter Colmar, the Valele Trust, their agents, assigns or employees are prohibited from entry on to the property other then with the express invitation of SFWSF or by Court Order and are not to interfere with egress or ingress or maintenance by SFWSF on the said property;

(e) Mr Colmar as the original Claimant is to replead the matter within 30 days. Those pleadings must involve all parties with an interest in the property and detail specifically the claims made to the property and the total involvements in it. Any defences are to be filed within 14 days and any reply in a further 7 days thereafter.

(f) A further 14 days thereafter Mr Colmar as Claimant is to file any or further sworn statements upon which he will rely and any other party may file further affidavits 14 days thereafter. All parties may refer to sworn statements which are already on the file.

(g) Mr Colmar as Claimant will have a right to reply within a further 7 days.

(5) A pre-trial conference is scheduled before the Chief Justice at 8.30AM on Friday 13th August. Liberty is granted to any party to apply for further essential directions or orders in the meantime.

DATED at Port-Vila this 30th day of April 2010

BY THE COURT

Chief Justice Vincent LUNABEK
Justice Bruce ROBERTSON
Justice John von DOUSSA
Justice Nevin DAWSON
Justice Daniel FATIAKI