Edenhope Ltd v Veneer Logging Ltd [2016] VUCA 30; Civil Appeal Case 1561 of 2016 (22 July 2016)

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

Civil Appeal
Case No. 16/1561 CoA/CIVA

BETWEEN:

EDENHOPE LIMITED
Appellant

AND:

VENEER LOGGING LIMITED
Respondent

Before:
Hon. Chief Justice Vincent Lunabek
Hon. Justice Bruce Robertson
Hon. Justice John Mansfield
Hon. Justice Oliver Saksak
Hon. Justice Daniel Fatiaki
Hon. Justice Dudley Aru
Hon. Justice David Chetwynd

Counsel:
John Malcolm for the Appellant
Robert Sugden for the Respondent

Date of Hearing: 19 July 2016
Date of Judgment: 22 July 2016

ORDER SUBSEQUENT TO MEDIATION AGREEMENT

UPON this matter having been referred to mediation

AND UPON the parties having agreed to the terms set out in the signed agreement annexed hereto

IT IS ORDERED THAT:

1. The Agreement reached at mediation by the parties is hereby adopted as an order of the Court;
   
2. All further proceedings in this matter are stayed except for the purpose of carrying into effect the terms of the said Agreement.
   
3. For that purpose the parties have permission to apply to the Court.
   

BY THE COURT

Vincent LUNABEK
Chief Justice

IN THE SUPREME COURT OF THE REPUBLIC OF VANUATU

COURT-CONNECTED MEDIATION
MEDIATION AGREEMENT

IN THE MATTER OF MEDIATION BETWEEN EDENHOPE LIMITED AND VENEEER LOGGING LIMITED during the mediation session held on the 19th July, 2016 with the parties, together with their lawyers Robert Sugden and John Malcolm respectively it was agreed as follows:

1. That there is to be full and final settlement of all matters currently under litigation including:
   
   • (a) Civil Case 20 of 2009 and its Appeal;
     
   • (b) Civil Case 20 of 2011 and its Appeal; and
     
   • (c) All matters relating to the subject matter of the litigation inclusive of costs.
     
2. That there shall be orders as follows:
   
   1. Payment to Edenhope Limited in the amount of VT5 million by Veneer Logging Limited.
      
   2. Money order for the payment sum at a monthly rate of VT250, 000 payable on the 30th day of each month commencing 30th August, 2016. Edenhope to nominate a bank account to Veneers Solicitor.
      
   3. Interest on all unpaid amounts at 5% per annum.
      
3. In the event the payment of the monthly tranche is in default in excess of seven (7) days;
   
   • (i) The total unpaid balance shall become immediately due and payable at 5% per annum;
     
   • (ii) Edenhope Limited entitled to issue enforcement proceedings or proceedings under the Companies Act;
     
   • (iii) Service of any notices or demands are to be delivered to Veneers solicitors at their chambers or by email.
     
4. Veneers Limited shall be entitled to uplift the one (1) metre length timber pieces stipulated in the audit report of Melcoffee Sawmills certified by Neil Croucher dated 13th July, 2011 as annexed, being a total of 1874 pieces to a total 10.92 cubic metres.
   
5. In the event of a shortfall the judgment sum is to be reduced by a sum amounting to VT50, 000 per cubic meter of such shortfall.
   
6. Veneers Limited to uplift the timber pieces within three (3) months of the date of this order, such date to be resolved as acceptable to the parties. The parties are not to act unreasonably. Storage charges will apply after the three (3) month allowable time at Vt30,000 per month until collection and in the event the collection occurs in the course of a month pro rata for the days of the month.
   
7. The parties agree to supervision of the uplift of the timber pieces, and in the event that they are unable to agree to a supervisor jointly paid by each, each party to appoint and pay their own representative for such supervision.
   
8. Veneers Limited becomes the sole owner of the completed joinery held in the container being the doors, windows and louvres.
   
9. All claims for storage and quantum meruit are hereby discontinued.
   
10. In the event of dispute in respect to resolution of this agreement either party may refer the matter to the Master or other mediator as may be appointed.
    

(Sgd.) Stephen Quintos
as Director for the Appellant

(Sgd.) John Schick as
Director for the Respondent

(Sgd.) Robert Sugden

(Sgd.) John Malcolm