You are here:
PacLII >>
Databases >>
Court of Appeal of Vanuatu >>
2020 >>
[2020] VUCA 38
Database Search
| Name Search
| Recent Decisions
| Noteup
| LawCite
| Download
| Help
Download original PDF
Melteklesi v Malvirlani [2020] VUCA 38; Civil Appeal Case 3155 of 2019 (17 July 2020)
IN THE COURT OF APPEAL OF THE REPUBLIC OF VANUATU (Civil Appellate Jurisdiction) | Civil Appeal Case No. 19/3155 CoA/CIVA |
|
|
BETWEEN: | Rocky Melteklesi |
| Appellant |
|
|
AND: | Dimitri Malvirlani |
| First Respondent |
|
|
AND: | Republic of Vanuatu |
| Second Respondent |
Coram: Hon. Chief Justice V. Lunabek
Hon. Justice B. Robertson
Hon. Justice O. Saksak
Hon. Justice J. Mansfield
Hon. Justice G.A. Andrée Wiltens
Hon. Justice V.M. Trief
Counsel: Mr B. Livo for the Appellant
Mr J. Tari for the First Respondent
Mr S. Aron for the Second Respondent
Date of Hearing: 7 July 2020
Date of Judgment: 17 July 2020
JUDGMENT
- Introduction
- The Supreme Court found that the transfer of the Appellant Rocky Melteklesi’s lease to the First Respondent Dimitri Malvirlani
was fraudulent. Mr Melteklesi appeals the associated order made that he must first pay Dimitri Malvirlani VT3,102,242 before the
fraudulent transfer is cancelled and he is restored as the registered proprietor.
- Background
- Mr Melteklesi allowed his leasehold title no. 11/OG21/050 to be used as security for a National Bank of Vanuatu (‘Bank’)
loan to his relatives Rogatien Malvirlani and Jacqueline Rory (the ‘2 Borrowers’). They used the loan monies to buy a
vehicle.
- The 2 Borrowers fell into arrears with the loan which resulted in the Bank threatening to seize the property. To avoid the Bank calling
in the security, the 2 Borrowers sought assistance to pay off the loan. It was repaid with Dimitri Malvirlani’s assistance
and the mortgage over Mr Melteklesi’s lease discharged.
- Subsequently, the 2 Bors transferred Mr Melteklesi’s lease to Dimitri Malvirlani. Dimitri Malvirlani cani commenroceeroceedings
to evict Mr Melteklesi from the leasehold property. Mr Melteklesi counter claimed that the lease transfer to Dimitri Malvirlani was
obtained by . The Supreme Court held in his favour that the transfer waer was fraudulent. That decision has not been challenged.
- Mr Melteklesi appeals the associated order that he must first pay Dimitri Malvirlani VT3,102,242 before the fraudulent transfer is
cancelled and he is restored as the registered proprietor.
- The Second Respondent the State abides the decision of this Court.
- Submissions
- Mr Livo submitted that Mr Melteklesi was not a Bank customer. He did not owe money under the loan. Moreover, he was not party to the
arrangement between the 2 Borrowers and Dimitri Malvirlani for the latter to help the former repay the loan. In Mr Livo’s submission,
if anyone needs to repay Dimitri Malvirlani, it is the 2 Borrowers, not Mr Melteklesi.
- Further, that if this Court found against Mr Melteklesi on this, it should require repayment of only VT1,000,000 which was what Mr
Malvirlani paid towards the loan. Mr Livo submitted that Mr Melteklesi consented to his property being used as security for the 2
Borrowers’ loan, but not to repay the loan.
- Mr Tari submitted that the unchallenged evidence in the Court below was that Mr Malvirlani VT1,000,000 towa towards the loan, but
then also gave Rogatien Malvirlani the balance owed of VT2,102,242. Accordingly, Dimitri Malvirlani should be repaid VT3242. Mr Tari
submitted that Mr Melteklesi should repay Dimi Dimitri Malvirlani as he agreed to his property securing the 2 Borrowers’ loan.
- Discussion
- Mr Melteklesi agreed to his property securing the 2 Borrowers’ loan. That loan was repaid with Mr Malvirlani’s assistance
and the mortgage over the property was discharged.
- The discharge meant that the property was mortgage-free land. Any obligations that Mr Melteklesi hadelation to seto securing the loan
had been discharged. Moreover, he was not party to the arrangements between the 2 Borrowed DimMalvirlani that that resulted in the
repayment of the loan. In the circumstances, the the Supreme Court order that Mr Melteklest pay Dimitri Malvirlani VT3,102,242 cannot
stand.
- Result
- The appeal is allowed. Order 2 of the Supreme Court namely that Mr Melteklesi must first pay Dimitri Malvirlani VT3,102,242 is set
aside.
- Additionally, the following order is made in substitution for Order 1 of the Supreme Court:
- The registration of the transfer of leasehold title no. 11/OG21/050 to Dimitri Malvirlani is hereby cancelled and the lease is to
be restored in the name of Rocky Melteklesi as lessee.
- The First Respondent is to pay the Appellant’s costs of this appeal which we set at VT75,000, to be paid within 21 days.
- There is no order as to the costs of this appeal for the Second Respondent.
DATED at Port Vila this 17th day of July 2020
BY THE COURT
.................................................
Hon. Chief Justice Vincent Lunabek
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/vu/cases/VUCA/2020/38.html