Barrett v Kam [1984] VULawRp 12; [1980-1994] Van LR 102 (26 June 1984)

[1980-1994] Van LR 102

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 192 of 1983

BETWEEN:

LINDSAY DAVID BARRETT, ROSS GRAHAM PAULING
and GARY FRANCIS PHAIR,
acting as Joint Receivers and Managers of the property of
GEORGE WONG KAM and ANNIE WONG KAM
Plaintiffs

AND:

GEORGE WONG KAM
First Defendant

AND:

SOCIETE ANONYME BANQUE INDOSUEZ VANUATU
Second Defendant

AND:

BARCLAYS BANK INTERNATIONAL LIMITED
Third Defendant

AND:

AUSTRALIAN AND NEW ZEALAND BANKING GROUP LIMITED
Fourth Defendant

Coram: Chief Justice Cooke

Counsel: Mr S. Hakwa for Attorney General
Mr G. Vasaris for Second, Third and Fourth Defendants

JUDGMENT

[JUDGMENTS AND ORDERS - Application To Set Aside Order Joining Parties As Defendants; INDEPENDENCE - Effect Of On Land Dealings]

On the 5th of June 1984 an ex parte application was made to me in Chambers by Mr Vasaris on behalf of the second, third and fourth defendants to join the fifth, sixth and seventh defendants for the purpose of seeking clarification as to the execution of my judgment delivered on the 4th day of May 1984. The application of Mr Vasaris was under Order 17 Rule 11 of the High Court (Civil Procedure) Rules 1964, still applicable in Vanuatu by virtue of Article 93 (2) of the Constitution. This order and rule is identical to Order 15 Rule 6 of the Supreme Court Practice 1979 of England (commonly called the 'White Book'). On hearing the application and in my opinion the application being reasonable to ensure execution of my judgment, I made the necessary Order.

On the 13th of June 1984, the Attorney General applied by way of Motion to have the Order joining the fifth, sixth and seventh defendants set aside under Order 55 of the High Court (Civil Procedure) Rules 1964.

Before hearing the Attorney General and Counsel, Mr Vasaris for the second, third and fourth defendants, and Mr Coombe for the first defendant being present, I explained to Counsel that I had made the Order and were they satisfied that I should now hear the Motion to set aside the Order. Possibly they wished another Court to hear the application. Further that if I heard the application it would be final. Mr Hakwa, the Attorney General, Mr Vasaris and Mr Coombe all declared that they did not object to me hearing the application by the Attorney General.

Mr Hakwa, in his submission contended that the Court had no jurisdiction to make the Order. He referred the Court to Odgers 22nd Ed. p. 305 which states that the judgment finally dispenses of all matters at issue in the action. In the circumstances therefore, he submitted Order 17 Rule 11 cannot be used in this case as the judgment disposes of the matter. He submitted the fifth, sixth and seventh defendants were not parties to the action, therefore on that basis an Order cannot be made under that rule. Mr Hakwa referred me to the case of Pattman's Will Trusts, Westminster Bank Ltd, Re v Pattman (1965) 2 All E.R. p. 191. I have no objection to the eventual ruling of Cross J in that case as the facts were final and the suit could be considered as terminated.

Mr Vasaris, in reply, submitted there was not a final judgment on the issues for example the ranking of priority of the three banks. It is quite obvious that other matters flow for determination whether bank secured or unsecured creditors. He submitted that the object of Order 15 Rule 6 was to avoid multiplicity of suits and its interpretation should be widely exercised.

On reading the notes attached to Order 15 Rule 6 of the White Book, it is clearly stated that parties may be added even after judgment so long as anything remains to be done in the action, though it is only an assessment of damages. It continues by stating that the matter is one of discretion in the circumstances of each case. In the well known case of Campbell v Holyland [1877] UKLawRpCh 303; (1877) 7 Ch. D. 166 it was held that if a party to a foreclosure action has assigned his interest after decree, the assignee may be made a party to the action even after the Order for foreclosure absolute: Thus, where after decree in a foreclosure action the mortgagor's interest has been purchased by A, and the mortgagee's interest by B, and an Order was afterwards made for foreclosure absolute on an ex parte application by the plaintiff, the mortgagee, A and B were, on motion by A, ordered to be made co-defendants, and a subsequent motion by B, to discharge that order as irregular on the ground that the action was, in fact, at an end, was refused. In his judgment, Jessel, M.R., at page 168 and 169 said:-

"I think the Order of the Court which is sought to be set aside must stand. An order for foreclosure, according to the practice of the Old Court of Chancery, was never really absolute, nor can it be so now. In cases of great hardship a mortgagor might have obtained further time for payment, and the suit was allowed to go on after decree. The decree, though final in terms, was not final in fact, and the suit could not be considered as terminated. The practice is that if in a foreclosure action one of the parties assigns his interest, and the other party thinks it right to have the assignee before the Court, the assignee is not entitled to object, as it is desirable in all litigation to have all the parties interested before the Court. In this case it is better for the purchaser from the mortgagee, who is the person really interested, as well as for everybody else, that he should conduct his own case. It seems to me, therefore, having regard to the nature of the litigation, that he ought to remain before the Court. The motion must be refused, but as the case is a novel one the costs will be costs in the action."

In the case before me, the judgment though final in terms, was not final in fact, and the suit could not be considered as terminated. There are unique circumstances. The first defendant in view of Constitutional changes lost the title to land he possessed. The second, third and fourth granted loans to the first defendant appertaining to the said title. The position now, in view of the Constitutional change which transferred all land in the Republic on the 30th July 1980 to the indigenous custom owners and their descendants, is that the first defendant possesses a negotiator's certificate which may entitle him to a lease or in lieu thereof compensation. When judgment was given it was not known which was to be given to the first defendant. That being so facts somewhat similar to the case referred to by me arise. In my judgment all I could do at that time in this case was award equitable interests to the second, third and fourth defendants but further security for them remains on the outcome of the decision of what is granted to the first defendant. Meanwhile, it is necessary that the interests granted in my judgment be secured by the adding of the fifth, sixth and seventh defendants. I feel I have an absolute discretion to do so in view of the unique facts of this case. In normal circumstances I would agree with Mr Hakwa, the Attorney General, and indeed in normal circumstances I would not have made the Order. The Attorney General was correct to bring the motion but on this occasion I am of the opinion that the Order of the Court was correct and that which is now sought by the Attorney General must be refused. On further consideration, I think, as Jessel M.R. did in the Campbell v Holyland case, that the circumstances here are novel and I reverse the Order made in Court granting costs to the first, second, third and fourth defendants, and instead order that they be paid their costs from monies in the hands of the plaintiffs.

26 June 1984

FREDERICK G. COOKE
CHIEF JUSTICE