Bali Hai Ltd v Elkhorn Development Pty Ltd [1991] VULawRp 3; [1980-1994] Van LR 506 (26 March 1991)

[1980-1994] VanLR 506

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 119 of 1990

BETWEEN:

BALI HAI LIMITED
Plaintiff

AND:

ELKHORN DEVELOPMENT PTY LIMITED
First Defendant

AND:

PETER JOHN NICHOLSON
Second Defendant

AND:

SUZANNE DOROTHY NICHOLSON
Third Defendant

AND:

IRIRIKI ISLAND RESORT LIMITED
Fourth Defendant

Coram: Goldsbrough J.

JUDGMENT

[REGISTRATION OF LAND - cautions - COURTS - jurisdictions of court]

The notice of motion requests this court to consider the cautions registered against four leasehold titles by the plaintiff in this case which affect the rights of the defendants herein.

Whether this court has jurisdiction to deal with this issue has been raised by counsel for the plaintiff and having heard counsel for both the plaintiff and the defendants this judgment deals only with that question.

A person adversely affected by a caution may apply to the Director of Lands Records for removal of that caution under s97(2) of the Land Leases Act [Cap 163].

That was done on the defendants' behalf on 19.9.90.

The Director of Lands Records gave notice to the plaintiff company as required by s. 97(3) of that Act and it seems, decided to allow the caution to continue to be registered, he having received "a certified copy of pending court proceedings" as referred to in s97(3).

I say it seems as I have not had sight of any reply from the Director of Land Records to the defendant's solicitor's letter of 19.9.90.

The "decision" to allow the caution to remain registered after objection had been taken to it is a decision which may have been appealed under section 106 of the same Act by these defendants.

Indeed the Director of Land Records may have himself chosen to refer the question to the court under section 8 of the Act for its decision.

Neither of these courses have been taken, and today the party who first applied for the caution to be registered, and the parties who objected to continued registration are all in court. The Director of Lands Records has shown by his action (if not his words) that he considers these proceeding "pending court proceedings" as a result of which the validity or otherwise of the claim of the cautioner appears likely to be determined.

Put another way the Director accepts that these proceedings appear likely to determine the validity of the caution.

The parties to the case are here, the Director of Land Records accepts these proceedings are likely to determine the issue, this court is the forum given by legislation the duty to determine whether the caution rightly continues to be registered.

Quiet apart from Cap 163 this court is seized of a most extensive jurisdiction, under the Constitution, and under the Courts Act [Cap 122].

In those circumstances albeit that the parties are not here under section 106 or section 8 of Cap 163 I take the view that the legislation clearly envisages that this court has jurisdiction to decide the validity of a caution other than under those two provisions, and that this court should do so.

Dated this 26th day of March 1991.

E P GOLDSBROUGH
SUPREME COURT JUDGE