In re Sabra Trust, Atkinson v Gee [1998] VUSC 8; Civil Case 175 of 1997 & Company Case No 022 of 1997 (28 April 1998)

IN THE SUPREME COURT OF
REPUBLIC OF VANUATU

Civil Jurisdiction

CIVIL CASE NO. 175 OF 1997, AND
COMPANY CASE NO. 22 OF 1997

IER">IN THE MATTER OF: SABRA TRUST

BETWEEN:

GEORGE ATKIbr> Plaintiff

AND:

GEOFFREOFFREY ROBERT GEE
First Defendant

AND

JAMES NOALL
Second Defendant

Cor">Coram: Mr Justice Oliver A. SAKSAK.

Counsel: Mr Juris Ozols for the Plaintiff.
 p; &nnsp;&&nsp;&nnbsp; &nsp; Mr John Malcolm for tfor the Defendant.
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INTERLOCUTOOCUTORY JURY JUDGMENT

Tparatlications came before me inme in Cham Chambers bers on Thursday 16^th April 1998 by way of Notices of Motion. The first application was brought by Mr Ozols on behalf of the Plaintiff seeking orders that:-

(a) The Court make rulings sought pursuant to the Order 58 summons filed in Civil Case No.175 of 1997.

(b) James Noall commence proceedings by proper process ie: by Writ of Summons.

(c) James Noall provide security for costs in respect of any such Writ of Summons in the sum of VT5 million.

(d) James Noall pay into Court the sum of $92.000 transferred to him by Mr Geoffrey Gee.

(e) Geoffrey Gee on his own behalf and on behalf of Geoffrey Gee & Partners provide an accounting of all funds received and disbursed on behalf of Atlas Investments Limited.

(f) Geoffrey Gee on his own behalf and on behalf of Geoffrey Gee & Partners file verified list of documents within 14 days.

(g) Inspection to take place within 14 days thereafter.

(h) Liberty to apply to the court on 72 hours notice.

(i) Costs be reserved.

(j) Such further or other orders at the Court deems fit.

I deal first with this Application in the following manner:-

(a) Declarations sought under Order 58 summons.

The plaintiff applied by way of an Originating Summons pursuant to Order 58 of the High Court (Civil Procedure) Rules 1964. This summons was filed on 10^th December 1997. By it the Plaintiff sought the following declarations:-

(a) That pursuant to the term of the Sabra Trust and in accordance with the actions taken by the Defendant the Plaintiff acquired the Sabra Trust in 1994 and that he became the "Protector" of the trust.

(b) That the term "Protector" as used by the trustee is synonymous with the term "nominator" used in the Deed of Trust and that the Plaintiff has the power, inter alia, to nominate or remove beneficiaries pursuant to the terms of the Deed of Trust.

(c) That by written direction dated 17^th September 1997 the Plaintiff has validly appointed Mr Gordon Atkinson as sole beneficiary of the Sabra Trust.

(d) That the Defendant as Trustee of the Sabra Trust is bound by law to put into effect such change of beneficiary.

(e) That the Defendant as Trustee is bound to comply with the limitations found in Clauses 2 and 3 and elsewhere in the Deed of Trust to comply with the directions of the Plaintiff as Nominator and/or seek his written consent as the case may be.

In my considered opinion it would be premature for this Court to make such declarations at this stage. The reason is that James Noall the Second Defendant, has challenged the validity of the Assignment dated 31/08/97 purportedly being his signature. This is Annexure "C" in the affidavit of the Plaintiff dated 19^th November 1997. This challenge was the basis of the Order of this Court in paragraph 7 of the Orders dated 12^th December 1997 which reads:-

"That the Defendant Mr Geoffrey Gee forthwith provide the Third Party by his solicitor the originals of annexure "C" of the affidavit of Mr George Atkinson to be released to the custody of Forensic Document Services Pty Ltd. For the purposes of enabling Mr James Noall to have that/those document(s) scientifically examined."

It is important to have the results of that scientific examination before the Court could make any declarations. But I must express the Court’s concern at the delay in getting the results. It is now some 5 months since the Order was made and at the last hearing no update information was forth-coming from the Counsel for the Second Defendant. The last correspondences on this matter are Annexures "A" and "B" in the affidavit of Mr John Ridgway. It seems to me that nothing is being done by Counsel to obtain this examination and its results. For this reason, the Order as sought in paragraph (a) is refused.

(b) That James Noall commence separate legal proceedings by Writ of Summons.

This Order is refused. It is common knowledge that Civil Cases No. 22 and 175 of 1997 have been consolidated into one case. A Memorandum of Appearance was filed on his behalf dated 21^st November 1997 on 24^th November. His status is not as a Third Party but as the Second Defendant. This is so held because in Third Party procedure under Order 18 of the High Court Rules it is the Defendant taking action against a party not already a party to the action. This is not the case here. Rather it is the Plaintiff who is claiming title to the $92.000 already transferred to James Noall and as such it follows logically that he should be made the Second Defendant.

(c) That James Noall provide Security for costs.

This Order is refused for reasons given in (b) above.

(d) That James Noall pay into Court the sum of $92.000.

This Order is refused. This money has been paid in good faith and in the belief that James Noall was and is at all material times the beneficiary of the Sabra Trust. The Court took cognisance of this fact in its Order dated 27^th May 1997. It is now encumbent upon the Plaintiff to prove to the Court that he is the beneficial owner of the Sabra Trust. In the event that he so proves to the Court, the $92.000 paid over to James Noall would then be a debt for which the Court would make appropriate Orders for its repayment.

(e) That Geoffrey Gee and Geoffrey Gee & Partners provide Accounting statements of all funds received and disbursed.

There is no objection to this and this Order will be granted.

(f) That Geoffrey Gee and Geoffrey Gee & Partners file a verified list of documents.

Again there is no objection to this Order being made and the Court will grant such Order. The period will be 28 days instead of 14 days.

(g) Inspection within 14 days.

There is no objection to this Order and the Court would grant it accordingly.

(h) Liberty to apply on 72 hours Notice.

There is no objection to this Order and it will be granted,

(i) Costs reserved

There is no objection and it will be granted.

The Orders granted by this Court in respect of the Plaintiff’s application are:-

(1) That Geoffrey Gee on his own behalf and on behalf of Geoffrey Gee and Partners provide accounts of all funds received and disbursed to the Plaintiff’s Counsel by 30^th April 1998.

(2) That Geoffrey Gee on his own behalf and on behalf of Geoffrey Gee and Partners file a verified list of documents within 28 days from the date of this Order.

(3) That there be inspection by all parties within 14 days after service of the verified list of documents as required in (2) above.

(4) That there be liberty to all parties to apply on 72 hours notice.

(5) That costs be reserved.

I move now to deal with the Application by Mr Blake on behalf of the Second Defendant. He seeks the following Orders :-

(1) That Satellite Holdings Ltd and Regent Ltd be added as parties to these proceedings.

Mr Malcolm took strong objection to the granting of this Order because doing so would increase costs.

This Court takes the view that this is not necessary. These companies have been placed under restraining Orders of this Court dated 12^th December 1997 (see paragraph 6). The Second Defendant has not made any offer as to security for costs and therefore this Court agrees that to include them as parties would entail unnecessary costs. This Order is refused.

(2) That Jonathan Glenn Law be appointed as trustee of the Sabra Trust in place of Geoffrey Robert Gee.

Mr Malcolm did not object to having such Order. But this Court cannot agree to granting such an Order. Again in my view costs would increase. We would have another party and the process of access to information and furnishing the same would not only be hampered but unnecessarily lengthened. Again provided the Second Defendant and/or the Plaintiff can put up security for costs, this Order must be refused.

(3) Having refused Order 2 it is unnecessary to consider the request in paragraph (3).

(4) That Regent Ltd and Satellite Ltd be restrained.

Again this Order is not necessary because these two companies are already restrained by Court Order paragraph 6 of Orders dated 12^th December 1997.

(5) That Geoffrey Gee and Partners provide to the Court a copy of the current and update company register of Atlas Investments Ltd, to be made available for inspection by all parties.

Mr Malcolm told the Court that the Accounting Firm responsible for the accounts of Atlas Investments are the Accounting Firm of KPMG. He did not object to providing documents for inspection if ordered by the Court.

The Court views that it is important for the inspection of these documents by all parties and will therefore order production.

(6) The Order here sought is unnecessary as the Directors of Atlas Investments Ltd are already restrained by Court Order.

(7) This Order is unnecessary and is refused.

(8) This Order is unnecessary and is refused.

(9) The Order sought here is unnecessary at this stage. This proposed action should await the final outcome of the case.

(10) That George Atkinson, James Noall and Geoffrey Gee & Partners (in the case of Geoffrey Gee & Partners on their own behalf and on behalf of Atlas Investments Ltd, Regent Ltd and Satellite Holdings Ltd) file verified lists of documents within 42 days.

Mr Malcolm did not object to such an Order being made. The Court sees this as necessary and will grant the Order as sought.

(11) That there be inspection within 14 days. Ther has been no objection to this taking place and this Order will be granted.

(12) That after satisfaction of Orders 10 and 11 (as above) the matter be relisted for directions regarding the conduct of the hearing.

There has been no objection and an Order will be granted to that effect.

(13) That there be liberty to apply to the Court on 72 hours notice.

There being no objection an Order will issue.

(14) That costs be reserved. There being no objection an Order will issue accordingly.

The following are therefore the Orders :-

(1) That Geoffrey Gee & Partners and KPMG provide to this Court and to all the other parties by 30^th April 1998 a copy of the current and up to date company register of Atlas Investments Ltd to be available for inspection by all parties.

(2) That George Atkinson, James Noall and Geoffrey Gee & Partners on their own behalf and on behalf of Atlas Investments Ltd, Regent Ltd, and Satellite Holdings Ltd file and serve a verified list of documents within 42 days.

(3) That inspection by all parties take place within 14 days thereafter.

(4) That after satisfaction of Orders (2) and (3) above, the matter be relisted for a further directions regarding the hearing of the matter.

(5) That there be liberty to all parties to apply to the Court on 72 hours notice.

(6) That costs be reserved.

Dated at Port Vila, this 28th day of April 1998.

BY ORDER OF THE COURT

Oliver A. SAKSAK
Judge of the Supreme Court