Castelli v South Pacific Properties & Investments Ltd [1999] VUSC 30; Civil Case 136 of 1996 (23 June 1999)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

Civil Jurisdiction

Civil Case No. 136 of 1996

IER">IN THE MATTER OF:
A Mortgage dated 28^th September, 1993

AND IN THE MATTER OF:
The Land Leases Act [CAP 163]

BETWEEN:

GIANCARLO CASTELLI AND
MITA FINCANCIAL SERVICES LTD
Plaintiff

AND:

SOUTH PACIFIC PROPERTIES AND INVESTMENTS LTD
Defendant

AND:

TONY VITA
Interested Third Party

Coram: Before Mr JuMr Justice Oliver A. Saksak
Mrs M. Sese – Court Clerk

Counsel: Mr John Malcolm for the Plaintiffs
Mrr C. de Robillard appearing as a Friend of Tony Vita

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JUDGMENT

The Plaintiff applies by way of an Originating Summons filed on 15^th October 1996 issued under Order 57 Rules 4 & 8 of the High Court (Civil Procedure) Rules 1964. The Court first heard the Application on 27^th October 1997. Two matters were before the Court at the time the first being the determining of the grant of Orders sought in the Originating Summons and the second being a Notice of Motion by Mr Vita to have Mr Silas Hakwa joined as a party to the proceedings and further that Civil Case No. 140 of 1994 be restored and heard simultaneously with Civil Case No. 136 of 1996.

I delivered a judgment dated 28^th November 1997. In relation to the Originating Summons, I clearly identified the Parties to these proceedings under Issue No. 1. Under issue No.2 I dealt with whether or not there was an enforceable Mortgage between the Parties which I found there was and there is. Under Issue No. 3 I dealt with whether or not there was a Notice of Demand and found that there was and further found that despite the issuing of the Notice of Demand, no payment was made. After reaching those findings this is what I said:-

"The answers to all these issues are in the affirmative and would have been enough to satisfy the Court to grant the Orders enforcing the Mortgage. However upon careful examination of the documents before the Court there are certain defects or omissions which must be attributed to the Plaintiff.

Firstly the Plaintiff has omitted to annex copies of the actual leases or leasehold titles which are referred to in the Mortgage as 12/0821/027-052 and 12/0822/046-062. This Court must know who the actual leaseholders are and indeed any interested party who may be affected. The absence of these documents means that there is no full disclosure and the Court is unable to decide on incomplete or insufficient evidence.

Secondly there is a document that causes much problem and difficulty. This is the Deed of Agreement annexed "D" in the affidavit of Steven Pellegrino. There are 4 parties to this Agreement. There are:-

(1) Tony Vita

(2) South Pacific Properties & Investments Ltd

(3) Steven Pellegrino

(4) Giancarlo Castelli."

I found that because of the Agreement there were some connections between Civil Cases No. 140 of 1994 and No. 136 of 1996 and ordered that Civil Case No. 140 of 1994 be restored.

The Plaintiff appealed against that judgment and succeeded in part. The Orders of this Court restoring Civil Case No. 140 of 1994 were set aside by the Court of Appeal who then directed that the matter be re-listed before me on 10^th December 1998. Further the Court of Appeal gave liberty to all parties to file further affidavit evidence on which they intended to rely by Friday 20^th November 1998 and to file affidavits in reply by 4^th December 1998.

Part of my judgment has remained intact, in particular that in relation to the Originating Summons and the three issues canvassed.

Mr Malcolm has urged the Court to go back to that part of the judgment and to finally determine the application before it after showing to the Court that the Plaintiff has complied with the Orders of this Court and of the Court of Appeal by filing on 15^th December 1997 an affidavit by Geoffrey Gee annexing copies of all the Leasehold Titles in question.

Mr de Robillard on behalf of the Interested Third Party has argued in objection to the Orders sought in the Plaintiff’s Originating Summons for the following reasons:-

(a) That the Defendant is not in appearance not having been served.

(b) That Mr Malcolm is acting in a conflict of interest as he acted for one party in 1994 and acting against the other in 1996.

I do not wish to canvass every argument and submission given by Mr de Robillard because for me, when the Court of Appeal has ruled that Civil Case No. 140 of 1994 has been determined by settlement, that is the end of that matter. Whether it is right or wrong, it is law unless and until changed by the Court of Appeal itself.

Therefore as far as I am concerned, the only issues for me to consider are whether or not the parties complied with the Orders of this Court and of the Court of Appeal dated 22 October, 1998.

On 10^th December 1998 the Court ordered among others, that Mr Vita file and serve affidavits; on the Plaintiff within one month before 12^th March, 1999. That has not been done. Neither has Mr Vita made use of the liberty given to him by the Court of Appeal in October 1998.

As regards non-appearance by the Defendant, it appears from the records that the Defendant has never appeared at any time in the past whether in this or other proceedings. He was served with the Summons and affidavit of Steven Pellegrino as long ago as 11^th December, 1996. There has been no appearances in any proceedings by him.

As regards the argument that Mr Malcolm is acting in a conflict of interest, I find no evidence to support that contention.

In the circumstances, I find for the Plaintiff and grant the Orders sought in the Originating Summons dated and filed 15^th October 1996.

I further Order that the Defendant only pays the Plaintiff’s costs of this application.

DATED AT PORT-VILA, this 23^rd DAY OF JUNE 1999

BY THE COURT

OLIVER A. SAKSAK
JUDGE