Makin v IAC Pacific Ltd [2001] VUSC 109; Civil Case 013 of 1999 (8 October 2001)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

lass="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> Civil Case No.13 of 1999

BETWEEN:

CAPTAIN PAUL A. J. MAKIN

Appellant

AND:

: 1"> I. A. C. PACIFIC LIMITED

Respondent

Coram: R. Marum J. MBE

Counsel: Mr. John Malcolm for the appellant

Mr. Nigel G. Morrison for the respondent

ORAL JUDGMENT

This was an application by thellant to grant him leave to appeal the decision that I made on the 9^th Fep> February 2001.

The reasons for not granting leave to amend are contained hat judgment, basically upon action of fraud, misrepresentasentation and statutory breaches after the commencement of such proceeding, which require fresh action. By this finding alone, in no way prevents the appellant the right to file any other actions, and let alone the previous action continues and opened to the applicant to apply for consolidation, if he so wants. This will be in line with what the counsel has shown to take, if leave to amend is refused, by his submission of the 14^th December 2000. However, on refusal to leave to amend, he now seeks leave to appeal. The grounds he relied upon in summary were; the decision was wrong in fact and in law and, question of law, the expeditious administration of justice and the accordance of double hearing of the same subject matter.

Right of application is govern by s. 21 of the Court of Appeal Rules, which y give right for leave to appeal interlocutory order rder and setting out the procedure to follow. However, the court exercise of power under s. 21 of the rule is to satisfy whether; there is an arguable point to put before the Appellate Court to be argued; and secondly the applicant will show that the appeal is likely to succeed.

p class="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Whether there is an arguable point to put before the Appellatrt.

Upon my judgment of the 9^thth of February stands to prevent all issues to be heard together. On his advancement, the court finding was simply that, the amended statement of claim included causes of actions for matters arising after the issue of the writ of summons, and are fresh actions, and the court went further on to find that the plaintiff to start fresh actions. The counsel maintains that this finding was wrong in fact and law and should not stand.

Whether the appeal is likely to succeed.

It was my judgment that stands to appeal, and it t that easy for me to say tsay that there is a likelihood that the appellant will succeed. And my judgment remains challengeable.

ass="MsoBoMsoBodyText" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1"> On the finality, I find that, the appellant should be allowed to challengllenge the court findings against his application, and I grant the appellant the leave to appeal.

Dated this 8^th day of October 2001

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Judge