Liu v Shand [2001] VUSC 50; Civil Case 102 of 1997 (17 May 2001)

IN THE SUPREME COURT

OF THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

BETWEEN:

class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> BOB LIU

Plaintiff

AND:

BARRY SHAND

First Defendant

class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> AND:

PORT VILA MUNICIPALITY

Second Defendant

Mr. Hilary Toa for the Plaf

Mr. Mark Hurley for the First Defendant

Mr. John Malcolm for the Second Defendant

ORAL JUDGMENT

Action

Tas a Specially Endorsed Writ of Summons alleging brea breach of statutory conditions imposed by the second defendant on the first defendant.

Nature

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The plaintiff had a common boundary with the first defendant. The plaintiff alleges that the first defendant was approved as a condition by the second defendant for him to build his house 4 meters away from the common boundary. Instead, the first defendant built his house about 10 to 20 centimetres away from their common boundary.

Remedy

As this occurred the plaintiff sues the defendants uisance against the first drst defendant; that the garage be demolished; or be restructured or to be demolished and to be erected 4 meters away from their common boundary, and/or damages against the two defendants.

Issues

The defendant did not deny there was four meters conditions imposed by the seconsecond defendant for the first defendant to build his three-bed room house 4 meters away from the common boundary. However, Hurley advances that there was an amendment made on the 26^th March 1994 for the inclusion of the garage. The garage was then built 20 centimetres away from the common boundary.

Evidence

The plff gave evidence and called three other witnesses. Ats. At the close of the plaintiff’s case the two counsels, one for the first defendant and the other for the second defendant applied that they were prepared to call their witnesses. However, applied stating that there is no evidence at this stage from the plaintiff to prove that the first defendant was in breached of any imposed conditions and for the court to rule.

No case application

In a no case application, in civil matters there is no requirequirement of no case application but rather an application can be made to the court at the close of the plaintiff case to tell the court that there is no evidence for the court to continue and this is proper application. As in civil cases both parties are required to give evidence and at the close of the defence case to hear submissions and for decision. In a no case submission the Court can treat such application as the defendant wishing not to call evidence or in another way they will not be calling any evidence and close their case and let them be heard on submission.

class="MsoBoMsoBodyText2" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1"> In this matter the counsels advances that they were prepared to call tall their witnesses but at the close of the plaintiff’s case there is no evidence to prove that the defendant breached any condition and asked the Court to rule. In the event that I do accept their application then the matter can be dismissed and if not then I will proceed to hear their witnesses. To me this was not really a favourable procedure, however, if the Court is of the view on assessment at the close of the plaintiff’s evidence that there is no evidence to prove the claim then such application can be accepted and the case can be dismissed as it will serves no purpose to continue with the matter.

p class="MsoBoMsoBodyText2" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1"> In view of what I have arrived at above, I find no evidence at the close of the plaintiff’s case that the defendants were in breach of any condition and should be dismissed, as it will serve no good purpose to continue with the hearing. With these to say I then state my reasons as follows:-

This Court finds that there was a condition imposed on the first defendant in 1992 to build his three bedroom house four metres out from the common boundary.

In this situation the first defendant built or started to build his garage about 20 centimetres from their common boundaries and the garage was not part of the condition for building apart from building the three bedroom house. What we have in dispute is that the building was built 20 centimetres from the common boundary. However, this was the garage and not the house itself. The plaintiff admitted in cross-examination that the house was about 2.8 meters away from the common boundary but did not measure, but only estimated the distance. With this explanation from the plaintiff I will accept that there was a garage built about 20 centimetres from their common boundary and the house was about 2.8 meters or more from the common boundary.

class="MsoBoMsoBodyText2" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1"> In Cecil’s evidence he did not see that there were two houses, howeverwever in William Frank’s evidence, the plan shows that there were no space between the garage and house, which I accept as two separate houses built jointly and that was the garage and the three bed room house built jointly.

class="MsoBoMsoBodyText2" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1"> In Xepoue’s evidence, he explained that the condition of 4 meters from from the boundary was still in place. However, that was only for the building of the house but did not apply to the garage. On inspection of the site in the presence of both the plaintiff and the first defendant, and on talking with the plaintiff and the defendant, and in inspecting the plan itself, he informed both of them that the first defendant built in accordance with the plan where his garage was built with fire wall, that is with no window to the common boundary. He explained that this was allowed to small size area. In the first defendant’s situation his area is a small size and therefore he can build fire walls as close as possible to the common boundaries.

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On thle of the evidence of the plaintiff case there were iere inconsistency as to the conditions imposed. The plaintiff in his evidence maintained that the first defendant should build his house 4 meters away from the common boundary, while Xepoue one of his witness who was the town planner of the second defendant at that time, maintains that even though the condition was still enforceable for building the three bedroom house four meters from the common boundary the building of the garage about 20 centimetres from the common boundary was done in accordance with the approved plan. With these evidence the witnesses agreed that the building was 20 cm away from the common boundary and in the plaintiff's evidence this was in breach of the imposed condition of four meters away from the common boundary, while Xepoue agrees to that condition and did not prevent the first defendant to build his garage from the common boundary as long as it has a fire wall. With these evidence one thing is certain that the three bed room house was built 2.8 meters or more, as estimated, from the common boundary and the garage was built 20cm from the common boundary and the two houses were joint to look as one building only. With these, than all these were done in accordance with the plan. And therefore, there is no use for this Court to proceed on and accept the application from both counsels. In accepting such application I dismiss the case with costs to the defendants to be taxed if not agreed.

Dated at Port Vila, this 17th day of May 2001.

R. MARUM MBE

JUDGE