Nicholas v Thies [2004] VUSC 82; Civil Case 116 of 2001 (25 February 2004)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 116 of 2001

BETWEEN:

MICHAEL GEORGE NICHOLAS
First Plaintiff

AND:

DIANA MAY NICHOLAS
Second Plaintiff

AND:

TIMOTHY ROBIN THIES
First Defendant

AND:

LYNNE CHRISTINE ELDER
Second Defendant

&

Civil Case No. 96 of 2001

AND:

TIMOTHY ROBIN THIES & LYNNE CHRISTINE ELDER
Plaintiff

AND:

GEORGE VASARIS & CO
Defendant

Mr. Ozols for Claimants
Mr. Thies in person
Mr. Sugden for Ms. Elder

ORDERS

Civil Case no. 116/2001 involves a claim by the Claimants Mr. and Mrs. Nicholas against the Defendants Mr. Thies and Ms. Elder in relation to a claim for damages for breach of contract in relation to a sale of the resort island of Erakor, near Port Vila

Civil Case no. 96/2001 involves a claim by Mr. Thies and Ms Elder against George Vasaris & Co for the recovery of the deposit paid by the Claimants into the legal firm of George Vasaris & Co in relation to the same contractual arrangement.

In relation to CC116/2001 the Defendants counterclaimed against the Claimants but that counterclaim was dismissed because they failed to comply with an order for payment of security for costs. Once the Defendants' counterclaim was struck out, the Claimants applied to discontinue their action.

Mr. Ozols has acted throughout for the Claimants in CC116/01. Until the morning of the hearing, Mr. Sugden had acted for the First Defendant, Mr. Thies and the Second Defendant Ms. Elder but at the commencement of the hearing, the Court was advised that he no longer acted for Mr. Thies who wished to represent himself, although Mr. Sugden retained instruction for Ms. Elder. Mr. Sugden likewise acted throughout for Mr. Thies and Ms. Elder in CC96/01. George Vasaris & Co did not enter an appearance and had indicated that they did not wish to appear at the hearing and did not seek costs against the Claimants but sought indemnity from Mr. and Mrs. Nicholas against any costs order made. Mr. Thies represented himself in that case also.

Before the argument as to costs was embarked upon the parties sought clarification about the Claimants' application in discontinuing the action under CC116/2001. Mr. Thies objected to the application on the basis that Rule 9.9 of the Civil Procedure Rules No. 49 of 2002 provides as follows: -

"(1) The Claimant may discontinue his or her claim at any time and for any reason.

(2) To discontinue, the claimant must:

(a) file a Notice of Discontinuance in Form 18; and

(b) serve the notice on all other parties

(3) If there are several defendants:

(a) the claimant may discontinue against one or some only; and

(b) the claimant's claim continues in force against the others.

(4) If the claimant discontinues:

(a) the claimant may not revive the claim; and

(b) a defendant's counterclaim continues in force; and

(c) the party against whom the claimant discontinued may apply to the court for costs against the claimant."

Mr. Thies submitted that as the Claimants had never filed a notice of discontinuance but had filed an application for an order that the case be discontinued their procedure was invalid. Mr. Sugden did not join that submission. Mr. Ozols had no submissions to make.

I ruled that the filing of that application for an order that the case be discontinued was tantamount to the Claimant filing a notice of discontinuance. Despite the fact that the application for an order that the case be discontinued was not in form 18, I did not consider that that was significant and I exercised my discretion in ordering that CC116/2001 was discontinued.

Another preliminary point was then raised by Mr. Sugden for Ms. Elder and by Mr. Thies who submitted that I should step aside and disqualify myself from hearing and ruling upon costs in each of the cases because I had delivered a decision in [2003] VUSC 3; CC73/02 Troy & Jasmine Neel v Blake & ors on 3 October 2003 which dealt with the subsequent sale of the Erakor resort to the Neels by the Nicholases during which I had made credibility findings on the Claimants in CC116/01 and had made other factual findings that Mr. Thies and Ms Elder considered could influence my decision on costs in the present cases.

Mr. Ozols submitted that Mr. Thies and Ms. Elder were game playing, that there were different issues involved, that was not a moral issue and that red herrings were being raised and that the issues as to costs in these cases were different.

It was my view that I should disqualify myself from hearing the question of costs even at such a late stage because it was clear that justice must not only be done but must be seen to be done and a reasonable, impartial observer could reach the conclusion that my ruling on costs had been influenced by my findings in the case of Neel v Blake. Necessarily the issues involved in that trial somewhat touched upon the issues involved in the present actions involving the earlier deposit for the purchase of the resort by Mr. Thies and Ms. Elder and that circumstance was dealt with in part in the judgment and was part of the findings of fact together with what had occurred as a result of removing a caution from the leasehold title of the resort. I must confess that I myself had experienced some unease at being involved in the determination when I read the detailed submissions filed by counsel.

Had there been no alternative judge available to deal with the question of costs and had I necessarily have had to continue with it I would have done so however, there is an alternative judge available to deal with the costs issue who has no knowledge or involvement with any of the actions.

In passing I note that the learned Chief Justice had earlier been involved in CC96/2001 being the action between Mr. Thies and Ms. Elder and George Vasaris & Co and had made certain orders which has resulted in the action under CC116/2001 being commenced and had also dealt with an earlier trial between the parties when orders for specific performance were sought at an earlier stage. It is equally inappropriate, in my view, for the Chief Justice to be involved in the question of setting costs in these cases and for those reasons it became clear that Justice Bulu was the appropriate judicial officer to deal with the question in the face of opposition to my continuing to do so from two of the parties

Accordingly, I decided that I must disqualify myself from the determination and pass the matter onto Justice Bulu for determination in due course. The first step that the learned justice will need to take is to set a conference when the question of a hearing date can be fixed at a date and time suitable to him and the parties.

Dated AT PORT VILA, this 25th day of February 2004

BY THE COURT

P. I. TRESTON
Judge