Cyclamen Ltd v Port Vila Municipal Council [2005] VUSC 150; CC 043 2004 (2 September 2005)

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

Civil Case No. 43 of 2004.

BETWEEN:

CYCLAMEN LIMITED
Claimant

AND:

THE PORT VILA MUNICIPAL COUNCIL
First Defendant

AND:

THE MINISTER OF LANDS
Second Defendant

AND:

THE ATTORNEY GENERAL
Third Defendant

Coram: Justice Ham Bulu

Counsels: Mr Willie Daniel for the Claimants.
Mr. Silas Hakwa for the 1st Defendant.
Mr. John Stephens for the 2nd and 3rd Defendants

Date of Hearing: 22 April and 30 June 2005
Date of Judgment: 2 September 2005

DECISION ON APPLICATION BY CLAIMANT DATED 22 MARCH 2005

INTRODUCTION

1. On 9^th February 2005 this Court issued its decision on another application by the Claimant who sought orders of the Court to require the First Defendant to permit the Claimant to continue development and operate its restaurant and business pending the determination of the claim. The Court refused that application but made other orders that, inter alia, required the -
   

“1. First Defendant to advise the Claimant in writing within 7 days –

1. of the format further information it requires pursuant to its request of 22 December 2003 is to be in;
   
2. the size of such information;
   

100. the detail of such information to enable the First Defendant to make a decision on the Claimant’s application for an extension to its building permit.”
     

APPLICATION

2. On 22 March 2005 the Claimant lodged another application seeking orders that:
   

“1. The First Defendant has failed to comply with Order A.1 of the Court Orders of 9^th February 2005.

2. The Claimant to be given permission by the First Defendant to the extension of time for a further 24 months for development application No.022/01.”
   
3. The grounds advanced for the application can be summarized as follows.
   
4. The First Defendant has failed to comply with Order A1 of the Court Orders of 9^th February 2005. That order required the First Defendant to advise the Claimant as to the exact format, size and detail of the information it needed to enable it to make a decision on the Claimant’s application for an extension of its building permit. The First Defendant has instead, wrote to the Claimant to simply say that it needed information which were earlier outlined in their letter of 22 December 2003. Further that the letter failed to advise the Claimant what are the short falls and or defects in the Claimant’s first submission (in response to the letter of 22 December 2003).
   
5. The Claimant has responded providing information pursuant to the First Defendants’ letter of 22 December 2003 which required further information. It is for the First Defendant to tell the Claimant what exactly is not yet provided and or if information provided are not adequate and or insufficient and what needed to be done.
   
6. The Claimant has written to the First Defendant through its legal counsel to comply with the Court order of 9 February 2005 but there was no respond.
   
7. The First Defendant through its officers have agreed on two previous occasion before to extend the Claimant’s building permit. (See their letter dated 18/12/04 and as per meeting with the Mayor and Madlene Tom on 09/03/04.
   
8. Section 7(4) of the Town Planning Act [CAP. 193] states -
   

“The Council may, on application, extend the time of permission under subsection (2) and (3) at its discretion.”

9. Subsection 12 applies in this case. It states -
   

“Any permission granted under this section shall lapse on the expiration of 24 months from the date of its grant, or, where permission has been granted following an appeal, the date of determination of such appeal, unless the permitted development has been completed to the satisfaction of the council.”

10. The First Defendants’ discretion to extend the Claimants building permit under section 7(4) is restricted to the approval of 08/02/01 (date of grant of original permission).
    

RESPONSE BY FIRST DEFENDANT

11. The First Defendant submitted that it has complied with Order A.1 of the Orders of the Court of 9^th February, 2005.
    
12. The First Defendant says that on 16 February 2005 it wrote to the Claimant and requested the Claimant “to provide all the details, plans, specifications or information in compliance with A.1 of the Orders of 9^th February, 2005. The letter states –
    

“(a) The Council now requires that you provide all the information and details which are set out in our letter dated 22 December 2003.

(b) The information or details which you submitted together with your letter dated 5 January 2004 are not complete, inadequate and in some instances do not include proper technical and engineering input or plans to support the same.”

13. The First Defendant goes on to say that the application by the Claimant is “vexatious, trivial and/or amounts to an abuse of the due process of law.”
    
14. Further that the Claimant is wrongfully purporting to seek by way of interlocutory orders determination by the Court which would have the effect of disposing of issues in the Claimants substantive claim.
    
15. The First Defendant goes on to say that -
    
    • (a) the Claimant is wrongfully purporting to raise issues which are clearly res judicata. The proper way to do so is to appeal.
      
    • (b) The Claimant has wrongfully purported to draw his own conclusion on matters which are neither admitted nor conceded.
      
    • (c) The Claimant has misconstrued the decision which the Court made on 9 February, 2005.
      
16. That the Claimant has no or any reasonable cause of action against the First Defendant.
    
17. The Claimant has no valid permit.
    
18. The First Defendant claims an order of this Court to dismiss the Claimants Application in its entirety. Also seeks costs of and incidental to the Application.
    

RESPONSE BY SECOND & THIRD DEFENDANT

19. Mr. Stephens on behalf of the Second and Third Defendants made submissions to the following effect.
    
20. Firstly, that their concern is the lease, not the building permit. They object to the application by the Claimant as the substantive issue concerning lease is still outstanding. That will require full hearing. If the Claimants are permitted to develop the land, and at the end of the case, the Court finds that the land remains residential, then that will create more problems. At all materials times the Claimants had a residential lease.
    
21. The application is premature and should be dismissed in its entirety.
    

ISSUES

22. Issues arising in this application for determination are as follows. Firstly, whether the Defendant has failed to comply with order A.1 of the Orders of the Court of 9^th February, 2005. Secondly, whether the Claimant has wrongfully raised issues which are clearly res judicata.
    

DISCUSSION

First Issue - Has the First Defendant failed to comply with Order A.1 of the Orders of this Court dated 9 February 2005?

23. The relevant orders of 9^th February are set out fully below -
    

“1. First Defendant to advise the Claimant in writing within 7 days -

1. of the format further information it requires pursuant to its request of 22^nd December 2003 is to be in;
   
2. the size of such information;
   

100. the details of such information to enable the First Defendant to make a decision on the Claimant’s application for an extension to its building permit.”
     

24. Compliance with that order will make it clear to the Claimant what is lacking or short falls in the information supplied on 5 January 2004 by Claimant to the First Defendant in response to the First Defendants’ letter of 22 December 2003. When the Claimant knows the short falls, then it is in a position to respond accordingly by supplying the further relevant information.
    
25. Whether the First Defendant approves the extension of the Claimant’s building permit is a matter for the First Defendant. The Claimant needs to know what is wrong or what is lacking in the information supplied on 5 January 2004.
    
26. Such further information comes to light in the sworn statement of Stanley John dated 22 April 2005. Paragraph 14 shows, for the first time, what is lacking with information supplied by the Claimant to the First Defendant on 5 January 2004. These were not conveyed to the Claimant previously.
    
27. The essence of Order A.1 of the Orders of this Court dated 9 February 2005 is this. That the First Defendant tells the Claimant what is that further information it requires from the Claimant. The First Defendants’ letter of 16 February 2005 fails to do that.
    
28. It is my view that the First Defendant has failed to do that.
    

Second Issue - Are the issues raised by the Claimant res judicata?

29. It is important at the outset to see what those issues are.
    
30. The main issue the Claimant has raised is that the First Defendant has failed to comply with Order A.1 of the Orders of 9 February 2005. Is that a matter that is res judiata? I do not think so.
    
31. The Claimant in the current application is also asking the Court to, by Order to require the First Defendant to grant the approval of the extension of the building permit.
    
32. Now, that is a matter that has been raised in another application before this Court. The Court did not grant the orders sought then. This is a matter that is res judicata in my view.
    
33. Further the grant or extension of the building permit is an issue raised in the substantive claim and that would require full hearing.
    

CONCLUSION

34. For reasons stated, I find that the First Defendant has failed to comply with the Orders of the Court dated 9 February 2005. However, I am also of the view that the issue of the granting or extension of the building permit is raised in the substantive claim, and is yet to be determined.
    
35. Further, that this is a matter that has also been raised in another application before this Court. In that application, the Applicant had sought an order of this Court to require the First Defendant to permit it to continue to build on the property. The Court had refused to make such orders.
    
36. Even though, I have found that the First Defendant has failed to comply with the orders of the Court of 9 February 2004, the development concerned on the property is a commercial development. It is that development or an aspect of it that the First Defendant has sought further information from the Applicant on. One of the orders of the Court granted pursuant to that earlier application dated 9 February 2005 prohibits the Applicant from operating its business pending the determination of the Judicial Review.
    
37. I fail to see how the orders being sought by the applicant can be granted.
    

ORDERS

The formal orders of the Court are:-

1. Application by the Claimant is refused.
   
2. Each party to meet its own costs.
   
3. Inspections of each party’s documents in the substantive hearing to be made within 14 days.
   
4. Trial preparation conference to be at 11.00 a.m. on 23 September 2005.
   
5. Hearing to commence at 9.00am on 1 December 2005 and to run for two days.
   

DATED at Port Vila, this 2^nd day of September, 2005.

BY THE COURT

H. BULU
Judge.