Colmar v Rose Vanuatu Ltd [2009] VUSC 38; Civil Case 32 of 2008 (22 May 2009)

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

Civil Case No. 32 of 2008

BETWEEN:

PETER COLMAR
Claimant

AND:

ROSE VANUATU LIMITED
First Defendant

AND:

DINH VAN THAN
Second Defendant

AND:

MINISTER OF LANDS
Third Defendant

AND:

JOHN TARIMOLBARAV, SAMSON LIVO, JOSEPH SAVA, ROY MOLIVALELE, JOSPH WARI AND BEN MATA
Fourth Defendant

AND:

ALJAN (VANUATU) LIMITED
Fifth Defendant

Coram: Justice N. R. DAWSON

Date of Hearing: 22nd May, 2009

Date of Decision: 22nd May, 2009

Counsel: Claimant: Mr. N. Morrison for Claimant
First Defendant: No appearance
Second Defendant: " "
Third Defendant: Mr. J. Ngwele
Fourth Defendant: Mr. J. Malcolm (some of them)
Fifth Defendant: Mr. J. Ozols

ORAL RULING

1. An Urgent Application has been brought by the Fourth and Fifth Defendants in this matter to Strike Out parts of the Supreme Court Claim as against the Third, Fourth and Fifth Defendants.
   
2. The case is principally lead by the Fifth Defendant and Third and Fourth Defendants simply rely upon the submissions of the Fifth Defendant. The Application to Strike Out the Claim is opposed by the Claimant.
   
3. The essence of the Application by the Fifth Defendant to have the Claim struck out as against the Fifth Defendant in particular is that the Fifth Defendant submits that it has an indefeasible title. A lease was registered in favour of the Fifth Defendant on 14th August 2007, that lease since been renegotiated to change it from an agricultural type lease to a commercial lease and a new commercial lease has been entered into by the Fifth Defendant with the custom owners of the land. On this basis the Fifth Defendant submits that there can be no claim against it. The Claimant has submitted that the registration of the initial lease in favour of the Fifth Defendant took place without the Claimant being advised by the Third Defendant of the application to register. The letter to the Claimant with regard the caution the Claimant had registered against the land was not posted until 6th September 2007 when in fact the registration of the lease in favour of the Fifth Defendant took place on 14th August 2007. Quite clearly the Claimant had no opportunity to make or take any action to defend the rights claimed and protected by that caution. In addition the Claimant alleges in paragraph 25 of the Supreme Court Claim that the Fifth Defendant has knowingly acted in concert with the First, Second and Fourth Defendants to endeavour to defeat the Claimants equitable interest in the lease. The claim by the Claimant that the Fifth Defendant has acted knowingly if proved would go some way to countering the Fifth Defendant’s submission of having an indefeasible title to the land. These are matters of evidence and therefore need to go to trial to be heard before the Court can make a decision on these matters. The Application to Strike Out the Claim is therefore dismissed.
   
4. Costs will remain in the cause.
   
5. This matter will now go to a conference on 16th June, 2009. A time for that conference will be advised to counsel by way of a Minute that the Court will issue.
   

Dated at Port Vila, this 22nd day of May, 2009

BY THE COURT

N. R. DAWSON
Judge