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Association Syndicale Libre des Proprietaires Co Lotisseurs du Domaine de Bellevue v Russet [2004] VUSC 65; Civil Case 022 of 2004 (1 August 2004)

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

Civil Case No. 22 of 2004.

BETWEEN:

ASSOCIATION SYNDICALE LIBRE DES PROPRIÉTAIRES CO
LOTISSEURS DU DOMAINE DE BELLEVUE
Claimant

AND:

MR. DAVID RUSSET
First Defendant

AND:

BELLEVUE ESTATE OWNERS
Second Defendant

Mr. Benard on behalf of the claimant
Mr. John Malcolm for the defendants

JUDGMENT

The Claimant is an association of individuals who own properties in the Bellevue Estate, Port Vila and is a charitable association registered under the Charitable Associations Act Cap. 140. Its claim was filed on the 10th of February 2004 and at best can be summarized as follows:-

• The Claimant claimed that the first defendant had sold plots of land and constructed and maintained roads in the Bellevue Estate in breach of the covenant book which applies to all purchasers of land within the Bellevue Estate.

• The Claimant claimed that the first defendant as Chairman of the Bellevue Estate Owners Association has failed to “respect his engagement” to have the Bellevue Estate Owners Association registered as a legal entity.

The first defendant owns properties in the Bellevue Estate and is a director of the Bellevue Estate Ltd, a duly registered company. He is included as a party in his capacity as a director of the Bellevue Estates Ltd. Bellevue Estates Ltd however is not named as a party in the current proceedings.

The Defendants in response to the claim have applied for various orders and they are:-

1. To remove the First and Second Defendants as parties in the proceedings.

2. To strike out parts of the claim and in particular paragraphs 2 (a)-(g), 3, 5, 6 (d) and (e).

3. To require the Claimant to pay security for costs.

4. To name or add the names of the Claimant.

5. To refuse leave for the Claimant to appear by Guy Bernard.

The applications were heard by the Court on the 3rd day of August 2004 and the decision in relation to each application was delivered on 11th August 2004. This judgment contains reasons for the decisions made. I will deal with the applications in the order I have set them out above.

Application 1: For an order to remove the First Defendant and Bellevue Estate Owners as parties.

Counsel on behalf of the First Defendant submitted that in relation to the First Defendant, no cause of action whatsoever is established in the pleadings to warrant him being joined as a party to the proceedings. The First Defendant is the director of Bellevue Estate Ltd and has no contractual relationship with the Claimant in that capacity or as Chairman of the entity named as the Second Defendant. The position of Director or Managing Director of the Bellevue Estates Ltd bestowed on the First Defendant does not in law give rise to a cause of action against him.

The Second Defendant is Bellevue Estate Owners Association an entity that does not exist at law or at all. It is pointless suing a non-existing person as at the end of the day if the decision goes in favour of the Claimant there is no one to enforce the Courts decision against.

Mr. Bernard in his submissions stated that the First Defendant has been made a party to these proceedings in “his capacity as Director of “Bellevue Estate Ltd.” because he has, in that capacity, made decisions, acted and continues to act “on his own and abused his capacity as director”, and he has been made a party so that the Claimant can get damages.

My view is this. The First Defendant is a Managing Director of Bellevue Estates Ltd. Such a position does not in law give rise to a cause of action against the person. For companies an action would lie against the company, not its directors.

The Second Defendant is a party that does not exist. I fail to see the merits of proceeding against a non-existent person, more so an unincorporated body. If it is a mistake and the proper party is in fact Bellevue Estate Ltd, then the proper party must be named. Further more the whole claim must be properly pleaded to inform the defendant of the cause of action and what is the case he must answer. He must not be surprised or ambushed.

Application 2: For an order to strike out parts of the Claim and in particular paragraphs 2 (a)-(g), 3, 5, 6 (d) and (e).

Paragraph 2 (a) to (g) relates to the Bellevue Estates Ltd. It is not named as a party in these proceedings and for reasons mentioned under Application 1 paragraph 2 (a) to (g) of the pleadings is misconstrued and has to go.

Paragraph 3 of the pleading is a puzzle. I find it difficult to make any sense of it. It makes reference to an entity which “has no legal existence” and goes on to state that the First Defendant through the non-legal entity “exercise abusive and illegal powers”. This is extraordinary language to say the least. Having alleged such “abusive and illegal powers” being exercised by the defendant, the pleadings failed to highlight the source of law and any particular reference the statement is based on. What is it designed to achieve. The particulars in paragraph 3 offer no assistance. It is my view that paragraph 3 is vexatious and frivolous. It is vexatious because it is designed to embarrass or influence opinions against the First Defendant. It is an attack on the First Defendant. It is frivolous because it is not a statement of fact.

Paragraph 5 states that the “first defendant is acting as a dictator and refuses permanently to act fairly and in respect of his engagements”. The first defendant submitted that the paragraph is vexatious, frivolous, argumentative and is an embarrassing pleading. If the pleadings are based in contract, the actions of a person are irrelevant. What is relevant and essential to show is whether there has been a breach of the contract. A breach of contract is not pleaded. It is my view that paragraph 5 is vexatious and frivolous and must go.

Paragraph 6(d) states “there is also no doubt that the Association referred to in section 22 of the covenant book 1993 does not exist legally and is de-facto created or imagined”. The first defendant submitted that the paragraph 6(d) is vexatious, frivolous, argumentative and an embarrassing pleading. It is an attack on the Association and it is difficult to make any sense of the sub-paragraph.

Mr. Bernard on behalf of the claimant submitted that paragraph 6 is the fundamental provision and referred the court to annexure “GB7” which contains a copy of the conditions and restrictions on the use of the land sold in Bellevue Estates. It states that the vendor is Bellevue Estates Ltd and provides for purchases of properties within the Bellevue Estate to enter into arrangements with Bellevue Estates Ltd. The document contains various conditions purchasers or owners of properties in that estate must comply with.

My view is this. It is impossible to make any sense of this subparagraph. It must go.

Paragraph 6(e) states “such antagonism is simply unacceptable and is a mockery”. The first defendant submitted that the sub-paragraph is vexatious, frivolous, argumentative and an embarrassing pleading. The sentence does not make any sense at all. Mr. Bernard in response made a general submission about the whole of paragraph 6 as being fundamental to the case of the claimant, but failed to offer any satisfactory explanations for that paragraph. My view is this. Paragraph 6(e) is vexatious and frivolous.

Applications 3 and 4 are basically the same. The first defendant did not press for these paragraphs to be struck out as Mr. Henin, one of the claimants, has made an undertaking to be personally responsible for any costs or damages in the event that the court makes a decision against the claimant.

Application 5 is for an order to refuse leave for the claimant to be represented by Guy Bernard. The first defendant has strongly objected to having Guy Bernard appearing for the Claimant in this proceeding on the following grounds:-

• Guy Bernard is not a party in these proceedings. He does not own a property in the Bellevue Estate. The fact that he has been appointed a syndic or agent of the claimant does not give him the right to appear in Court in this proceeding.

• Guy Bernard is not a solicitor and is not registered as a solicitor or barrister in this jurisdiction. A lot of time is being wasted and costs in this proceeding is rising unnecessarily because he is not a solicitor.

• Guy Bernard has no locus standi in this proceeding.

Mr. Bernard in response submitted that the statute of the Claimant authorizes him to represent the Claimant in any proceedings in court. He referred the Court to section 14.7 which states:-

“The ordinary general assembly...ratifies the appointment of the syndic following the proposal which is submitted at the time of the constitutive assembly and/or later on in all other ordinary or extra ordinary assemblies. It controls the actions conducted before the court by the council and the syndic on behalf of the association.”

The Court was further drawn to section 5 of the “statuts” which states:-

“The syndic is in charge of the legal management of the association and must apply the directives given by the council. He has faculty by mandate of the council to commence any lawsuit on its behalf for all matters concerning the collective interests.”

Mr. Bernard submitted that the association, being a charitable association, does not need to be represented by a solicitor and may appear in court by its duly appointed representative.

My view is this. The law in this area is well established. Associations such as the Claimant and other incorporate and un incorporated entities may have their private statutes, regulations or rules authorizing a person to represent the entity in legal proceedings in the courts of the land. That in itself is fine and it is important to have such provision clearly specifying the function of such a person to be responsible for such matters. However, that provision does not qualify the person to act as a solicitor (unless he is already a solicitor) to have a right of appearance before the higher courts of the land. Guy Bernard is not a solicitor. The second leg Guy Bernard can still appear before this Honourable Court under is if he is a party. Clearly he is not a party. Thirdly, he can still appear for the claimants if he has locus standi. Clearly he does not have locus standi. Mr. Bernard has appeared before this Honourable Court representing the Claimant in the capacity as that of a solicitor. Clearly he is not a solicitor and is not on the role of solicitors in this jurisdiction. Proceedings prior to today clearly show that it is in the best interest of the claimant to obtain the services of a solicitor to properly put its case to this Honourable Court for adjudication. Considering the Courts duties under rule 1.2 of the Civil Procedure Rules it will not be justice to the claimant if the Court does not grant leave applied for by the first defendant. The very poor pleadings in the Claim are just an indication of the need to do justice to the case of the Claimant.

The formal orders of the Court are:-

a) First Defendant, David Russet is removed as a party to this proceeding.

b) Bellevue Estate Owners is removed as a party to this proceeding.

c) Paragraphs 2 (a) – (g), 3, 5, 6 (d) and (e) of the pleadings are struck out.

d) Leave is refused for the Claimant to be represented by Guy Bernard.

Claimant to amend its claim to properly identify the parties, the amended claim to be properly pleaded in line with the Civil Procedure Rules and to be filed and served within 21 days.

e) Costs in favour of the First Defendant to be paid by the Claimant on an indemnity basis, and to be taxed if not agreed.

DATED at Port Vila, this ... day of August 2004.

H. BULU
Judge.