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Claymore Ltd v Director of Land Record [2007] VUSC 104; Civil Case 59 of 2007 (12 December 2007)

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

Civil Case No. 59 of 2007

BETWEEN:

CLAYMORE LIMITED
Claimant

AND:

DIRECTOR OF LAND RECORD
First Defendant

AND:

SOPE KALORIB
Second Defendant

AND:

KALRAN LOPARU
Third Defendant

Coram: Justice C.N. Tuohy

Counsels: Mrs. Patterson for Claimant
Ms. Harders for 1st Defendant
No appearance for 2nd Defendant
No appearance for 3rd Defendant

Date of Hearing: 12 December 2007
Date of Decision: 12 December 2007

ORAL JUDGMENT

1. This is a claim by Claymore Ltd for rectification of the register in respect of leasehold title No. 12/0844/050. At this point the rectification sought is merely that the name of the lessor be changed from Kalran Loparu to Sope Kalorib as representative of family Sope Kalmatalu.

2. The history of the matter is set out in a Minute which I made when the proceeding was first filed. The Minute is dated 26th April 2007. The old lease 12/0844/050 showed Kalran Loparu as the lessor and Claymore Ltd had become registered as proprietor of the leasehold title.

3. A surrender of the leasehold title was signed as part of a subdivision into 12 separate lots each of which were to have a new registered lease issued. Kalran Loparu signed the consent to the surrender of the lease. 10 new leasehold titles were issued but the last two which were intended to be issued under numbers 12/0844/112 and 12/0844/113 were not in fact registered. The reason for that is because the Director of Land Records and everyone else became aware that in the meantime Sope Kalorib had been declared the custom owner of the land contained within those proposed new leasehold titles ending 112 and 113. The Director therefore quite properly in my view declined to issue new titles showing Kalran Loparu as the lessor under the new titles.

4. However, it appeared from a letter of advice written to the Director by the State Law Office in March of this year, that the Director was going to go further and perhaps issue new leases showing Sope Kalorib as the lessor to persons other than Claymore Ltd. It was thought that Claymore Ltd could fortuitously lose its indefeasible title as a result of the change of the lessor coinciding with a subdivision. In my Minute of 26 April I indicated that I did not think that that could happen under the Land Leases Act and, having considered the matter further from time to time over the months since, I am confirmed in that view. My view is that the surrender could not operate in isolation from the grant of new leases over the same land to Claymore Ltd. In any event, interim orders have prevented any such things happening and we have now reached the position where Claymore Ltd wants nothing more that the change of the lessor’s name under the old lease, from Kalran Loparu to Sope Kalorib.

4. Kalran Loparu has been served with the proceeding. He has taken no steps, he has been served with notice of the trial, he has not appeared at the trial. Mr. Kalorib has appeared now, just at this moment, as I am giving my judgment. However as I indicated to his brother who was here on time, I am not proposing to make any order which would be against his interest. Rather the order I am intending to make is one which substitutes him as the lessor under the old title, which remains in existence in relation to the land which was to be covered by new leases ending 112 and 113. Mr. Kalorib will therefore be in control as far as that land and that lease is concerned or when I say in control, he will have the rights of a lessor in relation to the old lease which continues in force in relation to those two pieces of land. It will be over to him and Claymore Ltd whether they agree on new leases being issued in respect of that land.

5. Obviously as I have indicated the orders I intend to make, I am satisfied that there has been a mistake in relation to the register for old lease 12/0844/050. That mistake was that the lessor was included as Kalran Loparu whereas the true custom owner as declared now is Sope Kalorib as representative of family Sope Kalmatalu. And in my view the register must be rectified to reflect that position.

6. Accordingly, the formal Orders of the Court will be as follows:

i) a declaration that Lease Register 12/0844/050 remains in force except in respect of that part of the land described in it which is the subject of Lease Registers 12/0844/102, 12/0844/103, 12/0844/104, 12/0844/105, 12/0844/106, 12/0844/107, 2/0844/108, 12/0844/109, 12/0844/110 and 12/0844/111.

ii) Lease Register 12/0844/050 shall be amended by deleting the name of Kalran Loparu as lessor and replacing it with the name of "Sope Kalorib as representative of Family Sope Kalmatalu".

iii) A sealed copy of this Order shall be kept in the property section of Lease Register 12/0844/050

iv) The Orders of this Court dated 18 May 2007 are discharged. They are no longer necessary.

7. In relation to costs, Mrs. Patterson applied for costs against the Director of Land Records and the Director of Land Records applied for costs against Claymore Ltd. I have come to a very firm conclusion that neither application has any merit and that costs should lie where they fall in this case. Mrs. Patterson’s argument seemed to be largely that the Director of Land Records should have made the amendment himself so that this case was unnecessary altogether. However, that overlooks the fact that at the beginning of this case, the Claimant sought not simply an order that Sope Kalorib be named as lessor in the old lease. The original claim sought an order that the Director of Land Records register two leases of the land under 112 and 113, those being two leases which had been signed by Kalran Loparu and which the Director of Land Records was quite right in not registering because he was aware by then that Sope Kalorib was the custom owner of that land.

8. This claim was necessary because of what had happened and it was necessary in my view that this Court made orders. It was discussed at one stage that the way out of this, once it become clear well into the proceedings, might be by the Director of Land Records exercising the discretion that he has under section 99 to amend the register. The Director took what was the cautious approach from his point of view which was to leave it to be done by the Supreme Court under section 100. I cannot criticize that decision. It was a safe decision, this matter had considerable complexity, proceedings had already been issued and were well down the track. It was a quite appropriate course for him to leave it to the Court to bring it to a conclusion as it has today.

9. The Director has not opposed the making of the Order today and has not really been in a opposition to the direction of the proceedings for some months, a contrast to his earlier position. Therefore I think that there is no basis for any order against the Director of Land Records. The Director of Land Records has not been an unsuccessful party in any sense. This is a proceeding which had to be brought to fix the register and ultimately it was not opposed.

10. Likewise my view is that the Director of Land Record’s argument for costs is without merit. There is no doubt from the correspondence which was exhibited to the Court when the claim was originally filed that the Director had received advice (and there were indications that he might act on it) that he could in effect cancel entirely the leasehold title of Claymore Ltd in respect to the land covered by new titles to be issued 112 and 113. The Claimant was forced to take action urgently. And obtained eventually an injunction which was initially opposed by the Director. Both parties really took initial stands in this case which both have had to resile from. Claymore wanted the two new leases with Kalran Loparu as lessor issued, the Director of Land Records did not want to recognize initially the continuing existence of the Claimant’s rights under the balance of leasehold title ending 050.

11. So it is not as if the Director has been successful in any way in this case and nor has Claymore been unsuccessful. There is no basis for the Director to obtain costs against Claymore whatsoever. The Director has not been successful in any part of the Claim. It is true that once Sope Kalorib was brought in, which would have happened in any event, everyone has been running along the same track. In a sense this has been a case which had to happen and which eventually no one opposed. I see no basis for any party to be awarded costs against another party. Costs will lie where they fall.

Dated at Port Vila, this 12th day of December, 2007

BY THE COURT

C.N. TUOHY
Judge