|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
[Report an error]
[F.A.Q.]
Supreme Court of Vanuatu |
[Recent Decisions] [Noteup] [Download] [Help]
IN
THE SUPREME COURT
OF
THE REPUBLIC OF
VANUATU
(Civil
Jurisdiction)
Civil Case No. 70 of 2007
BETWEEN:
IRIRIKI ISLAND HOLDINGS LIMITED
Claimant
AND:
ASCENSION
LIMITED
Defendant
Coram: Justice
C.N. Tuohy
Counsels: Mr Ozols
for Claimant
Mr Sugden for
Defendant
Date of Ruling: 30 May
2007
Date of Decision: 31 May
2007
RULING
1. The Claimant has applied
for interim relief pending final determination of this proceeding. The primary
order sought is that the
Defendant be restrained
"from interfering in
the Claimant's rights of access and carriage way and other rights previously
used by the Claimant".
2. The
Claimant operates a resort on Iririki Island. Access to the island for its
guests, employees and suppliers is by way of a ferry
from Port Vila. The ferry
terminal on the mainland is situated on "the Mainland Title" and people using
the ferry as access to and
from Port Vila must cross the Mainland Title in order
to reach the road and the town.
3.
Prior to 2001 a company now known as Resorts Limited owned the Iririki Resort on
the island and the Mainland Title. In 2001 it
sold the Iririki Resort to Andrew
Spinks but retained ownership of the Mainland Title. Included in the contract
for sale was clause
4.4 which is at the heart of this proceeding. It is set out
below:
Clause 4.4:
4.4 Access
The Vendor is the registered proprietor of the Mainland Title as defined herein which Title is not included in the Total Assets sold to the Purchaser pursuant to this contract. Nevertheless, the Vendor acknowledges the critical importance to any operator of the Business of a right of carriage and access through the Mainland Title for the purpose of access by guests of the Business to and from Iririki Island and the delivery of supplies and other items used in the Business.
The Vendor undertakes and agrees that it is an important pre-condition to the Purchaser's willingness to complete the purchase of the Business and the total Assets, that its continued rights of carriage and access over the Mainland Title are maintained, not withstanding any subsequent sale or development of the Mainland Title, at a minimum, so as to ensure:
(a) continued adequate access for buses and motor vehicles to drop off and pick up guests at and from what is currently known as the Iririki Wharf;
(b) reasonable signage space available to the Purchaser as agreed;
(c) continued adequate access to permit delivery to the Iririki Wharf of all supplies to the Business and including but not limited to all fuel and gas requirements of the Business
provided that all or any cost of utilities in provision of such access and space shall be met by the Purchaser on a pro rata basis in accordance with their general use.
The Vendor covenants and undertakes to accommodate and in due course once any development plans for the Mainland Title are finalised which provide for a fixed and permanent right of carriage for the Purchaser and if deemed necessary by the parties to better secure the position for both taking into account the intent of this Clause, document by way of easement such minimum requirements of the Purchaser and in furtherance thereof the Vendor acknowledges that the Purchaser may lodge a Caution over the Mainland Title to protect the benefit of such right of carriage over the Mainland Title and the rights granted to it under this Clause and the Vendor further undertakes to grant to the Purchaser a right-of-first refusal in respect of any proposed sale of the Mainland Title, such that the Purchaser shall be entitled to match any offer made for the purchase of the Mainland Title and to proceed to the acquisition of the Mainland Title on terms no less favourable than those offered to the Vendor by any such party purchaser.
The responsibility and cost for the upkeep of the access area is entirely the Purchaser's obligation save and except where the Vendor alters the agreed access route at which time the Vendor is responsible for ensuring prior to any development that the new access is both of a size for Direct Vehicle access and constructed to the same standard currently maintained at that time by the Purchaser.
4.
Title to the Iririki Island Resort was taken by the Claimant. Mr. Spinks, who is
now deceased, was a principal of the Claimant.
A caution was registered in Mr.
Spink's personal name against the Mainland Title to protect the interest given
by Clause 4.4.
5. In 2005 the
Defendant purchased the Mainland Title. After the purchase was settled, Mr.
Spink's caution was removed by the Director
of Land Records pursuant to section
97 (3) of the Land Leases Act. The Defendant then became registered proprietor
of the Mainland Title unencumbered by any relevant easement or interest in
favour
of the Claimant.
6.
Subsequently, there have been protracted negotiations between the parties
regarding access over the Mainland Title to the resort
but these have not
produced a resolution. The position has now been reached where the Defendant has
prevented access across the Mainland
Title and the Claimant's guests are
accessing the ferry through the lobby of the adjourning Sebel Hotel, which has
some common ownership
relationship with the Claimant. However, the Claimant is
on notice from the owners of the Sebel Hotel that any such access is on
sufferance and will not be permitted to continue much longer as the Sebel Hotel
is itself almost ready to receive
guests.
THE
LAW
7. The proper approach to an
application for interim orders in the nature of an injunction was laid down by
the House of Lords in
American Cyanamid Co v
Ethicon Limited [1975] AC 396. There are
two broad questions which provide the accepted framework:
(i) whether there is a serious question to be tried
(ii) where the balance of convenience lies.
The
balance of convenience can have a very wide ambit but includes factors such as
whether damages would be a satisfactory remedy
and the status quo. At the end
however, the Court must consider in light of those factors where the overall
justice of the case lies.
8. It is
clear from the
American
Cyanamid case itself that establishing
that there is a serious question to be tried is not the same as establishing
that there is "a
probability"
"a prima facie
case" or
"a strong prima facie
case". It is rather a threshold question
about which the Court must first be satisfied. Nevertheless, it is not
sufficient for an applicant
to merely submit that there is a tenable cause of
action from a legal point of view and a conflict of evidence on the
facts.
DISCUSSION
9.
The first issue is whether there is a serious question to be tried. This
requires examination of the nature of the claim and the
evidence in support of
it. The basis of the claim both as pleaded and as argued on this application is
clear and discrete. It is
founded upon section 17
(g)
of the Land Leases Act, which
provides:
OVERIDING INTERESTS
17. Unless the contrary is expressed in the register, the proprietor of a registered lease shall hold such lease subject to such of the following overriding liabilities, rights and interests as may, for the time being, subsist and affect the same, without their being noted on the register-........................
(g) the rights of a person in actual occupation of land save where enquiry is made of such person and the rights are not disclosed;
10.
Section 17 must be read in conjunction with sections 15 and 16, which are also
set out. These sections are at the heart of the
indefeasibility of registered
title which is the primary feature and object of a Torrens system of land
registration such as that
established in Vanuatu by the Land Leases
Act.
RIGHTS OF PROPRIETOR
15. The rights of a proprietor of a registered interest, whether acquired on first registration or subsequently for valuable consideration or by an order of the Court shall be rights not liable to be defeated except as provided in this Act, and shall be held by the proprietor together with all rights, privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject -
(a) to the encumbrances and to the conditions and restrictions shown in the register;
(b) unless the contrary is expressed in the register, to such of the liabilities, rights and interests as are declared by this Act not to require registration and are subsisting:
Provided that nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which he is subject as trustee.
VOLUNTARY TRANSFER
16. Every proprietor who has acquired a registered interest by transfer without valuable consideration, shall hold it subject to any unregistered rights or interests subject to which the transferor held it and subject also to the provisions of any law relating to bankruptcy or the winding up of companies, but save as aforesaid, such transfer shall in all respects have the same effect as a transfer for valuable consideration.
11.
It is important to note that the Claimant does not plead or argue that the
Defendant's title is subject to an unregistered interest
in favour of the
Claimant by virtue of fraud by the Defendant in the sense of knowledge of the
Claimant's interest prior to purchase
or registration. The Land Leases Act does
not contain provisions excepting from indefeasibility the registered title of
persons who acquired it by fraud in the sense
of knowledge of a prior
unregistered interest analogous to Sections 62 and 181 of the Land Transfer Act
(New Zealand) or Sections
68 and 134 of the Transfer of Land Act (Western
Australia).
12. Those latter
provisions were discussed in two cases referred to in the argument,
Bunt v Hallinan
[1985] NZLR 450 and
Bahr Another v Nicolay
and others (unreported High court of
Australia - BC8802595 15 April 1988). In the Land Leases Act of Vanuatu, fraud
and knowledge affecting the title of a registered proprietor are referred to
only in Section 100 which gives the
Court power to rectify the register. In this
case there is no application under Section 100 for rectification of the
register, a
point specifically acknowledged by Mr.
Ozols.
13. In my view, in order to
rely upon section 17(g) a person must show:
(a) that he has a right of occupation of the land;
(b) that he is actually occupying the land pursuant to that right.
That
is clear both from a reading of the words themselves and from the decision of
the Court of Appeal in
William and Ors v
William and AFC (Vanuatu) (Limited) CAC
21 of 2004 4 November 2004. In that case the Court said (at page
14):
"Section 17(g) operates in respect of "rights", that is rights recognised by the law of Vanuatu. A person in actual occupation who is a trespasser will have no "rights" which are protected by the provision."
It
follows that the right relied upon must be a right of occupation rather than
some other right in respect of the
land.
14. Here the Claimant argues
that it has a right of occupation because clause 4.4 permits it to
"occupy"
the land in the sense that it has been using it viz. as access between the road
and the ferry for guests, employees and suppliers,
by constructing a shelter for
passengers, by erecting signs and by parking vehicles on the
land.
15. Clause 4.4 describes the
rights which it protects as
"rights of carriage
and access over the Mainland Title".
These are then more specifically described as
"at a
minimum" rights which will
ensure:
"(a) continued adequate access for buses and motor vehicles to drop off and pick up guests at and from what is currently known as the Iririki Wharf;
(b) Reasonable signage space available to the Purchaser as agreed;
(c) Continued adequate access to permit delivery to the Iririki Wharf of all supplies to the Business and including but not limited to all fuel and gas requirements of the Business".
Further on in the clause, provision is made for a grant of a
more formal document "by way of
easement" which will provide for "a
fixed and permanent right of carriage for the purchaser".
16.
In my view there is a clear distinction between a right of occupation and a
right of way or an easement in respect of land. A
right of occupation is a right
to physically reside on or enjoy the use of the land on a continuous basis. A
right of way or an easement
however, is a different thing. It is a right of
passage through the land not a right to remain on it continuously and to do on
it
whatever one is lawfully able to do on land. An occupant can maintain an
action for trespass against someone who disturbs that occupation.
The grantee of
a right of way or an easement cannot bring an action for trespass but only a
claim in nuisance for substantial interference
with its rights. This difference
is an indication of the distinction which the law maintains between
them.
17. Further, it is clear from section 17 itself that a distinction
is drawn between rights of way and easements as set out in section
17(a) and rights of persons in actual
occupation as set out in section 17(g). It is clear from section 17(a) that
rights of way and easements
are only protected by section 17 if they existed at
the time of first registration. It follows that they are not protected by
section
17 if they were created afterwards, as these ones were.
18. My
view on this point is a clear one. Clause 4.4 does not give a right of
occupation to the Claimant, it gives a right of way
or easement. Whether or not
there is an element of actual occupation by virtue of the erection of a shelter
or the parking of vehicles,
such actual occupation is either pursuant to a right
of way or easement or is taking place outside the limits of clause 4.4 and
therefore,
not pursuant to any right.
19. The signage right
might be in a different category if there was an independent right to erect
signs. That would be a licence not
capable of registration which might fall
within section 15(b) and possibly continue to affect the Mainland Title
depending on whether
or not section 72(2) applied. However, it is clear that the
right to signage space given in clause 4.4 is for the purposes of the
right of
way and ancillary to it, so part of
it.
20. I therefore conclude that
there is no serious question to be tried in this
case.
21. However, in deference to
the evidence and submissions and because of the possibility that the Claimant
may wish to appeal this
ruling, I will express briefly my views on the balance
of convenience.
22. My view is
that they fall heavily on the side of the Claimant. It's resort is on an island
in the harbour and it cannot operate
without proper access to Port Vila. In the
absence of an injunction, the evidence discloses that its choices are
practically limited
to purchasing access from someone else at a very expensive
price or disembarking its guests much further away from the island at
the other
end of the main harbour front or at the main wharf.
23. As I said during the course of the hearing, I consider that the insistence of the Defendant that the Claimant can continue to take its guests through the Sebel Hotel is misconceived. The ownership of the Sebel Hotel and the ownership of the Claimant are not the same, even if there is an element of common ownership. Even if the ownership was exactly the same they are different companies which at any time could be separately disposed of. Neither the Court nor the Claimant has any power to require the owners of the Sebel Hotel to give access to the Claimant's guests through the hotel's lobby. One can entirely understand the resistance of the owners of the Sebel Hotel to continuation of that course of action.
24. As far as the main wharf or harbour front near Rossi's
are concerned, while both may be physically possible, they are both more
exposed
than the existing ferry terminal and would require a far lengthier voyage for
guests. Having to use either for any length
of time would materially damage the
resort's business.
25. On the other hand, I accept that the granting of interim orders would cause financial loss to the Defendant. The land at the present time is bare land but the Defendant could develop it at any time. The existence of an injunction even if it only applied to part of the land, would in practical terms prevent the development of the whole land because the Defendant would not know how much land was permanently available to it for development until the substantive trial. Such delay in development would come at a cost.
26. However, the Claimant has
given a full and proper undertaking as to damages and there is no suggestion
that the Claimant would
be unable to meet its undertaking if called upon. In
other words, if an injunction was granted to the Claimant and it did not
ultimately
establish its claim, the Defendant could be reimbursed in money for
any loses suffered by it but the same is by no means true in
reverse.
27.
Finally I wish to refer to the claim of counsel for the Defendant that the
Claimant is separately disentitled to interim relief
because it has not made
full and frank disclosure or even has deliberately attempted to mislead the
Court. The duty to make full
and frank disclosure arises if an ex parte order is
sought. That is not the case here.
28. The allegation that the Claimant (and necessarily its counsel) has attempted to deliberately mislead the Court is a very serious one and ought not to be made lightly. In this case, the Defendant's counsel asks the Court to reach that conclusion by inference because of the omission of a part of clause 4.4 from the statement of claim, the omission of it entirely from the sworn statements initially filed and related circumstances. I do not draw any such conclusion. One of the inferences which it would be necessary to draw in order to reach the conclusion that there had been a deliberate attempt to mislead, is that the Claimant and its counsel believed Defendant's counsel and the Court would not realise there had been such omissions, even though, it is evident from a careful reading of the claim itself that the whole of the clause was not reproduced.
29. It is a very serious thing to make such an allegation
against a fellow officer of the Court. I reject it. In my view it has been
made
because counsel for the Defendant has become too close to the action, indeed,
according to the sworn statements, even part of
the action. It may be that in a
case like this the roles of a solicitor and a barrister ought to be separated so
that the necessary
degree of objectivity is maintained by the person having the
latter role.
30.
The application for interim orders is refused. The proceeding will be adjourned
to a conference at 3 pm on 13 July 2007.
31. Costs are reserved.
Dated AT PORT VILA on 31 May 2007
BY THE COURT
C.N.
TUOHY
Judge
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback|
Report an error
URL: http://www.paclii.org/vu/cases/VUSC/2007/74.html