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Meyer v Whitesands Resort & Country Club [2008] VUSC 60; Civil Case 54 of 2006 (1 August 2008)

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

Civil Case No. 54 of 2006

BETWEEN:

MERELYN MEYER, DUDI & DWIPA WINARTO, STEVEN KORMAS, MARY ANNE WALKELY & ZARIFUS ZARIFOPOLOS, LISANDROS & NIKI KARANICOLOS, MERTHY POEDIJONE of Australia
Claimants

AND:

WHITESANDS RESORT & COUNTRY CLUB
First Defendant

AND:

DOMINIQUE DINH
Second Defendant

Coram: Justice C. N. Tuohy

Counsel: No appearance for the Claimants
Mr. Robert Sugden for the Defendants

Date of Hearing: 1 August 2008
Date of Decision: 1 August 2008

ORAL RULING

The defendant has applied for leave to appeal my interlocutory ruling dated 9th June 2008 dismissing the defendant’s application to strike out the claim. Mr. Sugden has explained that his application to strike out was intended to be confined to the claim itself and was not dependent upon acceptance of his client’s argument with regard to the counterclaim. That is not how I perceived the issue presented on the argument on the strike out application. As shown by my ruling I apprehended that Mr. Sugden’s argument was based on acceptance not only of his argument that the claimants were not entitled to terminate the contracts but also his argument that the defendant was thereupon entitled to itself terminate and retain the deposits. Acceptance of both arguments would result in a position where the contracts were at an end and the defendant entitled to keep the deposits. In my ruling I did not consider that that position could be established unarguably at this stage. I did not find it necessary therefore to deal with Mr. Sugden’s argument on the claim itself that the claimants had not lawfully terminated the contract. Acceptance of that argument would leave a position where the contract was still technically on foot (subject to any arguments not yet made relating to any other grounds for termination).

So Mr. Sugden’s position now is that the Court has effectively not dealt with his application on the strike out of the claim alone (apart from Marilyn Meyer’s contracts on which he accepts the ruling for strike out purposes). If Mr. Sugden’s argument on the claim itself is upheld, it will change the whole situation as the parties perceive it and may result in further negotiations which will assist the resolution of the dispute. At least that would reduce the scope of future litigation. Therefore I am persuaded that there is a benefit in terms of use of court resources and speed in resolving the dispute in allowing an appeal against my interlocutory ruling limited to the appeal in the draft notice of appeal: should the claimants’ claim be struck because they had no right to purport to terminate the contracts. On that basis the leave to appeal is granted.

There is also an application by the first defendant to join a third party namely Michael Theophilos. This is opposed. The jurisdiction to grant leave to join a third party is set out in rule 3.7. It states that if a defendant claims contribution indemnity or other remedy against a person not a party to the proceeding the defendant may file and serve a third party notice. In my view, rule 3.7 must read as meaning if the defendant claims a contribution or an indemnity or other remedy in respect of the defendant’s liability to the claimant for the remedies which the claimant is seeking against the defendant. Here the claimant is seeking recovery of deposits on contracts. It is clear from the third party notice that the first defendant is not claiming against the third party in relation to any acts of the third party in connection with the contractual relations between the claimants and the first defendant. Instead the first defendant is seeking to claim against the third party in relation to the third party failing to provide him with documents necessary to defend the claim in breach of agency duty. His claim is on the assumption that the loss of these documents will cause the defendant’s defence to the claimants’ claim to fail. In my view, that is not the type of claim which should found a third party notice. If in fact the defendant loses the claim and the defendant can show that such loss was as a result of his agent’s refusal to provide documents to its principal then he can bring a claim against the proposed third party.

In this case the Court could not even grant the remedy which the first defendant seeks against the third party because the Court would first have to give judgment against the first defendant in order for the cause of action or at least the losses suffered to have arisen. Third party claims are for when the third party’s involvement relates to the liability of the defendant to the claimant on the original claim. This one does not. Furthermore this third party claim has been brought on too late. The proceeding has been on foot now for two years, almost two years since the amended claim anyway was filed. Because the proposed third party is in Australia, joining him would also cause difficulties and delay an already delayed case further. Therefore I refuse leave to join the third party.

In so far as the first defendant has difficulties in obtaining documents there are other remedies available to it such as an application for third party disclosure or a separate claim against the third party.

DATED at Port Vila, this 1st day of August, 2008.

C. N. TUOHY

Judge.