IN THE COURT OF APPEAL
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
Appeal Case No. 15 of 200an>
BETWEEN:
MR. RICHARD SCHUELER
Appellant
AND:
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MR. WAYA TENENE
Respondent
Coram: Hon. Justice John von
Doussa
Hon. Justice Daniel Fatiaki
Hon. Justice Roger J. Coventry
Hearing Date: 26th October
20span>
Counsels: Mr. John Malcolm for
the Appellant
Mr. Hilary Toa for the
Respondent
CONSENT ORDERS
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By consent the Court makes the
following declarations, orders and dire directions:-
1. &bsp; ;
p Appeal allowellowed;
2. &  Tpan>The Orde Order made on 9th April 2001 is set aside and the
matter is remitted to be heard bea dift jud the Supreme
Court, subject to the following
terms.
p>
3.
Declaration that the alleged agreement between the parties to build a
tourist resort at No. 2 Lagoon with bungalows for tourists
is too uncertain to ctute ding nforc agreement.
/p>
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4.&n;"> &
Declaration that the parties executed Commercial Lease Title No.
12/0913/022 under the mutual mistake that the execution of
the lease was
part of a wider enforceable agreement that inclonstrn of a of a
tour tourist resort of undefined
proportion on the leasehold land.
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5. &bsp; ;
s
6. &nbs;
Direct thellanellant within 28 days to give to the
Respondent�s solicitor the following particulars in so far as he relies on
tor thpose s comtion :-
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(a) &bsp; ;&nbssp;&nbp; &nsp; ;
p Purticulars oars of moneys expended on improvements and developments of
the land since the registration of the lease.
">
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pan style="font:7.0pt "Times New Roman""> &nsp; & p;&nbp; &nsp; &
p; A concise sume summary of each improvement or development he has effected
on the land since registration of the lease.
p clasoNorstyle="margin-l36.0pt; margin-top: 1; marginargin-bott-bottom: 1om: 1">
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(c) &nsp; & p;&nbp; &nsp; &
p; A statement oent of the compensation now claimed after giving specified
credit for his enjoyment ofland mprov sincistraof
he lease.ease.
(d) &nnsp;&&nsp;;&nspp;&nssp;
sp;
The valuation evidence (if any) he intends to rely upon in support of
his compensation claim.
: 1">
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7. &nsp; &
8.
Within 28 dayr of receiving the information specified in paragraph 6
above the Respondent is to indicate whether he accepts
the Appellant�s
csatioim, a not ate wompensation he is p is preparrepared toed to
pay pay and what parts of the
information supplied by the Appellant that he
disputes. Within the same 28 days period the Respondent is to supply the
Appellant�s solicitor with whatever valuation evidence he intends to rely on
in support of his response to the Appellant�s
claim.
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9.  &nbssp;
If agreement is not reached between the parties within 14 days of the
Respondent supplying the information specified in paph
8her p
is at liberty to arrange a directirections hearing before a judge of the Suhe Supremepreme
Court for the assessment
of the advance payment of rent to be refunded and
the equitable compensation to be paid in exchange for the rescission of
lease.
10.
Ipan>If agrt ient is reached between the parties the following terms are
to apply:-
(a)
>
(bn style="font:7.0pt "Times New Roman""> &nbs;
span>esp Respondents&nbss shall havenths within whic which to pay the
agreed
refund of rent and compensation to the Appellant.
&nb"> &nnbsp;
Upon paon payment, the Appellant at his expense shall deliver a surrender
of the lease to the Respondent.
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&n;"> &
Until the sure surrender the Appellant shall have the right to continue to
occupy the said leasehold land as if the lease were
valid and in full force
and effect.
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(e) ;
pan>All outl outgoingsoings on the leasehold land to be adjusted to the date of
settlement when the surrender is deli.
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(f) &
Ipan>If the agreed refund of advance rent and compensation is not paid
within 6 months of the agrt being recorded in writing
(or within such
other time as is allowed by Order of the the trial judge) paragraphs 4 � 10 (e)
of this Consent Order
shall cease to operate or to have effect. The action
will stand dismissed and the said lease will continue to operate according
to its written terms.
11.
I event tent that the dispute between the parties is resolved by
agreement within the timeframe envisaged in paragraphs 4 �
10 above each
party to bear his own costs. In the event tgreement as to refund of
of
advance rent and compensation
is reached and the Respondent then defaults in
payment under Clause 10, Order that the Respondent pay the Appellant�s costs
of the proceedings (including the costs of the trial before Marum J. and
this appeal) fixed at a gross sum of VT550.000.
Dated at Port Vila, this 26th
dayctober 2001.
BY THE COURT
Hon. John W. von Doussa J.
