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Picardie Holdings (NH) Ltd v Waegemenn [1980] VULawRp 2; [1980-1994] Van LR 5 (29 October 1980)

[1980-1994] Van LR 5

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 68 of 1980

BETWEEN:

PICARDIE HOLDINGS (N.H.) LIMITED
a company duly incorporated under the British laws of the New Hebrides
and having its registered office at Melitco House, Rue Pasteur, Vila,
and carrying on business as an investment company.
First Plaintiff

AND:

PETER STUART JOHNSTONE
of Melbourne, Australia, Company Director
Second Plaintiff

AND:

SOCIETE CIVILE JEAN RATARD
a societe civile duly registered under French laws and having its head office at Vila
and carrying on business as a property owning company.
Third Plaintiff

AND:

AUGUST ERNEST WAEGEMENN
of 1714 Stockton Street, San Francisco, California 4133 United States of America,
Consulting Civil Engineer and also of Aore, Vanuatu
Defendant

Coram: Cooke C J.

Counsel: Mr P Coombe for Plaintiffs

JUDGMENT

[CONTRACTS - SALE OF LAND - INDEPENDENCE - effect of on
contracts for sale of land]

The Plaintiffs were seeking to enforce an agreement for sale of land made with the Defendant. On the 21st October 1980 an application has been made in chambers by Mr Coombe of Messrs. Turner Hopkins Coombe and Partners Barristers & Solicitors on behalf of the first, second and third Plaintiff that the amended defence and counterclaim with the exception of paragraph 1 of the amended defence be struck out under the inherent jurisdiction of the Court on the ground:

1. that the amended defence discloses no reasonable answer of defence;
2. that the counterclaim discloses no reasonable cause of action against the Plaintiff;
3. that the amended defence and counterclaim are frivolous and vexatious; and
4. that the amended defence and counterclaim are an abuse of the process of the Court.

Mr Coombe submitted that he relied on Order 27 Rule 4 Civil Procedure Rules and the inherent jurisdiction of the Court to have the amended defence and counterclaim struck out as in his application and as permitted under Order 27 Rule 4 aforesaid.

The Defendant has not denied any of the claims set out in the various paragraphs of the statement of claim except paragraph 8 and accordingly in my opinion they are admitted. His answer in the amended defence is that the third Plaintiff no longer has ownership of the property described in the schedule to the statement of claim (which the Plaintiffs had contracted to sell to the Defendant), due to the provisions of the Constitution of the Republic of Vanuatu, and of the Land Reform Regulation 1980, and consequently the basis of the said agreement for sale of the 20th February (made prior to Independence) has been destroyed and the said agreement frustrated.

In my opinion the contract is anything but frustrated and in the agreement between the parties the Defendant at clauses 13 and 14 clearly indicated he was aware of the situation in Vanuatu. The Defendant could have completed the contract as agreed and then dealt with the custom owners as required by everyone else in the country. This is not an impossibility. The Land Reform Regulation 1980 at the date of his application is an invalid Regulation and requires a further Act of Parliament to make it valid. Even, if the Regulation had the force of law when this application was made, it would not affect the situation on way or the other. Hence in my opinion the amended defence discloses no reasonable answer or defence. Also the counterclaim discloses no reasonable cause of action against the Plaintiffs.

Accordingly it is hereby ordered that the Plaintiff be at liberty to enter judgment against the Defendant and that the Defendant's counterclaim against the Plaintiffs be dismissed and it is further ordered that the Plaintiffs do recover possession of the real property more particularly described in the Schedule to the statement of claim.

Lastly it is ordered that the Defendant pay the Plaintiff's costs from the beginning of the action on the 29th July 1980. Costs to be taxed and paid by Defendant to Plaintiff.

29 October 1980

FREDERICK G. COOKE
CHIEF JUSTICE