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Dinh v Kontos [2005] VUSC 1; Civil Case 238 of 2004 (4 January 2005)

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

Civil Case No. 238 of 2004

BETWEEN:

GILBERT DINH
Applicant

AND:

RICHARD ANTHONY KONTOS
First Respondent

AND:

GLORIA KOFFAL
Second Respondent

Coram: Justice H. Bulu

Mr. James Tari for the Applicant
Mr. Silas Hakwa for the Respondents

Hearing Date: 4 January 2005

Judgment Date: 4 January 2005

DECISION ON URGENT APPLICATION FOR INTERLOCUTORY ORDERS

The Application

In an application dated 31 December 2004 the Applicant applied for the following orders:-

1. Orders that the First and Second Respondents immediately vacate the premises of the property known as Blue Water Island Resort;
   
2. Orders that the First and Second Respondents surrender their passports and travelling documents to the Court until such time the Court decides on the substance of the case;
   
3. The First and Second Respondents to pay the costs of and incidental to this application;
   
4. Any other Orders as the Court deems fit.
   

On the grounds summarised as follows:-

1. On 17^th July 2004 he signed a sale agreement with the respondents for the sale of Blue Water Island Resort at a price of 2 million Australian dollars.
   
2. The Respondents had paid $250,000.00 upfront as required. The balance of the sale price is to be paid in monthly instalments to the amount of $36,000.00 until the purchase price is paid up.
   
3. The Applicant claimed that the Respondents have not paid the instalments for November and December 2004 as required under the Agreement.
   
4. Under Clause 3 (d) of the Sale Agreement the Applicant has the right to terminate the Agreement if the instalments are in default for two months.
   

Respondents’ position

They take issue on the point that they have not paid instalments for November and December 2004. They have paid. They have deducted the two instalment payments from the costs of assets that the Claimant said in the Agreement were there, but in fact are not.

They submitted that in agreements one must look at the entire contract and not a provision only and rely on that. The Claimant has not attached the entire agreement to his sworn statement. Important parts are missing. Those missing parts go to show the true and full picture of the arrangement reached and goes to the heart of the current issue.

They further submit that clause 3 of the contract of sale is the meat of the Agreement and not just clause 3 (d) and that the Applicant is yet to comply with clause 3 (c). He did not reveal everything at the completion of the agreement. He does not hold the mortgage, he claimed to hold. The Bank does.

The Applicant further made false representations under clause 4.1. Many of the assets listed in the agreement are simply not there.

This is a matter that is best resolved out of Court.

Law

Rule 7.5 (1) of the Civil Procedure Rules says that a person may apply for an interlocutory order if he:-

- has a serious question to be tried, and

- he would be seriously disadvantaged if the order is not granted.

Subrule (3) says that the Court may make the Order if it is satisfied that:-

(a) the applicant has a serious question to be tried and, if the evidence brought by the applicant remains as it is, the applicant is likely to succeed, and

(b) the applicant would be seriously disadvantaged if the orders is not made.

Findings

Having perused the documents filed and having heard counsels, I make the following findings:

• The Applicant has not shown to my satisfaction the reasons for the urgency of the application. The belief that the assets will be removed or destroyed is not a sufficient reason in itself to enable the Court to grant the orders sought.
  
• Whether instalments for November and December 2004 have been paid is in issue.
  
• The agreement has not been terminated.
  
• The respondents are on the property. They are not trespassing on the property.
  
• The respondents are operating the property as a resort, a going concern.
  
• The applicant has no intention of continuing to operate the property as a resort if the Court grants the Orders he is seeking. He wants the property to be left untouched until the substance of the claim is finally determined. Such a position will have an adverse effect on the resort. That will be very prejudicial to the respondents.
  

I am satisfied that the applicant has a serious question to be tried, and that is in relation to the question of the mode of payment of the sale price by instalment. Whether the terms of the sale agreement envisages payments by instalments that includes set offs.

However, I am not satisfied that the applicant will be seriously disadvantaged, if the orders sought, were not granted. In reality the respondents stand to be seriously disadvantaged if the orders are granted.

My view of rule 7.5 (3) of the Civil Procedure Rules is that paragraph (a) and (b) are adjunctive. The Court must be satisfied on both grounds for the orders sought to be granted. In this application I am not satisfied on the second limb.

Therefore, all orders sought are refused.

Orders

1. Orders that the First and Second Respondents immediately vacate the premises of the property known as Blue Water Island Resort, is refused;
   
2. Orders that the First and Second Respondents surrender their passports and travelling documents to the Court until such time the Court decides on the substance of the case, is refused;
   
3. Costs fall where they lie.
   
4. Respondents to file their defence within 31 days of today’s date.
   
5. Applicant to file its response within 14 days thereafter.
   
6. Next conference is at 9 a.m. on 18^th February, 2005.
   

Note: In my view this is a matter that parties ought to consider strongly resolving out of the Court.

DATED at Port Vila, this 4^th day of January 2005.

H. BULU
Judge.