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

Civil Case No. 86 of 2011

BETWEEN:

WENDY HUTTON
Claimant

AND:

BELLA TARI
Defendant

Hearing: 3 December 2012
Before: Justice Robert Spear
In attendance: Jennifer La'au for the claimant
 Colin Leo for defendant
Delivered: 3 December 2012

JUDGMENT

THE JUDGMENT DELIVERED ON 3 DECEMBER 2012 IS RECALLED.
THE ORDER SPECIFIED IN PARAGRAPH 14 IS CORRECTED AND THIS JUDGMENT IS RE-ISSUED THIS 6th DAY OF DECEMBER 2012

1.	This is the hearing of an application for summary judgment in respect of a claim by Wendy Hutton for the eviction of the defendant and her immediate family, servants or agents from a residential property in Port Vila. That residential property is in the No. 3 Area of Port Vila and has registered land title No. 11/0X21/016.

2.	The defence to the claim and the evidence filed by the defendant (Bella Tari) in support of her opposition to summary judgment is to the effect that she lived in the house with one Ken Hutton ( Wendy Hutton's father) in a de facto relationship for some 18 years. Ken Hutton was a dentist in Port Vila for many years. 

3.	The defence is that, as part of the consideration that flowed mutually within their relationship, Ken Hutton promised Bella Tari that the house that they lived in would become hers when he returned to reside in his home country of Australia. However, in or about 2010, Ken Hutton left Vanuatu but made no arrangements to transfer the property to her. That is the essential assertion made in the defence to the claim. It is supported, to an extent, by various sworn statements and, in particular, from Bella Tari (2) as well as Serah Tari. 

4.	There is evidence in support of the claim from Wendy Hutton and others.

5.	The evidence is entirely at cross purposes. 

6.	The claim relates to a property in the No. 3 area of Port Vila with a registered land title reference 11/0X21/016. Wendy Hutton has adduced evidence that she used to own this property with her husband for many years but when the marriage reached difficulties and they separated, the property in No. 3 Port Vila was transferred into her name as part of the matrimonial property division. 

7.	The evidence from the defendant relates to a quite different property bearing title reference 11/0A31/017 which is in the No. 2 area of Port Vila. Bella Tari indeed produces a copy of a lease of the property entered into in 2008 between Ken Hutton (lessor) and a Dr Hurley and his wife (lessee) for a rental of Vt 200,000 per month. 

8.	The evidence from Glen Gray (local real estate agent) in support of the application for summary judgment is that this property is in the No. 3 area of Port Vila and not the No. 2 area. Furthermore, the rental assesment (current)is at between Vt 90,000 and Vt 100,000 per month.

9.	The conclusion is inevitable and irresistable that Ms Tari mistakenly believe that the property in which she was residing with Ken Hutton belong to Ken Hutton whereas it appears that he owned another property in No. 2 not No. 3 with title reference 11/0A31/017.

10.	Accordingly, it is clear that Bella Tari has no claim to any right of occupancy in that house (11/OX21/016) particularly as she was given notice on 24 January 2011 by Wendy Hutton to quit the premises by 7 February 2011. It may well be that she has been deceived by Ken Hutton but there is no suggestion that Wendy Hutton knew about this or that her father was acting in this way. 

11.	It appears that Ken Hutton did own a property in the No. 2 area but resided with Bella Tari in his daughters property in the No. 3 Area of Port Vila. There is nothing exceptional about that arrangement. 

12.	What is unfortunate is that it appears, from the evidence, that Ken Hutton has deceived Bella Tari into believing that the property in which they were residing belonged to him and that, when he returned to Australia, she would become the owner of it. Of course, he was not able to enter into any agreement at all in respect of that property with Bella Tari and so it was simply an empty promise on his part. The legal maxim of nemo dat quod non habet applies which simply means that no one can give a better title than what they possess. While the Court has a great deal of sympathy for a woman who has been deceived or duped by Ken Hutton there is nothing to suggest that Wendy Hutton should be estopped from denying Bella Tari's claim or otherwise should be restrained from obtaining vacant position of the property.

13.	There is no possible defence made out by the evidence. It appears that Bella Tari is the victim of Ken Hutton's deceipt. Whether she wishes to turn her attention to pursuing an action against Ken Hutton in Deceipt will no doubt depend on whether he still has any assets in Vanuatu.

14.	Judgment Accordingly, judgment is entered in favour of the claimant Wendy Hutton with the order: 

The defendant and her immediate family, servants or agents (or any other person claiming through her a right to occupancy of the property situated in Port Vila and bearing land title reference 11/0X21/016) must vacate that property by 21 December 2012 and deliver up vacant possession to Wendy Hutton.

15.	There is a further claim for damages for Vt 90,000 per month from 24 January 2011. The only evidence in support of that is the fact that Bella Tari has remained in the property and that Glen Gray has assessed Vt 90,000 as being the bottom of the range for rental for this houe. 

16.	Having regard, in particular, to the contiuing relationship between Wendy Hutton and her father Ken Hutton, and the distressing background circumstances which have now led the Court to make this order requiring her to vacate the property, it would be unjust in my view to require Belle Tari to pay damages or costs in respect of this proceeding. That may seem a harsh outcome for Wendy Hutton and one that might suggest that the sins of the father are being visited on to the daughter. However, I view it as a matter of common decency. The Court is aware of another related extant proceeding, also involving Bella Tari and involving a claim for employment entitlements, whereby Wendy Hutton is acting as the litigation guardian for her father, Ken Hutton because he is now infirmed and in a home in Queensland. 

17.	So, the order is made for the eviction of Bella Tari from the property bearing the title reference 11/0X21/016 but there are no further orders of the Court either as to damages for lost rental or costs.

BY THE COURT