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Santa Cruz Timber Ltd v Pacific European Investment Ltd [2001] VUSC 83; Civil Case 026 of 2001 (31 July 2001)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

Civil Case No. 26 of 2001

BETWEEN:

SANTA CRUZ TIMBER LTD

First Plaintiff

AND:

LOUIS & LUTE BARBOU

Second Plaintiffs

AND:

PACIFIC EUROPEAN INVESTMENT LTD

First Defendant

AND:

JIMMY GIOVANI

Second Defendant

Coram: Before Mr Justice Oliver A. Saksak

Clerk: Ms Cynthia Thomas

Counsels: Mr Saling N. Stephens for the Plaintiffs

Mr Daniel Yawha for the Defendants

Date of hearing: 31st July, 2001 at 9.35am

INTERLOCUTORY JUDGMENT

By Summons (General Form) issued pursuant to O.57, R13 the Plaintiffs seek Orders for final judgment for the sum of VT 29,174,411 against the Defendants, and also claim an order for costs and other orders. The summons was filed on 25^th July, 2001.

The Plaintiffs rely on the affidavit of Mrs Lute Barbou which is taken as read.

Mr Yawha objects to the application for final judgment. He argues and submits that having filed a Memorandum of appearance on 11^th July, 2001 the Defendants have indicated sufficiently that they intend to defend the suit. He further submits that the matter is subject to directions of the Court at a conference hearing whereby the Parties would attend and discuss the issues.

Mr Stephens argued that the Defendants should have filed their defences on or by 25^th July, 2001. And having failed it is the right of the Plaintiffs to seek to have final judgment entered.

Whilst what Mr Stephens submits is correct, it appears that the Defendants were exercising a liberty that the Court had granted them on 6^th July, 2001 by filing their Summons on 20^th July, 2001 to have those orders vacated . And it appears that by pre-occupying themselves with that Application they had overlooked the need to file a defence on 25^th July. The Court has now heard and dismissed their summons. In these circumstances it would be fair and proper to afford the Defendants a further opportunity for them to file and serve their defence. And for these reasons I dismiss the Plaintiff’s application. The Parties will pay their own costs. I however direct that the Defendants file and serve their defences and affidavits in support thereof within 14 days from the date hereof.

Dated at Luganville this 31^st day of July, 2001.

BY ORDER OF THE COURT

OLIVER A. SAKSAK

Judge