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Bon Marche v Joel [2001] VUSC 85; Civil Case 012 of 1993 (6 August 2001)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

Civil Case No.12 of 1993

BETWEEN:

BON MARCHE

Plaintiff

AND:

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Defendant

class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> RULING

By Summons issued pursuant to Order 62 of the High Court Rules 1964, the Partereto were summoned to appear on 27^th June June, 2000 to show cause why their action should not be struck out.

On 27^th June, 2000Anna Lew represented the Plaintiff. The Defendant did not appear. Mrs Lew sought leav leave to renew the plaintiff’s writ. Leave was granted. No specific period was given for such renewal to be filed and served.

The Court notes however that no proper writ of summons was ever filed e Plaintiff. The only documents in the File is a short letter in French dated 18^th April 1991 which alleges that the sums of VT624.550 are outstanding against the Defendant. The only other document is a receipt dated 9/11/89 showing items supplied by the Plaintiff to the amount of VT624.580.

The claim is now some 12 years old. It appears from record that on 19^th June, 1991 ten Assistant Registrar Mrs Mrs R. Naviti wrote to the Defendant informing him of the claim and inviting him to come forward and negotiate settlement. There was no respond for the defendant. Then the Assistant Registrar further wrote to the Plaintiff advising her to approach the office of the Public Solicitor which was then available in Luganville for further advice. The letter is not dated. But it appears that Mrs Ah Keung attended on Mrs Heather Lini from that office on 26^th August, 1993. It appears that some advice and personal views were given to Mrs Ah Keung. Nothing further transpired from that time on until 21^st May 2000 when the Registry issued the summons to show cause under Order 62.

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Under Order 8 of the High Court R1964 the original period in which a writ was alive was 12 months. The period in whichwhich a writ could be renewed was originally 6 months.

On 15^th Decembe0 the Judicial Committee amended certain parts of these Rules. Order 8 Rule 1 was ames amended to reduce the period of 12 months to 3 months and 3 months for the renewal of same. Clause 3(c) of the Rules provides that the period before a summons to strike out proceedings (for want of prosecution) can be issued is reduced from 12 months to 3 months. And clause 3(d) states the power of a judge or magistrate to strike out without notice, any proceeding for want of prosecution after 6 months. These provisions are amendments to Order 62 of the High Court Rules 1964. These amendments were brought into effect on 1^st January 2001. They apply to all causes and matters commenced on and after 10^th January, 2001.

This matter was last heard on 27^th June, 2000. Leave was granted to the Plaintiff to renew their writ. Nothing has been done by the Plaintiff. It appears that these present Rules do not apply to this matter. Even so it is more than 12 months since leave was granted. And neither Party here has given any notice of their intention to proceed.

Under these circumstances and pursuant to the powers given by Order 62 Rule amended, this action is hereby struck out in its enti entirety. There will be no order as to costs.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> DATED at Luganville this 6^th day of August, 2001.

BY THE COUpan>

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OLIVER A. SAKSAK

Judge

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