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Tari v Harvey [2006] VUSC 19; CC 163 2005 (1 March 2006)

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

CIVIL CASE No.163 of 2005

BETWEEN:

DUDLEY TARI
Claimant

AND:

PAUL HARVEY
of Australia
First Defendant

AND:

RAY CHITTY
Second Defendant

Mr Hillary Toa for the Claimant
Mr Robert Sugden for the First Defendant
The Second Defendant is not present

JUDGMENT

This is an application by Mr Robert Sugden on behalf of the First Defendant to set aside the Judgment entered by default on 5th days of August 2005 by Hon. Justice Oliver Saksak.

Sometime in 2005, His Lordship disqualified himself to hear the application to set his default judgment aside. The matter was then brought before me. This is a most extraordinary situation.

The history of the proceedings shows that the Claimant is a Ni-Vanuatu citizen. The First Defendant is an Australian citizen and resides in Queensland, Australia. The Second Defendant is a Ni-Vanuatu. The Claimant claims damages of Vatu 7,855,050 against the First and Second Defendants for breach of agreement, fraud and misrepresentation.

Directions were issued for the progress of the case before the Supreme Court in Luganville, Santo. The First and Second Defendants fail to appear and no defence was filed by either of them. On 5 August 2003, His Lordship Saksak entered a judgment by default in favour of the Claimant against the First and Second Defendants jointly and severally for damages to be assessed.

On 2 October 2003, Saksak J issued the judgment on quantum of damages of VT3,500,000 against the First and Second Defendants jointly and severally. On 3 October an Enforcement Order was issued by the Supreme Court in Luganville.

On 17 March 2005, Mr Sugden filed an application to set aside the Default Judgment of 5 August 2003 against the First Defendant, Paul Harvey. The application was amended and filed on 21 November 2005.

As mentioned earlier, Saksak J disqualified himself to hear the application. On 15 September 2005 he transferred the file to Vila Supreme Court for listing before another Judge.

On 1 March 2006, I hear the application and submissions from both counsel. Rule 9.3 of the Civil Procedure Rules (CPR) of 2002 requires that, to enter judgment by default, there had to be:-

(1) Proof of service before the Court; and

(2) A request for judgment in Form B.

Mr Sugden submitted that, in this case, the Proof of service had to be proof of personal service on Paul Harvey because there was no Order of the Court allowing service by any method other than personal service as provided under Rule 5.2. Rule 5.2(b) requires an Order of the Court.

In this case, because Paul Harvey, as he resides outside the jurisdiction, the Court must issue an Order allowing for service outside Vanuatu pursuant to Rule 5.14 of the CPR of 2002.

On 5 August 2003, when the judgment was entered there was:-

(i) No Order of the Court allowing service by any other means than personal service;
(ii) No Order of the Court for service out of the jurisdiction;
(iii) No sworn statement proving personal service (or service of any kind) and no evidence of any kind concerning service;
(iv) No Form 13 (Request for Judgment).

Mr Sugden submitted therefore that there was therefore no basis upon which Judgment could have been entered and the Judgment entered on 5 August 2003 against the First Defendant is irregular.

During the hearing of the application I enquire as to whether or not these procedural requirements were met when the Judgment was entered on 5 August 2003. I was informed by Mr Christopher Tavoa on behalf of the Claimant/Applicant that there was no application and no Order issued to serve Mr Paul Harvey outside the jurisdiction. Nobody knows about his address in Australia except Mr Ray Chitty.

The Claimant served the First Defendant, Paul Harvey through the Second Defendant, Ray Chitty as his agent. The sworn statement of Paul Harvey of Spring Hill, Queensland, Australia filed on 17 March 2005 in support of the application to set aside the default judgment shows that he was not aware about the service of the claim and the default Judgment until the 4th of February 2005 when the enforcement Order was faxed to him by the Claimant, Mr Dudley Tari (at paragraph 10 of the sworn statement).

Mr Paul Harvey denies that the Second Defendant was his agent. There was no evidence to contradict his denial in the material before me.

The circumstance of this case, warrants that the Default Judgment of 5 August 2003 be set aside against the First Defendant, Paul Harvey and I so order. The Defendant Judgment is maintained and Enforced against the Second Respondent.

ORDER

1. The Default Judgment of the Supreme Court issued in Luganville on 5 August 2003 is hereby set aside in relation to the First Defendant, Paul Harvey.
   
2. The First Defendant, Paul Harvey is entitled to the costs against the Claimant. The costs are assessed and determined at Vatu 180,000 to be paid by the Claimant, Dudley Tari in any event.
   

DATED at Port-Vila this 1st day of March 2006

BY THE COURT

Vincent LUNABEK
Chief Justice