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Nelson v Remy [2006] VUSC 5; CC 210 2004 (16 February 2006)

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

Civil Case No. 210 of 2004

BETWEEN:

ADELYNE NELSON
Claimant

AND:

JOHN REMY
Defendant

Coram: Justice Treston

Mrs. Nari & Mr. Leon for Claimant
Mr. Daniel for the Defendant

Date of Hearing: 06 February 2006
Date of Decision 16 February 2006

JUDGMENT

CLAIM

In an amended Supreme Court claim filed on 23 March 2005, the original claim having been filed on 11 November 2004, the Claimant claimed for loss of business income in relation to a public transport operation together with damages in the sum of VT3,409,130. In an amended defence the Defendant denied the claim and contended that the Claimant could not claim loss, damages or compensation against him for things done or not done during a de-facto relationship.

FACTS

It was common ground that for about 18 years up to and including the period for which the claim was made, the parties lived together in a de-facto relationship.

In early June 1999, the Claimant purchased a Toyota Hilux truck at Asco Motors Limited for VT1,100,000. It seems that the Defendant himself actually went to Asco Motors Limited with the Claimant's money and carried out the purchase but the truck clearly was the property of the Claimant.

The Defendant was then working for Vate Electrics but he, according to the Claimant, resigned that position for reasons unknown to her, and, according to the Defendant, resigned because the Claimant persuaded him to operate the public transport business because he would earn more money doing that.

The Claimant herself managed the business until the end of January 2002 when she was posted to Lini Memorial College on North Pentecost as the Head Teacher. She carried out that position until she returned to Port Vila in May 2003. In the interim, she left the management of the public transport business in the care of the Defendant, who was also the driver of the vehicle.

The Claimant herself had completed the records of the business up until 24 January 2002 when she took her last monthly share of VT10,000 (see exhibit "B" to sworn statement of Claimant dated 15 September 2004). At that stage the balance in the business records was VT32,553.

Thereafter from 25 January 20002 until 25 May 2002 the Defendant completed the records and from time to time during that period paid out of the business account, house rent, repairs and maintenance of the truck, telephone, water and electricity bills, airfreight, shopping, a share to of the Claimant of VT10,000 on 1 May 2002 and some personal spending. As at the end of May 2002, the balance in the business account was VT89, 299.

It seems that the Defendant kept no records thereafter and the Claimant said that at the beginning of 2003, after leaving the vehicle in a very poor condition, the Defendant returned to his previous employment at Vate Electrics. The Claimant contended that the Defendant left the vehicle to deteriorate in the sun and rain outside their house while he used the company mini bus. She said that the Defendant took no steps to find someone else to continue the business.

As I have said, the Claimant returned to Port Vila in May 2003 and the parties lived together for sometime under strained circumstances and the vehicle remained outside the house until January 2004 when she took it to Spectrum Automotive Limited for repair and those repairs, according to the exhibits to her sworn statement, totalled VT235,980.

Shortly after the Claimant returned from Pentecost, it seems that because of the unhappy differences between the parties they separated, thus terminating their de-facto relationship.

The Defendant deposed in his sworn statement that he had managed the business and driven the truck up until March 2002 when he started having problems with his eyes particularly due to the reflection from white gravel in parking areas downtown and he was not able to work properly and earned less from the business. He said that he informed the Claimant about this and she sent some money to help him but he said that she did not refer to that in her evidence. The Defendant said that the business was running down and most of the money earned from it was spent to pay for the rent of the house and expenses and his maintenance because he was not paid any salary at all. He said that in late January 2003 he was offered his old job back at Vate Electrics and he told the Claimant about that and they decided to sell the truck. He said that some prospective purchasers came but considered that the asking price of VT800,000 was too much for the condition of the vehicle and thus was it left inoperative from February 2003 until January 2004 even though the Claimant had returned from Pentecost in May 2003.

There was a further claim by the Claimant when she said that the Defendant had threatened her driver in May 2004 causing the truck not to operate for one month.

Various Magistrates' Court orders were made against each party for non-violence.

HEARING

At the trial, evidence was given by the Claimant and two witnesses who attested to the fact that the truck had been left standing outside the house, which was the home of the parties during their relationship, for some months. They were cross-examined.

The defendant himself was also cross-examined.

Submissions were made by the parties.

FINDINGS

Apart from the claim for one month's loss of profit for May 2004 the operation of the business owned by the Claimant was carried out during the course of a de-facto relationship between the parties. The Claimant has endeavoured to base her claim on a commercial agreement between strangers. That was simply not the situation pertaining between the Claimant and the Defendant. Effectively the operation was being run as what could be called a family business, and it was only after the relationship ended that the Claimant sought to recover her alleged loss of profits from the Defendant. It is clear that during the time that the Claimant was working in Pentecost, the Defendant did not receive wages as such for operating the public transport business, although from the profits rent and other expenses were deducted to maintain the then joint home of the parties.

It would be inappropriate, in my view, to base the claim of the Claimant as if it were a commercial agreement between strangers. In any event, the Claimant has not proved on the balance of probabilities by any schedule or series of calculations that the income generated by the business was VT5,000 per day. It was simply stated that that was an income "estimated" without any proper calculations to back up that estimation. In any event that would be an inappropriate measure of damages or loss in the circumstances, even if it had been substantiated.

Effectively, the period during which the Defendant managed the business in the absence of the Claimant was from January 2002 until May 2003, when the Claimant returned from her employment in Pentecost. That was a period of 16 months. As I have said the last entry made by the Defendant before she left for Pentecost on 25 January 2002, being the balance in the business account, was VT31,553. As at 25 May 2002, when the Defendant stopped keeping records the balance in the account was VT89,299. The differences between those figures is VT57,746 for that four month period. Thus on a monthly basis the actual profit, putting aside payment for joint household expenses of the parties, amounted to VT14,436.5. That is the figure that could have been available to the Claimant per month after payment of the joint expenses of the parties.

It is my view that it was the Claimant's responsibility to take over the running of the business on her return from Pentecost in May 2003 and the Defendant cannot be responsible for the business thereafter. I was unimpressed by the Claimant's approach especially her evidence that she did nothing to reactivate the business between May 2000 and January 2004 because the Defendant, she said, refused to drive the truck to the garage for repair and because she was unwell. In any event, the Defendant denies refusing to take the truck to the garage but it was clearly the responsibility of the Claimant to arrange it. She could even have asked the garage to call and pick up the vehicle up for repair.

One payment of VT10,000 was made to the Claimant, according to the records, in May 2002. Taking that into account and based on the figures above, it is my view that the Defendant must be accountable to the Claimant for 16 months at VT14,436.5 per month being a total of VT230,984 less VT10,000 = VT220,984.

As to the claim for repairs, it is my view that, having carefully perused the invoices from Spectrum Automotive Limited, the items concerned are the result of "fair, wear and tear" for a second hand vehicle which had been operated as a public transport vehicle for some years. Those repairs cannot be the responsibility of the Defendant especially as the claimant herself left the truck inactive for at least eight months after her return from Pentecost and I decline the claim in that regard.

As to the claim for loss of profits during the month of May 2004 when the Defendant threatened the Claimant's driver, I am of the view that it was the responsibility of the Claimant to arrange for an alternative driver to carry on the business and that any loss to her has not been proved on the balance of probabilities as being the responsibility of the Defendant. In any event she has not proved the daily profits at that time on the balance of probabilities.

CONCLUSION

Consequent upon the findings above, I enter judgment for the Claimant against the Defendant in the sum of VT220,984 together with costs on a standard basis as agreed or as determined by the Court.

I direct that the Defendant must pay the judgment amount to the Claimant in full on or before 4pm on 16 May 2006, failing which the Claimant may apply for an enforcement conference.

Dated AT PORT VILA on 16 February 2006

BY THE COURT

P. I. TRESTON
Judge