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Dornic v Vanuatu Commodities Marketing Board [2010] VUSC 82; Civil Case 15 of 2009 (25 June 2010)

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

Civil Case No. 15 of 2009

BETWEEN:

CLAIRE DORNIC
Trading as C.L. Agencies
Claimant

AND:

VANUATU COMMODITIES MARKETING BOARD
First Defendant

AND:

VANUATU COCONUT PRODUCTS LIMITED
Second Defendant

Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Mr Felix Laumae for the Claimant/Applicant
No appearance by the Defendants/Respondents

Date of Hearing and Decision: 25th June 2010

DECISION

1. On 4th June 2010, the Court issued directions requiring the Claimant to effect service of their Application and supporting documents on the Defendants within 14 days, and ordered the hearing to be held on 25th June 2010.
   
2. Yesterday, Mr Gilu of State Law Office verbally advised the Court he would not be arriving in time for attending Court at 9 O’clock a.m and requested an adjournment to 2 O’clock p.m. A letter to that effect was received at 8.40 a.m this morning.
   
3. Mr Laumae objected to the request for adjournment raising concerns that such adjournment would serve no purpose. He pointed out to the Court that –
   
   • (a) Service was effected in compliance with the orders of 4th June 2010 on the State Law Office on 11th June 2010. Viviane Laumae has deposed to a sworn statement filed on 24th June 2010 to that effect.
     
   • (b) Since then to date, the defendant has not filed any sworn statement in accordance with Rule 9.6 (5) (a) and (b) of the Rules.
     
   • (c) Since Mr Dudley Aru filed a Notice to Cease Acting for the Defendants on 9th June 2010, the State Law Office has not filed any Notice to Begin Acting for the Defendants in this matter.
     
   • (d) The Defence filed by the previous solicitor Mr Aru on 11th August 2009 does not contain any arguable defence and that the Claimant believes that the defendant does not have any real prospect of the defending the claim.
     
   • (e) The issues of liability and entitlement to payment of copra subsidies were decided by the Court of Appeal in Civil Case No. 46 of 2008 and therefore it can no longer be an issue in the present case.
     
   • (f) The issue of quantum at a reduced sum cannot be substantiated by any evidence contrary to the evidence of Mrs Dornic and Mr Mulonturala that the total sums claimed at VT56.346.381 is based on VT13.000 per tonne beginning in September 2008 to December 2008 and January to April 2009.
     
   • (g) Attempts have been made previously by the Claimants to settle the matter amicably out of Court by making offers but the Defendant’s attitude has been negative.
     
   • (h) Counsel was served yesterday with a sworn statement from one Bulesa which contains irrelevant matters that do not afford any justification for an adjournment.
     
   • (i) The VCMB Act has been repealed by Parliament and awaiting Gazetting and for that reason, the Court would be minded to proceed with the hearing of the summary application.
     
4. Considering those points raised by Mr Laumaee in argument and submissions, I am convinced there is no justification for requesting any adjournment to 2 O’clock p.m. I am satisfied that –
   
   • (a) The State Law Office has not filed any Notice to Begin Acting for the Defendants in this matter. They are not exempted from complying with the Rules.
     
   • (b) They have filed a sworn statement but unfortunately the Court copy is not yet on File. The Court had an opportunity to see Counsel’s copy and having done so, I accept the submission that the statement contains irrelevant matters that do not move this Court for an adjournment.
     
   • (c) Due to circumstances beyond the Claimant’s control for instance, the repeal of the VCMB Act and its gazetting, which in essence, was the underlining reason for filing the application for summary judgment, the Court treated the matter with some urgency. It could have dealt with the application on 4th June 2010 but allowed a further 14 days for service. The Court maintains that position of urgency.
     
   • (d) Liability on the part of the defendant is no longer an issue according to the Court of Appeal decision in Civil Case No. 46 of 2008.
     
   • (e) As for quantum, the evidence of Mrs Dornic and Mr Mulonturala stand unchallenged. The defendant’s defence is that amounts were reduced from VT13.000 per tonne as at 1st September 2008. They have no evidence to substantiate that position. The evidence of Mrs Dornic and Mr Mulonturala all show that even after 1st September 2008, the defendants were still paying VT13.000 to copra buyers. That is the basis on which the claimant believes the defendant does not have any real prospect of defending the claim. And the Court after having seen the evidence, agrees with counsel.
     
5. In the circumstances of the case and for the reasons given above, the Court decides as follows:-
   
   • (a) The request for adjournment be declined.
     
   • (b) Summary Judgment be hereby entered in favour of the Claimant for the following –
     
     • (i) Principal Debt – VT56.346.381.
       
     • (ii) Interest thereon at 5% per annum to date of judgment.
       
     • (iii) Costs of and incidental to the action to be paid by the defendant on an indemnity basis, to be agreed or taxed by the Master.
       
   • (c) The defendant be hereby ordered to pay the principal debt and interest thereon within 21 days from the date hereof.
     

DATED at Luganville this 25th day of June 2010.

BY THE COURT

OLIVER A. SAKSAK
Judge