Neinei v Yun [2007] KIHC 150; Civil Case 76 of 2006 (22 October 2007)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Civil Case 76 of 2006

BETWEEN:

KIALI NEINEI
Plaintiff

AND:

WILLIAM YUN
Defendant

For the Plaintiff: Ms Taoing Taoaba
For the Defendant: Ms Jane Fiske

Date of Hearing: 22 October 2007

JUDGMENT

Claim by the plaintiff for $7,900 with interest, being the balance due on a loan of A$22,240.00 (US$20,000) made in 2005 by the plaintiff to the defendant. According to the plaintiff A$14,500.00 has been repaid, as to $13,500 with a truck of that value given by the defendant to the plaintiff and, later, with two lots of $500 each. The Writ is dated 13th October 2006.

The Defence is, in short, the defendant knows nothing about the matter: he did not borrow money from the plaintiff whom he does not even know.

The problem with the hearing of the case has been that the defendant now lives on Kiritimati where he runs a business. He has been unwilling to come to South Tarawa to defend the claim: has applied for a hearing on Kiritimati.

On 13th April I made a note on the file:

To be set down for hearing on Tarawa unless Grover has instructions persuading the Court to the contrary: for mention on 26 April.

No application was made for a hearing on Kiritimati.

On 25th May I fixed security for the defendant’s costs (to be paid into Court by the plaintiff by Thursday 14th June) at $500. $500 is sufficient for a deck fare from Kiritimati to South Tarawa and return. The hearing (on South Tarawa) was to be a standby for the week beginning 16th July and priority for Monday 23rd July. On 15th June a fresh date was fixed for hearing on Tuesday 14th August. At the beginning of July (probably on 3rd July) the defendant asked that the hearing be on Kiritimati in December 2007/January 2008, then thought the likely time for the next sitting on Kiritimati. Ms Taoaba for the plaintiff took instructions: they were that the hearing should proceed on South Tarawa. I ordered that the hearing on Tarawa go as far as the close of the plaintiff’s case. The action was made a standby for the week beginning 23rd July and priority for 30th July: otherwise for mention on 10th August. Finally I heard the plaintiff’s case on 23rd July and made this note:-

Part heard and, to allow the defendant to come from Kiritimati hearing to be completed on Monday 22 October (1/2 day) (priority). Warned Grover that if I believe there is deliberate delay on part of defendant that will be reflected in the rate of interest to be fixed on the judgment if the plaintiff succeeds.

On 11th October the trial date of 22nd October was confirmed.

In the meantime the defendant applied for greater security for costs – enough to allow him to fly here and back and that "the plaintiff provide an undertaking as to damages". In his affidavit he alleged otherwise his business would suffer. I did not grant the application. The completion of the hearing remained set for Monday 22nd October.

On 18th October the defendant applied again for the continuation of the hearing on Kiritimati: Ms Fiske, now his counsel, said he could not afford to come to South Tarawa. In his affidavit of 18th October the defendant swore:-

2. I have been informed by my lawyer that this matter is fixed for hearing on 22 October 2007. I was first informed on
   7 August 2007.
   

The defendant waited 2½ months after he knew the hearing was fixed to 22nd October to apply again to have the hearing on Kiritimati.

By 23rd July I had become suspicious of deliberate delay by the defendant. This application confirms my suspicion. The Court does its best to meet the convenience of all parties but it is not going to be manipulated by one party to the prejudice for another. The defendant has tried to manipulate the Court, to delay the hearing to the prejudice of the plaintiff. The Court must take into account the interests of all parties, plaintiffs and defendants, balance evenly their interests.

On 22nd October I finished the hearing in the absence of the defendant (but with his counsel, Ms Fiske, appearing) and with no witnesses being called by the defence.

I go back on 23rd July when I heard the plaintiff’s case:-

Kiali Neinei:-

I know William. He came to me to borrow money – about July August 2005. He came with another business man Lome. I was a bus owner. They came to me at my house at Eita – to offer me cargo to sell. After that William asked if he could borrow money. Asked for US$10,000: then for another US$10,000 and he said he was going to get money to pay back very soon. I gave him the money.

He did not pay - back for a long time and I found him at Atarake’s house. I told him he should pay me back US$20,000. He gave me a truck for A$13,500. He made me two payments of $500 through Lomi (first amount) and Bolau.

I tried to get him and found at Teaoraereke at Anote’s and asked him to pay back what he owed. He told me to take him to court as he had no money. Before he went to Kiritimati ..... William himself negotiated with me.

Nei Bolau:-

I know William: he came with son of my sister, Lomi. Came to house of my children 2-3 weeks after I came to live in Kiribati. Came with Lomi. Asked to come to stay with me .... After William asked for the hand of Anote’s daughter in marriage he went and stayed there. Stayed for some months. He wanted our family to deliver his cargo.

Know Kiali: came to house: I was there. He came and asked for William about his debt. William at house. William said he didn’t have any money "All I’ve got is this truck". He accepted the truck. Lomi was there.

Kiali took the truck.

William gave me $500 and told me to give it to Kiali.

At the time I made this note:-

I would be unwilling not to accept this lady as telling the truth. The plaintiff impressed me as truthful as well. A tentative opinion to be confirmed or otherwise after hearing the defendant.

I have not heard the defendant. I have no reason now not to confirm the tentative opinion I formed about the plaintiff and his witness. I find on the balance of probabilities that the defendant came to the plaintiff asking to borrow US$20,000. He has repaid part of the loan by giving the plaintiff the vehicle worth $13,500 and $1,000 in cash. The balance is as claimed A$7,900. To this is to be added interest. I shall hear counsel on interest and as to the order I should make.

Dated the day of October 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice