ANZ Bank (Vanuatu) Ltd v Marchand [2001] VUCA 2; Civil Appeal Case 12 of 2000 (27 April 2001)

IN THE COURT OF APPEAL

OF THE REPUBLIC OF VANUATU

HELD AT PORT VILA

Civil Jurisdiction
Civil Appeal Case No. 12 of 2000

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BETWEEN:

ANZ BANK (VANUATU) LTD
Appellant

AND:

FRANCOIS MARCHAND
Respondent

Coram: Justice Bruce Robertson
Justice John Von Doussa
Justiniel Fatiaki

ORAL JUDGEMENT

This is an appeal from a decision of the Chief Justice delivered on 18^th October 2000. His Lordship entered judgment for the respondent for damages for unlawful interference with a caterpillar bulldozer in the sum of VT2, 847,562 including interest, and on a counterclaim entered judgment in favour of the appellant for the balance of a loan in the sum of VT3, 707, 188. His Lordship then ordered that one amount be set of against the other, and that judgment be entered in favour of the appellant for the net balance.

The appellant appeals against the judgment in respect of unlawful interference to the bulldozer, and does so on two grounds. The first is that the claim cannot succeed by virtue of the provisions of Section 26 of the Sale of Good Act 1893 (United Kingdom) which it is said is a statute of general application which applies in this Republic. The second ground is that there was insufficient evidence to support the assessment of damages.

There is a complex background to these proceedings that it is unnecessary to recite in detail. It is sufficient to note that by virtue of a Heavy Duty Vehicle Lease Agreement, entered into between the parties in November 1996, the appellant bank has asserted that it was the owner of the bulldozer in question. In later proceedings, resolved by decision of the Chief Justice on 22^nd December 1999, it was declared that the bulldozer was not owned by the bank. On the contrary, the Heavy Duty Vehicle Lease Agreement was held to be invalid and the Court declared that the bulldozer remained in the ownership of the respondent.

On the 3^rd August 1998, two writs of fieri facias were issued in the Supreme Court of the Republic of Vanuatu to seize assets of the respondent sufficient to satisfy judgment debts owed to two unrelated parties in respect of matters unrelated to the issues between the appellant and the respondent. On or about the 3^rd of August 1998 those writs came in to the possession of Sheriff.

On 14^th August 1998 the respondent attempted to start the bulldozer to undertake work in respect of which he says he had a contract. The starter motor had earlier been removed by him for repairs. When the starter motor was installed and an attempted made to start the bulldozer, it was discovered that the batteries had been removed to disable the bulldozer. It is common ground that the batteries were removed by agents of the appellant in the purported exercise of its rights as owner of the bulldozer under the Heavy Duty Vehicle Lease Agreement.

The writs of fieri facias were not executed until 29^th September 1998 when the bulldozer was taken into the Sheriff’s possession, and removed from the possession of the respondent.

The respondent’s claim at trial was for loss of use of the bulldozer for the period 14 August to 29 September 1998, a period which he quantified in his evidence as 45 days in respect of which he sought 8,000 Vatu per hour. He made a calculation which was some what in excess of 2.800.000 Vatu for the period in question.

The Chief Justice held that the Act was one of general application which applied in Vanuatu. However he held that the section in the circumstances of the case did not have the effect which was contended for by the appellant. His Lordship then proceeded to assess damages. He did so by working from the figure of 8.000 Vatu per hour for the 45 days period but made some discount in respect of time that might not have been worked at weekends. In the result he assessed the damages at 2.800.000 Vatu to which he added interest to arrive at the judgment sum.

We turn now to the first of the grounds of appeal which concerns s.26 of the Sale of Goods Act. We accept for the purpose of this appeal that the Act is one of general application which applies in the Republic. Section 26 reads:

“Effect of Writs of execution –

(1) A Writ of Fieri Facias or other writ of execution against goods shall bind the property in the goods of the execution debtor as from the time when the writ is delivered to the Sheriff to be executed; and, for the better manifestation of such time, it shall be the duty of the sheriff, without fee, upon the receipt of any such writ endorse upon the back thereof the hour, day, month and year when he received the same.

(2) In this Section the term “ Sheriff” includes any officer charged with the enforcement of the writ of execution.

(3) …”

(Emphasis added)

The appellant’s argument is that upon the writs of fieri facias being delivered to the Sheriff, the property in the goods was bound in favour of the two judgments creditors. It is contended that because the property was so bound the parties that would have the status to complain about interference with the bulldozer would be the two judgment creditors not the respondent. The learned Chief Justice, correctly in our view held that the effect of s.26, by the expression “bind the property” is that the property in goods cannot be conveyed by the owner except subject to the right of the execution creditor. In other words, if the respondent had sought in the period between 3^rd August and 29 September 1998 to transfer ownership of the bulldozer to another party that transaction and the transfer would have been subject to the right of the judgment creditors as a matter of law.

In our opinion this section is not concerned with rights that may arise from the actual possession of goods in favour of the person who holds possession.

In this case, the respondent was in possession, at least constructively, of the bulldozer in the period from 3^rd August 1998 to 29 September 1998. His complaint is that the bulldozer was subject to unlawful interference during that period by agents of the appellant. Whilst his pleadings do not use the word “trespass”, in substance they allege a trespassory interference with the bulldozer. Trespass is an historical cause of action which protects possessory interests. A party in possession of a chattel can sue in trespass for a deliberate, direct inference with it, even though the property in the chattel may be in another at that time. Plainly in this case, s.26 did not deprive the respondent of his right to protect his possessory interest in the bulldozer during the period in question. What occurred on the 14^th August 1999 was a trespass. It affected the possessory right of the respondent. In our opinion the learned Chief Justice was entirely right to hold that the effect of that trespass was to interfere with the respondent’s enjoyment and use of the bulldozer throughout the period in question. The first ground of appeal therefore fails.

The second ground is that the evidence led by the respondent was insufficient to justify the award of damages that was made. The alleged deficiencies identified in the aant’s submissions were not squarely put to the respondspondent in the course of his cross-examination. Rather the appellant, recognising possible short-comings in the respondent’s evidence, kept them for surprise at the end of the trial. By so doing the appellant in fact deprived the respondent of any opportunity to call additional evidence to address the alleged deficiencies.

The problem with such an approach to litigation is that it has the potential to lead the Court, and the opposing party to think that the possible deficiencies are not being relied upon by the party who fails to raise them during the trial. This has the effect of leading the other party into a false sense of security. Once the nature of a claim by a party is identified to the court and supported by some evidence, even though that evidence may be scant and imprecise, it is for the other party to challenge it fairly and squarely and to put to the opposing party what that party proposes to rely upon. After all, even in the adversarial system of justice, the court is concerned to do justice according to the true facts of the case.

In this case the alleged deficiencies which the appellant now seeks to rely on should have been raised fairly and squarely with the respondent during his cross examination, and it is now too late to seek to re-run those aspects of the trial before the Court of Appeal.

The alleged deficiencies are identified in the written submission of the respondent. It is said that there was insufficient evidence, or insufficient strength in the evidence, to justify a finding that the bulldozer would have been in use for 45 days. It is said the evidence only indicated that there was a contract on the 14^th of August 1999, to work for Vate Timber at a rate of 8.000 Vatu per hour. The appellant wished to contend that failed to establish that the bulldozer would have been in use over the following 44 days. But that issue was not put during cross- examination of the respondent. His evidence in chief identified the basis of his clam. There is material in the file which indicates that the respondent had earlier asserted that he had a number of contracts. Had the matter been put to him it is probable, having regard what is in the file that he would have responded by saying that he had a back up of jobs to keep him busy, and that he would have been able to identify those jobs. In our opinion it was open to the Chief Justice to assess the damages on the basis that the bulldozer would have been in use for the 45 days in question.

Next it is said that the evidence failed to show what over head expenses would had been incurred by the respondent in the course of operating his bulldozer. It is true that the evidence about overhead gross rates, and so on leaves a lot to be desired. However the respondent had asserted the rate. He was not cross-examined about overhead expenses, if any, that should be deducted. Nor was he asked whether in arriving at the rate 8.000, Vatu overheads had already been provided for, or would be covered in some other way. More significantly, this issue was not raised at the end of the trial in submissions by the appellant. The learned Chief Justice was therefore entitled to assume that this was not an issue that needed to be addressed. In our view it was open to his Lordship to accept for the purposes of the calculation that the loss was to be assessed at the rate of 8.000 Vatu per hour.

It is also contended that there was no satisfactory evidence that the starter motor would have worked when it was replaced on the 14^th August 1998. Counsel suggested that perhaps the repairs were inadequate in some manner or another so that the bulldozer would not have functioned. That submission fails to have regard to the probabilities and the common sense of the matter.

The starter motor had been taken for repair by a competent repairer. It stretches the imagination to suggest that it would not work after being repaired. But even if one’s imagination were to run that far, the rest of the evidence indicates that the bulldozer must have worked on 29^th September 1998 when the batteries were replaced, to enable it to be loaded by the sheriff onto a vessel in order to remove it. In our opinion it was open to the Chief Justice to arrive at the assessment under appeal upon evidence that was available to him, having regard to the way in which the trial was conducted.

In our opinion the second ground of appeal also fails.

For these reasons the appeal will be dismissed with costs.

Dated at Port Vila this 27^th day of April 2001

BY THE COURT OF APPEAL

Justice John Von Doussa
Justice Bruce Robertson
Justice Daniel Fatiaki