Dinh v Cap Quiros Ltd [2005] VUCA 27; Civil Appeal Case 25 of 2005 (18 November 2005)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Civil Appellate Jurisdiction)

Civil Appeal Case No. 25 of 2005

BETWEEN:

MOI DINH
Appellant

AND:

CAP QUIROS LIMITED
First Respondent

AND:

FRANK GALLO
Second Respondent

Coram: The Hon. Chief Justice Vincent Lunabek
The Hon. Justice Bruce Robertson
The Hon. Justice Daniel Fatiaki
The Hon. Justice Patrick Treston
The Hon. Justice Hamlison Bulu

Counsels: Mr. James Tari for the Appellant
Mr. Willie Kapalu for the Respondents

Date of Hearing: 9th November 2005
Date of Judgment: 18th November 2005

JUDGMENT

This is an appeal against the decision of the Supreme Court delivered on 15th September 2005 at Luganville, Santo where the Court found in favour of the Claimants and awarded the following damages:-

(a) Costs of Bulldozer – VT1,000,000;
(b) Damages for breach of agreement – VT500,000;
(c) Damages for being negligent – VT500,000;
(d) Costs of and incidental to the action.

The Appellant seeks the following relief:-

1. Appeal allowed.
   
2. That the judgment and/or orders made by Hon. Justice Saksak in the Supreme Court Civil Case No. 10 of 2005 held at Port Vila, dated September 15, 2005, be quashed.
   
3. Costs of and incidental to this appeal.
   
4. Such other and further order as this Honourable Court sees necessary to make.
   

The Appeal was advanced on the following grounds:-

1. His Lordship erred in facts and or law in deciding that the First Respondent has locus standi in pursuing the matter in the Supreme Court.
   
2. His Lordship erred in facts and or law in deciding that the Second Respondent has locus standi in pursuing the matter in the Supreme Court.
   
3. His Lordship erred in facts and or law in deciding that the Second Respondent has owns the Bulldozer.
   
4. His Lordship erred in facts and or law in deciding that the Bulldozer belongs to the First and Second Respondents.
   

The sole issue on appeal is that of the standing of the Respondents.

It is not disputed that at the time of the agreement the First Respondent Cap Quiros Limited was a company in existence and on the Register of Companies. However, by the time the proceedings were commenced, Cap Quiros had been de-registered and, as such, no legal entity of that name existed so that it could either sue or be sued. The Supreme Court Judge misinterpreted the onus requirement. The first respondent asserted it was a registered company and in the Supreme Court that was denied. Cap Quiros had to prove its legal existence in those circumstances and not the appellant. Cap Quiros had no legal existence on the evidence and had to be struck off from the proceedings.

The next question is whether Frank Gallo, the Second Respondent has standing to pursue the matter. In the Court below the Judge, as a fact, found that the appellants had not produced any relevant evidence to prove that the Respondents lacked standing to bring the action.

There is nothing before this Court that would persuade us, to take a different view. Mr. Gallo is an adult individual legal person who can clearly sue and be sued.

Mr. Tari on behalf of the Appellant submitted that the First Respondent used to be a company registered in Vanuatu, and the Second Respondent as its managing director was a foreign investor. Mr. Tari submitted that it is a requirement that the Second Respondent must establish the First Respondent before carrying on any business in Vanuatu and that further that Mr. Gallo cannot operate in isolation from the First Respondent. It was submitted that these are requirements under the Foreign Investment Promotion Authority Act which were breached.

This is the first time this argument has been raised. It is not in the pleadings in the Supreme Court and was not raised in that Court. Counsel cannot raise it as a new matter now. But it seems clear that at the time of the dispute there was a company (the First Respondent) Mr. Gallo was acting lawfully through it. The company no longer exists but Mr. Gallo can pursue the matter in his own right.

As to ownership of the Bulldozer even though the company is not in existence anymore, the Court below found that the company and Mr. Gallo owned it. As the company has disappeared the ownership now vests solely in Mr. Gallo. If the Bulldozer had been owned solely by the company, then, the ownership would have vested in the State in terms of section 336 of the Companies Act on the striking off the company from the Register of Companies. That is not the case.

There was no argument about the finding of the Supreme Court that there was an agreement between the parties as to the hire of the bulldozer and that there was a breach of the deal.

We find that for slightly different reason that the judgment in favour of Mr. Gallo is correct.

The appeal is allowed by striking out the Judgment in favour of Cap Quiros Ltd but otherwise the decision of the Supreme Court is confirmed.

Costs at the standard rate are awarded against the appellant to be determined if not agreed.

DATED at Port Vila, this 18th day of November 2005.

Hon. Vincent Lunabek, CJ
Hon. Justice Bruce Robertson
Hon. Justice Daniel Fatiaki
Hon. Justice Patrick Treston
Hon. Justice Hamlison Bulu