Lui v Westpac Banking Corporation [2007] VUCA 16; Civil Appeal Case 31 of 2007 (24 August 2007)

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

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice Ronald Young
Hon. Justice Edwin Goldsbrough
Hon. Justice Hamlison Bulu
Hon. Justice Christopher Tuohy

Counsels: Mr. Edward Nalyal for the Appellant
Mr. Nigel Morrison for the Respondent

1. This is an appeal against the decision of Justice Saksak delivered in the Supreme Court in Luganville in Civil Case No. 129 of 2004 giving judgment in favour of the Claimant in the sum of VT1,558,156 plus filing fees of VT20,000 and interest at the rate of VT739 per day from 29 April 2004 to the date of judgment.

2. The Appellant seek orders of this Court to allow the appeal and have the matter returned to the Supreme Court for trial.

3. The Respondent’s original Claim was filed in the Supreme Court on 5 July 2004 and sought moneys owed to it under an Asset Purchase Agreement entered into on 10 November 2000. The Agreement was entered into between the Westpac Banking Corporation and the Appellant and his elder brother. Proceedings commenced against the Appellant only because his brother was unemployed. They are liable jointly and severally for the repayment of the loan amount plus interest under the Agreement. The Agreement allowed the Appellant and his brother to purchase a Toyota Hilux 4x2 pickup vehicle for the Appellant’s brother to run a taxi service. The vehicle was involved in an accident on 26 June 1999 and was out of service until 23 October 2000 when it was released to the elder brother after repairs. It was out for almost 16 months not earning any income. The loan repayments fell into arrears and the Bank repossessed the vehicle and sold it. The Appellant had failed to repay the principal sums owed by instalments with interest pursuant to the Agreement.

4. The Claim was filed originally in the Supreme Court Registry in Port Vila. However in December 2005 the matter was transferred to Luganville on the application of both parties as most of their witnesses were in Santo.

5. On 11 September 2006 the Supreme Court in Luganville issued orders that "the matter be called up for trial preparation conference on 30 October 2006 at 08.30 hours before this Court in Luganville." Mr Morrison, counsel for the Respondent, in a letter dated 14 September 2006, wrote to Mr. Daniel, then counsel for the Appellant, attaching a copy of the order of the Court for Mr. Daniel’s attention. Mr. Daniel was not in Court when the order of 11 September was issued.

6. On 2 November 2006 there was a further conference. Only Mr. Morrison attended. The Court issued a direction that "the case (will) be heard in Luganville on Monday 12th February 2007 at 9 o’clock a.m."

7. On 5 February 2007, Mr. Morrison wrote to the Assistant Registrar in Luganville copying his letter to Mr Daniel requesting an adjournment of the matter. The reason for that request was twofold:-

(a) Mr. Morrison had been unable to arrange the availability of witnesses he wished to call and serve summonses upon them for the purposes of the trial.

(b) Mr. Daniel needed to confirm with his client when it may be suitable for him to be in attendance in Santo for the purpose of the hearing.

8. Pursuant to that letter a further direction from the Court was issued on 16 February, 2007 listing the matter for hearing on 2 and 3 May 2007 at 8.30a.m. in the Supreme Court in Santo. Mr. Morrison wrote to Mr. Daniel on 28 February 2007 advising him of the new trial dates and said "we will be proceeding with the claim on those dates unless there is very good reason why the Defendant is unable to attend ... if there are good and valid reasons why the trial cannot proceed on those dates which you wish to impress upon the Court please copy your correspondence to us in a timely manner."

9. On 2 May 2007 when the hearing commenced neither Mr. Daniel nor his client were present. The Court granted leave to the Claimant to put its case to the Court.

(a) The Appellant was liable, severally, pursuant to clause 1.2 (b) of the Asset Purchase Agreement. The Appellant’s brother was not joined by the Claimant because he had no regular income.

11. The Court was satisfied with the Respondent’s claim based on the evidence before it and gave judgment in favour of the Respondent. The Appellant was not happy with that decision because he was not in Court on that day to tell the Court his case and hence this appeal.

12. The main issue arising in this appeal for determination is whether the Appellant was granted an opportunity to be heard.

"(a) the learned trial judge erred in law and in fact in not adjourning the trial but instead proceeded with the trial without the Defendant being present.

(b) the learned judge erred in law and in fact in not considering that the matter be adjourned to allow the Defendant to attend Court to present his case because the Defendant’s defence and supporting statements filed in Court in this matter clearly challenge the Claimant’s claim as regards the liability and the quantum of any outstanding monies owed by the Defendant to the Claim.

(c) the learned judge erred in law in not adjourning the trial in this matter because the justice of the case warrants a trial."

14. Grounds (a) and (b) can be properly summarized as one, that the Appellant was not present at the hearing and was not given the
opportunity to be heard.

5 July 2004	Claim by the Respondent filed in the Supreme Court in Vila.
18 August 2004	Defence by Appellant filed. Conceded that he could not pay the monthly principal instalments.
6 December 2005	Willie Daniel and Jennifer La’au wrote to the Court that at its next fixture they will apply to have matter transferred to Santo.
11 September 2006	Chambers hearing. Court directed that trial preparation conference will be at 8.30 a.m. on 30 October 2006. No appearance by Defendant.
14 September 2006	Nigel Morrison wrote to Willie Daniel attaching the order of 11 September 2006 advising Mr. Daniel of the conference.
2 November 2006	Chambers hearing. Court directed that hearing will be on 12 February 2007 starting at 9.00 a.m. No appearance by Defendant.
5 February 2007	Nigel Morrison wrote to Assistant Registrar requesting adjournment of hearing fixed for 12 February to another date.
16 February 2007	Chambers hearing. Court directed that the matter will be heard on 2 and 3 May 2007. No appearance by Defendant.
28 February 2007	Mr. Morrison wrote to Willie Daniel attaching a copy of the Notice dated 16 February 2007 for his attention. Also advised him that if there are good and valid reasons why the trial could not proceed on those days then to advise him in a timely manner.
2 May 2007	Hearing commenced. Judgment given. Neither Willie Daniel nor his client appeared.

16. The Appellant cited a number of case authorities to assist his submissions that he was not given an opportunity to be heard; Gilbert Dinh v. Polar Holdings Ltd., CAC16/06; Coconut Oil Production Vanuatu Ltd. v. Tavoa, CAC16/05; Fujitsu (NZ) Ltd. v. International Business Solutions Ltd., CAC7/98; Michel v. Director of Finance, CC68/98; Michel v. PSC, CAC4/98; Gidley & Vanuatu Indigenous Development Alliance Ltd. v. Tamata Mele, CAC34/07.

17. We have considered these cases. In our view, the facts of this case are distinguishable from these other cases. In this case the Appellant had been given more than sufficient opportunity to present his case. At the chambers hearing on 11 September, 2006 neither the Appellant nor his counsel attended. No reasons were given either to the Court or other party. On 2 November 2006, a second opportunity was given to the Appellant to appear. Once again neither counsel nor the Appellant attended. On 16 February at the chambers hearing the Appellant and his counsel again failed to turn up for the hearing. Yet again, no reasons were given.

18. On 28 February 2007 Mr. Morrison wrote to Mr. Daniel about the new hearing dates of 2 and 3 May 2007. He went as far as inviting Mr. Daniel to advise him in good time if there were good and valid reasons why the hearing could not proceed on those days.

19. We are of the view that the trial judge did not wrongfully exercise his discretion under rule 12.9 (1) (c) to "grant leave to the Claimant to proceed with their claim". Given the history of the non-appearance at various Court hearings, it was, in our view, within his discretion to decide to proceed pursuant to rule 12.9 (1) (c).

20. Natural justice is about giving the opportunity to the other party to be heard. The Appellant had been given more than a single opportunity to attend Court and present his case. He persistently failed to do so. In particular the Appellant failed to respond to various letters from Mr. Morrison relating to new hearing dates. And he failed to provide any excuse for his failures to attend Court.

21. In the authorities cited by the Appellant, the appellants had been actively participating in the proceedings. The only time they did not show up was on the date the decisions were made. The Appellant in this case had a long history of failing to attend Court.

22. The cases cited by the Appellant are not authority for the proposition that if a party fails to attend the Court cannot proceed to a hearing. We endorse comments from this Court at the close of the second session in 2006 where we said:-

"The new Court Rules were intended to provide simpler procedures for bringing matters to a conclusion. They were designed to ensure everyone has a proper opportunity to challenge the other side and for the presentation of their own case. The Rules are a means to an end and not an end in themselves."

23. We repeat what this Court said in Coconut Oil Production (Vanuatu) Ltd. v. Tavoa, Civil Appeal Case 16 of 2005. The Court there said at page 2 of its judgment:-

"It needs hardly be stated that, once a firm date had been given for any hearing it is imperative that it be maintained and not overlooked or ignored except with the agreement of the Judge. Counsel do so at their peril."

24. The minimum required on an appeal such as this is for the Appellant and his counsel to file a sworn statement each identifying why they did not attend Court at the various fixtures, including on 2 May 2007. Without such information the Court has no idea why the Appellant and his lawyer failed to attend the various Court hearings and in particular the 2 May hearing. It is not acceptable to try to inform the Court from the bar table.

25. In our view, more than sufficient opportunity was afforded to the Appellant to attend the hearing but he did not make use of such opportunities.

27. On the second ground the Appellant submitted that the Appeal should be allowed because the quantum of the claim was disputed, and the Respondent failed to establish at trial that the vehicle had been sold for a fair market value. The Appellant, in his defence, in the Court below conceded that he was in breach of the Agreement and further that he could not afford to pay the monthly instalments to repay the loan.

28. The evidence before the Court below shows that the vehicle was sold for VT375,000 as fair value for the vehicle.

29. Sakias Boe in his sworn statement dated 27 May 2005 gave evidence that "taking into consideration the damage made to it, the vehicles’ age of over 3 ½ years old, its condition then being operated from Luganville town to South Santo (rural area) and with the road condition, we sold the utility to a third party for VT375,000 which was then, in my opinion, a fair value for the vehicle."

30. Mr. Paul Lenga in his sworn statement for the Appellant gave an estimate of at least VT700,000 as the value the vehicle could be sold at after repair. However, Mr. Boe’s evidence is more detailed as to what was taken into account in his valuation, e.g. age of the vehicle, conditions of roads in the rural area. In our view, it was within the judge’s discretion to accept the more detailed evidence of Mr. Boe. The vehicle was sold by a proper process at arms length. We see no reason to disturb the finding by the trial Judge that VT375,000 was a fair value for the vehicle at that time.

Hon. Vincent Lunabek CJ.
Hon. Ronald Young J.
Hon. Edwin Goldsbrough J.
Hon. Hamlison Bulu J.
Hon. Christopher Tuohy J.

Court of Appeal of Vanuatu

Lui v Westpac Banking Corporation [2007] VUCA 16; Civil Appeal Case 31 of 2007 (24 August 2007)