Michel v Galinie [2014] VUCA 33; Civil Appeal Case 35 of 2014 (14 November 2014)

IN THE COURT OF APPEAL OF THE REPUBLIC OF VANUATU
(Civil Appellate Jurisdiction)
CIVIL APPEAL CASE No.35 OF 2014

BETWEEN:

RENAUD MICHEL
Appellant

AND

JOELLE GALINIE
Respondent

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice Bruce Robertson
Hon. Justice Daniel Fatiaki
Hon. Justice John Mansfield
Hon. Justice Stephen Harrop

Counsel: Mr Eric Molbaleh for Appellant
No appearance for Respondent

Date of Hearing: 10 November 2014
Date of Judgment: 14 November 2014

JUDGMENT

INTRODUCTION

1. This appeal is from a judgment of the Supreme Court of 5 September 2014. The judgment was given on an application for summary judgment, and without the appearance of the then defendant Renaud Michel (the appellant) in favour of the claimant Joelle Galinie (the respondent). The court granted the application for summary judgment in favour of Ms Galinie against Mr Michel on the basis that he had no entitlement to be or remain on certain land, and awarded damages for trespass of Vt 400,000 from December 2013 to August 2014 (at vatu 50,000 per month), interest at 10%, and ordered that Mr Michel should remove himself from the property forthwith, and pay costs.
   
2. The Supreme Court proceeding describes Ms Galinie in its title as the daughter of and administratrix of the estate of Emile Galinie deceased. Mr Galinie was the registered owner of certain land at Tebakor, Port Vila. The statement of claim alleged that Mr Michel was unlawfully residing on the land, after Ms Galinie as administratrix of the estate on 26 February 2014 had given him notice that he should no longer stay on the land and requiring him to vacate.
   
3. Mr Michel was represented in the conduct of the Supreme Court action. He filed a defence admitting that Ms Galinie was administratrix of the estate, and that the estate of Emile Galinie included the particular land of which Emile Galinie said she was the owner as administratrix. The defence said that Mr Michel was permitted to reside on the land by Ms Galinie and her two brothers, (and by implication originally by Emile Galinie) so he had not left the land after being given the notice of 26 February 2014. The defence said, but there is no evidence to support it, that the two brothers are the beneficiaries of the estate of the father, and "must have a say in any action to be taken by the claimant". It also denied that Ms Galinie was suffering any loss by reason of him staying on the property.
   

APPLICATION FOR SUMMARY JUDGMENT

4. The application for summary judgment asserted that the defence disclosed no substantive defences. It was adjourned from time to time, on one occasion because it was said by the Public Solicitor on behalf of Mr Michel that he needed further time to file responsive material. The application was supported by a sworn statement of Ms Galinie of 4 July 2014 exhibiting a copy of the Letters of Administration of 4 December 2013 granted by the Supreme Court over her late father's estate, and a copy of her Application for Registration of the transmission of the land to her, made on 30 February 2014, and endorsed as registered on 30 February 2014. It did not deal with the issue of damages.
   
5. That material was sufficient for the Court to be satisfied that Mr Galinie was the legal proprietor of the land, that as administratrix she had terminated any entitlement as Mr Michel might have had to live on the land, and that the land in question was in fact previously owned by her late father and was now under her control as the administratix of his estate.
   
6. Despite the application for summary judgment being listed and adjourned on 7 and 13 August 2014, and then listed for hearing on 5 September 2014, Mr Michel filed no responsive material. His counsel did not attend on the final hearing date.
   

THE APPEAL

7. Mr Michel now appeals from the summary judgment on the ground that it should not have been entered because he was permitted to stay on the land; because his lawyer did not let him know of the date fixed for the hearing; and because the amount of the damages is excessive.
   
8. As we have noted, Ms Galinie did not appear on the hearing of the appeal. It is not clear why.
   
9. In our judgment, the appeal should be dismissed in so far as it complains of the entry of summary judgment against Mr Michel for trespass and the order for him to leave the land. As we have noted above, the evidence in support of the summary judgment application was unchallenged, and was sufficient to support the allegations in the statement of claim (other than on the issue of damages).
   
10. Mr Michel did not take up the opportunity to file any responsive material to resist that application. Nor, on this appeal, did he present any sworn statement about what he might have said in answer to the assertion that he was no longer entitled to remain on the land. His counsel accepted that his entitlement to be on the land was not for a fixed term, and was determinable on reasonable notice. Neither he nor the brothers of Ms Galinie have put forward any evidence to suggest that, in the circumstances, Ms Galinie as the administratrix of the estate of her father is not entitled to have proceeded as she did. We propose to vary the order of the Supreme Court only to the extent of allowing Mr Michel a reasonable time, in this case fixed at 31 January 2015, by which he must vacate the land.
    
11. In our view, however, the appeal must be allowed for the purposes of setting aside the orders awarding damages for trespass and interest on those damages. That is simply because the claim for damages for trespass is an unliquidated claim. Even in the case of a summary judgment, it is necessary that there be coherent evidence upon which the damages may be assessed. There was no such evidence. There was a claim by Ms Galinie in her sworn statement to recover the amount which was ordered, but there was no evidence to support that claim other than her own claim about the loss. That of itself is not evidence upon which those damages could properly have been assessed. She did not present evidence about the terms of the tenancy or occupation previously agreed upon for Mr Michel, nor how much of the land Mr Michel occupied, nor what might have been a commercial rental in relation to that part of the land, nor the circumstances in which Ms Galinie might have been able to (but did not because of Mr Michel's occupancy) have used that part of the land to earn from it. There is no evidence on which the Court might otherwise have been able to assess any loss that Ms Galinie as administratrix of the Estate, had suffered.
    
12. Accordingly, we propose to set aside orders 2 and 3 of the orders made by the Supreme Court on 5 September 2014. We have considered whether the matter should be remitted to the Supreme Court for the purposes of re-hearing the issue as to the amount of damages suffered as a consequence of Mr Michel failing to vacate the property following the notice of 26 February 2014. We have indicated above the sort of evidence which might have been given. We have come to the view, in the absence of any suggestion that such evidence was available, that it is appropriate simply to set aside those orders and not to remit the matter to the Supreme Court for rehearing. We do soon the basis that Ms Galinie was properly advised at material times, and that the evidence which she presented on her application for summary judgment to have damages for trespass assessed was the available evidence upon which she chose to rely. In other words, we have proceeded on the basis that there is no other evidence reasonably available to her upon which she could have relied to properly establish a claim for damages.
    
13. As the appeal has succeeded in part and has failed in part, there should be no costs of the appeal. As the principal relief sought in the Supreme Court proceeding, namely Mr Michel was no longer entitled to remain on the land and for his eviction from it stands, it is our view the order for costs in the Supreme Court should stand.
    
14. There is one further observation which should be made. We refer above to the ground of appeal that it was the fault of the lawyer for Mr Michel and not that of Mr Michel himself that he did not file responsive material in relation to the summary judgment application or appear at the hearing of that application. The Court is entitled to rely on counsel for a party to attend properly to matters involved in the conduct of litigation. In this case, through his counsel Mr Michel had filed a defence and had attended on a number of occasions before the Court on behalf of Mr Michel. On one occasion he had specifically written requesting a further 7 days to file responsive material. In such circumstances, it is not sufficient to make out that ground of appeal simply by saying it, in the absence of evidence by sworn statement of the dealings between the lawyer and the client. The Court otherwise is being invited to make findings on assertions without giving the lawyer the opportunity to respond to them. The Court is entitled to assume, generally speaking, that in circumstances like the present, the lawyer for a party is acting properly. If Mr Michel has any issue about the way in which his matter was conducted by his lawyer, it is a matter that he must take up with his lawyer. The material before the Court on this appeal did not indicate that either the lawyer for Ms Galinie or the Court had any reason to think that Mr Michel was not being properly represented by his then solicitors. We note that counsel appearing for Mr Michel on this appeal is not the same counsel who appeared for him in the Supreme Court proceeding.
    

DATED at Port-Vila this 14^th day of November 2014

BY THE COURT

Vincent LUNABEK
Chief Justice