Clements, Re; Ex parte Hong Kong and Shanghai Banking Corporation [1988] VULawRp 6; [1980-1994] Van LR 331 (18 March 1988)

[1980-1994] Van LR 331

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 15 of 1988

RE: GEOFFREY BRUCE CLEMENTS
and ANNE PATRICIA CLEMENTS
(Debtors)

EX PARTE:

THE HONG KONG AND SHANGHAI BANKING CORPORATION
(A Creditor)

Coram: Chief Justice Cooke

Counsel: Mr G Rissen for Debtors/Defendants
Mr P Coombe for Creditor/Plaintiff

JUDGMENT

[BANKRUPTCY AND INSOLVENCY - PRACTICE AND PROCEDURE
- application for adjournment]

Mr Coombe, Counsel for the Creditor stated that on the 23rd June 1986, the defendant, the above Geoffrey Bruce Clements and Anne Patricia Clements, not having appeared to a Writ of Summons nor having delivered a defence, it was adjudged that the Creditor recover against the said defendants VT3,794,237 and VT20,000 costs.

In spite of this default judgment, no action was taken by the defendants or was any approach made to the Creditor.

A Writ of Fi-Fa was taken out on the 31st July 1986, more than a month after the default judgment. No return was made to the Fi-Fa.

On the 7th September a walking possession agreement was signed by the parties which, due to unsatisfactory performance, the Creditor on the 29th January 1988 requested the issue of a Bankruptcy Notice and which was issued the same day by the Court. This was served on the defendants without any result by either of them.

All steps necessary by the Creditor were complied with without any action by the defendants. The debt is an old one. Nothing was heard from Mr Rissen who appeared for the defendants and could have easily phoned Mr Coombe's office and explained any difficulty he experienced. "No call or notice of any kind was given to me, said Mr Coombe, by Mr Rissen, that he contemplated seeking a postponement of this matter until he appeared before the Court this morning and so stated." Mr Coombe further strongly opposed any such adjournment as every opportunity was given to the defendants to seek an adjournment but not even a telephone call was made to him by the defendants. I have in cases such as this to consider the question of hardship and inconvenience of a litigant who has performed all his duties without response from the other party until the very last point of time when an adjournment is sought. Yes, the Court has a discretionary power to grant such an adjournment but in my opinion, it would be quite wrong at this stage to grant such an adjournment even though Mr Rissen contended that a Constitutional interpretation may arise on whether the Bankruptcy Act applied to the defendants. These were matters of which the defendants or their Counsel must have been aware of for some time, yet no action was taken to notify Mr Coombe of such possible submissions until the morning of the application before me.

In so far as the Creditor is concerned, the procedure adopted by him is correct. More than adequate time has been given to contest the matter yet nothing has been done.

All references in this Judgment relate to the matter before me at the time Counsel for the defendants applied for a postponement.

No written documents of any kind were filed in the Court or served on Counsel for the Creditor.

How possibly the Court was expected to deal with matters of which it had no notice is beyond comprehension.

The natural and logical sequitur to allow the application would be to open the door to abuse in spawning and countenancing an unbridled licence for legalised breach of one or more of the defined procedures.

I think that, perhaps understandably, Counsel for the defendants thought that the Court had greater discretionary power which is not intended or envisaged, and that he submitted to this effect as he could not do otherwise in the circumstances.

I have dealt with the question of delay in matters such as the present case in my judgment - Michael Brenner -v- Boyd and Lilian Johnson and Andre Naturel, Civil Case No. 98/85 and those views stand and I repeat what Sir Cresswell said in Ratcliffe -v- Barne (1862) 2 SW & Tr. 486 & 487:-

"The general principle is this, that where a party has had full notice, and has had the opportunity of availing himself of the contest, he will be bound by the decision."

Accordingly, Receiving Orders are hereby made against Geoffrey Bruce Clements and Anne Patricia Clements and costs to the Creditor.

18 March 1988

FREDERICK G. COOKE
CHIEF JUSTICE

[Editorial Note: This matter went on appeal and is reported at C.A. 2/88]