Matariki v Vanuatu National Provident Fund [2001] VUSC 119; Civil Case 087 of 2001 (19 December 2001)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

HELD AT PORT VILA

(Civil Jurisdiction)

Civil No. 87 of 2001

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BETWEEN:

WINNIE MATARIKI

DANIEL PHILIPS

(Plaintiffs)

class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> AND:

VANUATU NATIONAL PROVIDENT FUND

(Defendant)

JUDGMENT

p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> On 13^th January 2000 the defendants, the Vanuatu National Provident Fund Board (the Board), signed a lease agreement with Medic International Limited (Medic) for the lease of one and half floors of the Board’s building, (the premises). Dr. Michael Roland-Evans signed on behalf of Medic. The intention of Medic was to use the premises for a medical centre and a Bible college and other religious purposes.

On 5^th September 200 Board re-entered and took possession of the leased premiseemises as Medic had failed to make payments under the lease agreement. At that time the possessions of Medic and many people were on the premises. These possessions were listed and taken to the upper floor so the ground floor could be relet.

Mrs. Matariki is a qualified physiotherapist. She haded for many years at Central Hospital. She decided toed to set up privately in the leased premises at the invitation of Medic, namely Dr. Roland – Evans. She started work there in early July. Her practice ceased with the repossession on 5 September. Since that time she has sought return of the physiotherapy equipment. The Board has refused to hand it over. Eventually, with the help of the Vanuatu Football Federation (VFF) she purchased replacement equipment.

The Board alleged the physiotherapy eqpy equipment belongs to Medic. The order for it is in the name of Medic. They have seen no document in any way suggesting Mrs Matariki is the owner or entitled to possession. Mrs. Matariki, in evidence, stated the equipment was ordered by Dr. Roland-Evans as he was able to obtain substantial discounts. The agreement between her and Dr. Roland-Evans was that she would be the owner of the equipment and repay him over time out of the profits from her practice. She said payments had already been made in cash to Pastor Basil Hopkins, who was running Medic in the absence of Dr. Roland-Evans over Mrs Mata Matariki stated she kept her records in a black box like file. This was seized and held by the Board on 5 September and has not been returDespite much correspondence between lawyers, the blac black box was only first mentioned in court at the trial.

I t the evidence of Winnie Matariki and Daniel Philips. I found them both to be honest nest and reliable and doing their best to recollect accurately all these events. There was no tendency to exagerate or inflate the claim. I also accept the evidence of John Timakata the defence witness. As a result of the default by Medic he was left with a very difficult situation. He was anxious to return personal possessions but equally anxious to ensure they went to the right people. It is clear as far as the physiotherapy equipment is concerned he was acting on the advice of the Board’s lawyers.

I do not find I can place reliance on the evidence of William Malas. He was vague in many particulars and appeared to be claiming a greater knowledge of events than he could have had.

I find there was an agreement between Mrs. Mai and Medic whereby Medic purchased the physiotherapy equipment for her to obtain favourable discounts. She had commenced repayments to Medic when the premises were seized on 5^th September 2000. She was entitled to immediate possession of the items and was refused it by the Board.

I am satisfied that such was the length of the withholof possession that she had no alternative but to obta obtain replacement equipment. This she was in a position to do by the end of January 2001. I accept that following the seizure of her equipment she was unable to carry out her work, save for minor treatment. Further, she was unable to take up a position as physiotherapist to the VFF from 1^st January 2001 at a salary of Vt. 120,000 per month as she had no equipment.

lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> It now falls to fix the damages. By earlyember she was making a profit after expenses and equi equipment repayment of Vt. 10,625 per day. She accepts this built up from nothing, when she started. It is reasonable to expect her profits would have continued at that level for a five day working week, excluding public holidays and weekends. There is no evidence of weekend work. The period from 5^th September to 31^st December 2000 is therefore 81 days.

Accordingly for the period 5 Septemb 31 December her lost profits are

81 ( working days) x 10, 625= Vt 860,625

Mrs. Matariki accepts she would have spent only half hee at her private practice in order to do the VFF work work. She only claims for the lost VFF work to the end of January. The VFF were to pay vt 120,000 per month. Some allowance must be deducted from that for the use of equipment and expendable items. I fix that at vt.20,000.

cordingly for January 2001 2001 Mrs. Matariki’s lost profits were

22x10,625 ÷ 2 = Vt 116, ;&nbssp; 8sp; 875

VFF payment nbsp; =00

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Vt216,875

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an lang="EN-GB" style="font-size: 12.0pt; font-family: Times New Roman"> Her lost prof profit for four hours work spent pursuing the return of the equipment is not challenged as Vt5,313. The mitigating earnings over the period are also agreed as Vt 120,706.

p class="MsoBoMsoBodyText" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1"> The total sum for lost profits is theretherefore

5 September - 31 December 2000 - 860,625

1 January - 31^st January 2001 - & p;&nssp;&nsp; &nsp; 216,8pan>s/p>

Time spent attempting repossession &nbbsp; 5,313

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1,082,813

Less Mitigated loss &&nsp;;&nspp;&nssp; &nbp;  p;&nssp;  p; &nbp; &nbp; 875<,span>

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"> To Total ltal lost post profit &&nsp;;&nspp;&nssp; &nbp;  p;&nssp;  p; &nbp; &nbp; ;&nbppp;&nbbsp;5t.865/u>

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Mrs Matariki’s counsel accepts she is entitled to the fair market value of the equipment as at September 2000. He argues that should be the figure it cost her to replace it in 2001 as she could not obtain the discount that was obtained via Medic. The defendants’ counsel opposed this.

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I the plaintiff cannot do beto better than the original purchase price of the equipment in setting a fair market value. Deducting the two items that were not received from the Medic Invoice, P.2, and using a mid- point conversion rate to the Australian dollar of Vt 75, the new cost in value of the equipment with the discount was A$ 5,095 X 75 = Vt 382,200.

I will give judgment for this this sum. It is generous to the plaintiff in that the original new price as paid is accepted and between July and September the plaintiff would have used many of the expendable items in the equipment.

class="MsoBoMsoBodyText" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1"> The plain on her evidence had not acot actually paid this sum, or anything like it to Medic. She had paid, she says, 20 % of her profits as they built up from the start in July to 5^th September. Her counsel accepted an even build up of profit. If Vt10,625 was her daily profit after paying 20%, then in September she was making equipment repayments of Vt 2,656.

Therefore by 5/9/01 the plaintiff owed Medic

Vt 382,200 – 57,104 = Vt.325,096 for the equipment.

class="MsoBoMsoBodyText" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1"> The Board have judgment against Medic forc for a sum in excess of Vt.325,096. Accordingly I stay execution in this case against the Board in respect of that sum.

The total amount immediately payable by the Board to the first plaintiff is therefore Vt. 865,938 plus Vt57,104 = vt 923,042.

The plaintiffs claim party and party costs to 7^th September or 9^th October 2001 and thereafter costs on a solicitor and own client basis. They say after one or other of those dates it was absolutely clear there was no defence to the action. Indeed, the defendants’ correct course from the outset was to commence inter- pleader proceedings.

class="MsoBoMsoBodyText" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1"> The defendants argued that each party should bear its own costs. They say had the first plaintiff told them at an early stage of the box with all her documents in they could have found it and properly assessed the claim.

The plaintiffs have in real terms recovered less than the Magistrates Court limit. However, if the value of the items returned during the trial and the market value of the physiotherapy equipment is added in then this takes it over the limit. In any event, given the nature and value of the original claim and the course of events I find the matter was properly brought in the Supreme Court.

It would havetly assisted the defendantsdants had the plaintiffs individually or through their lawyer brought to the attention of the defendants the existence of the black file of documents. However, the plain fact is the defendants were in possession of goods to which they could make no claim of ownership or possession. They were aware of two competing claims or potential claims, one from Medic and one from Mrs. Matariki. It would have been quick and inexpensive for them to file inter-pleader proceedings. They did not.

The plaintiff’s original claim was for return ourn of the equipment. As late as May 2001 the plaintiff was willing to accept return of the equipment. Soon after that, to take up her job with the VFF, she abandoned that claim and sought the market value of the retained equipment. I have found that was an entirely reasonable course.

class="MsoBoMsoBodyText" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1"> On 7^th September the Court reqt required the defendants’ lawyers to look carefully at their position in law. On 9^th October the issue of inter- pleader proceedings was specifically mentioned by the Court. Throughout the pre-trial conferences the defendants lawyers were urged to consider carefully the law in relation to the facts, even as asserted by the defendants.

I do not know and I do not seek to e to enquire into what was the defendants’ lawyers’ advice and what were their clients instructions. By 7^th September the claim had changed from one for return of equipment to one for the value of that equipment. The defendants were entitled to resist the claim for the value of the equipment. However, that circumstance should not have come about. Therefore I will award party and party costs to the plaintiffs up to and including 9^th October. Thereafter I award solicitor and own client costs to the plaintiffs.

It is not for the Court to diro direct arrangements between a lawyer and his client. However, it would appear that the defendants acted on the advice of their lawyer in the actions they took. It is a matter between them as to who actually pays the various sum due in legal costs in this case.

I therefore enter judgment for the plaintiffs in the sum of Vt.1,248,138 together with party and party costs to and including 9^th October and thereafter solicitor and own client costs. I stay execution concerning Vt. 325,096 giving a sum payable of Vt. 923,042 plus costs.

Dated at Port Vila this 19^thup>th day of December 2001

R.J. COVENTRY

Judge