Vanuatu National Provident Fund v Medic International Ltd [2001] VUSC 30; Civil Case 116 of 2000 (6 April 2001)

IN THE SUPREME COURT

OF THE REPUBLIC OF VANUATU

lass="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> (Civil Jurisdiction)

Civil Case No.116 of 2000

BETWEEN:

VNPF

Plaintiff

AND:

MEDIC INTERNATIONAL LIMITED

Defendant

p class="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1"> Mr. Ronald Warsal for the Plaintiff

Mr. Robert Sugden for the Defendant

JUDGMENT ON SECURITY FOR COSTS

This was an applon by Warsal for the plaintiff in the counter claim taim to pay for security for costs. It is not disputed that the plaintiff in the counter claim is an International Companies. Order 65 Rule 4 and 5 were the basis of the motion filed by the applicant. In the submission by Sugden what he disputed is that the defendant is a company incorporated in this jurisdiction and is a resident and therefore he cannot pay any security for costs. He asks this Court to rule as a preliminary matter on the application itself whether the defendant was a resident.

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To address thee of residency and the defendant being an Internationational Company is for this Court to refer to the International Companies Act for some assistance. Section 1 of the Act where defines person resident in Vanuatu means "a person who ordinary resides in Vanuatu or carries on business from an office or other fix place of business within Vanuatu, and includes a company incorporated under this Act or the Companies Act."

class="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1"> For the purpose of Order 65 Rule 5 and Section 1 of the International Companies Acts Act the plaintiff in the counter claim is a plaintiff ordinarily resides in this jurisdiction, however with consent of both counsels which I accept, that such defendant cannot conduct business in this jurisdiction. This will not make any difference to the status of the defendant under the International Companies Act and as it remains the defendant is an ordinarily resident residing in Vanuatu and by incorporation under the International Companies Act the defendant is a resident.

For these reasons under Order 65 Rule 5 the defendant is a resident and therefore cannot pay security for costs. However this is not the end of the matter. What the plaintiff has submitted is that the plaintiff in the counter claim does not have any property or form of security in this jurisdiction to pay as costs if the plaintiff in the counter claim loses the case. With this submission, I think the plaintiff has a good and valid reason for a good cause and that cause is for security for costs. Therefore, the Court will proceed to hear whether the Court can exercise its discretion to this particular case with its particular circumstances and will hear further submissions from counsels on this issue. As this is an ongoing application I treat this judgment as not complete as of today the 23^rd March 2001.

On further adjournment to the 6^th April 2001 tourt adjourn to consider ther the aspect of whether the Plaintiff in the counter claim, even though a resident, can pay security for costs. In consideration, this Court is of the view that even though being a resident and not entitled to pay costs the Court still have the discretion to go further than that to satisfy whether the defendant has the available means of security in this jurisdiction for costs on the grounds that the plaintiff in the counter claim cannot do business in this jurisdiction but can only have an office. In such situation the Court is of the view that plaintiff in the counter claim can be ordered to pay security for costs in the event that he loses the case.

Security for costs is not a penalty so in other way the plaintiff in t in the counter claim is not deprived in any way.

The amount in the motion filed by the defendant in the couclaim VT2,775,000. This coss costs calculated to including the cost of trial. In maintaining the balance in this application I find to order security for costs at VT500,000 which I believe is a just costs for the plaintiff to pay in the counter claim to the Chief Registrar's Trust Account within 30 days from today. Failure to pay within 30 days the counter claim will be struck off. Costs of this application to the plaintiff to be taxed if not agreed.

Dated at Port Vila, this 6^th day of April, 2001.

R. MARUM MBE

JUDGE.