Matariki v Vanuatu National Provident Fund [2002] VUSC 15; Civil Case 087 of 2001 (8 March 2002)

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)

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VANUATU NATIONAL PROVIDENT FUND

(Defendant)

AMENDED JUDGEMENT

On 13^th January 2000 the defendants, the Vanuational Provident Fund Board oard (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 2000 the Board re-entered and took possession of the leased premises 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.

class="MsoBoMsoBodyText" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1"> The plaintiffs claim that those items inms included their personal possessions and the first plaintiff, Mrs. Matariki, claimed property, physiotherapy equipment, used in her work was also included. The personal items have been returned, except for a few objects which are currently being resolved.

lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Mrs. Matariki iualified physiotherapist. She had worked for many years at Central Hospital. She decided 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 physrapy equipment belongs to M 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 overseas. Mrs 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 returned. Despite much correspondence between lawyers, the black box was only first mentioned in court at the trial.

I accept the evidence of Winnie Matariki and Daniel Philips. I found them both toonest 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 van many particulars an and appeared to be claiming a greater knowledge of events than he could have had.

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I find was an agreement between Mrs. Matariki and Medic whereby Medic purchased the physiotysiotherapy 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.

ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> I am satisfied tuch was the length of the withholding of possession that she had no alternative but but to 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.

It alls to fix the damages. By early September she was making a profit after expenses anes and 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 September to 31 December her lost profits are

81 ( working days) x 5= Vt 860,625

1 January to 31^st January = 22 working days. Mrs. Matariki accepts she would have spent only half her time at her private practice in order to do the VFF 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.

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

22x10,625 ÷ 2 = Vt 116, &nbssp;&nnbsp;&nsp; &nsp; 875 VFF payment =100,000

Vt216,875

er lost profit for four hour 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.

The total sum for lost profits is therefore

5 September – er – 31 December 2000 – 860,6pan><<

1 J Januaranuary - 31^st January 2001 &nnsp;&&nsp;;&nspp; 2s6,8756,875

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Time spent attempting repossession 5,313

1,082,813

Less Mitigated loss ;&nbssp; &nsp; &nsp;  p; &nnsp;&&nsp; &nbp; &nbbp;&nnbp;& &nn &bsp; &bsp; &&nbp;; &nnsp;& sp; sp; ; 120, 706

span lang="EN-GB" style=tyle="font"font-size-size: 12.: 12.0pt; 0pt; font-family: Times New Roman"> T Total lost profit &nnbsp;;&nspp;&nsp; &nsp; &&nbp;; &nnsp;& &nbp; &nbp; &nnbp;&&nbssp;&nnbsp;;&nbsp &nbbsp; =VT 962, 107

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Mrs Matariki’s counsel acce 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.

I find the plaintiff cannot do better tter 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$ 5,0955,095 X 75 &&nsp;;&nspp;&nssp; = Vt 382,200.span>

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ass="ass="MsoBodyText"Text" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1"> I will judgment for this sum. It . 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.

The plaintiff, on vidence had not actually paly 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.

pting a steady build up, shp, she repaid 43 X 1,328 = Vt. 57,104. (From 1^st July to 5^th September there were 9 weeks and 1 day, less three public holidays gives 43 working days).

Therefore by 5/9/01 the plaintiff owed Medic

Vt 382,200 – 57,104 = Vt.3.325,096 for the equipment.

The Board have judgment against Medic 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 Bthe Board to the first plaintiff is therefore

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p class="MsoBoMsoBodyText" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1"> The plaintiffs claim party and party coty 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.

The defendants argued that each 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 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 have greatly assisted the defendants 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 fors for return 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.

sup>th September the the Court 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 not seek 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.

I therefore enter judgment font for the plaintiffs in the sum of Vt.1,344,307 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. 1,019,211 plus costs.

p class="MsoBoMsoBodyText" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1"> ed at Port Vila this 19th day of December 2001

as amended by Court Order on 8^th March 2002

R.J. COVENTRY

Judge