Westpac Banking Corporation v Tabi [2004] VUSC 38; Civil Case 052 of 2003 (17 September 2004)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 52 of 2003

BETWEEN:

WESTPAC BANKING CORPORATION
Claimant

AND:

ANDY BARNABAS TABI
Defendant

Coram: Justice Treston

Mr. Morrison for the Claimant
Mr. Toa for the Defendant

Date of Hearing: 26 August 2004
Date of Decision: 17 September 2004

RESERVED JUDGMENT

CLAIM

In a Supreme Court claim filed on 25 March 2003, the Claimant claimed for VT5, 799, 853 as at 12 February 2003 together with interest and costs pursuant to an Asset Purchase Agreement (the agreement) entered into between the Claimant as a bank and the Defendant as a hirer on 20 September 2000. The agreement was to secure advances of money in the total sum of VT7, 664, 821 made to the Defendant by the Claimant for the purchase of two new public transport motor vehicles together with an amalgamation of two existing loans for motor vehicles operated by the Defendant with the Claimant.

It was alleged that moneys were advanced to the Defendant by the Claimant who defaulted under the terms of the agreement about 8 April 2001. A notice of demand was issued to the Defendant on 14 February 2003 demanding payment of the monies outstanding but the Defendant failed to comply.

In a defence the Defendant denied making any request for amalgamation of the loans, and denied there were any loan monies advanced to him and contended that periodic payments to be paid by him to the Claimant were by way of rental and not interest repayments. He denied that the calculation of moneys had been particularized and alleged that there were no moneys outstanding by him to the Claimant as any payments outstanding were covered by the proceeds of the sale by the Claimants of vehicles outlined in the particulars of claim. He alleged that the Claimant had failed and neglected to mitigate its loss by selling the vehicles at deflated values below their market value. The Defendant contended that there was no debt outstanding as the vehicles were seized and sold by the Claimant.

EVIDENCE

Sworn statements on behalf of the Claimant were filed by May Boe and Monique Stevens.

The Defendant filed a sworn statement which I largely put to one side because the Defendant was not present to verify it or to be cross-examined.

HEARING

The trial date for 26 August 2004 was set on 29 July 2004 in the presence of counsel for the Claimant and for the Defendant. On the morning of the hearing, counsel for the Defendant appeared but the Defendant himself did not appear and counsel could not confirm whether the trial fee had been paid by the Defendant. Counsel for the Claimant initially sought an order that the Defendant was not to participate in the trial (see Rule 4.12 (3) (f) of the Civil Procedure Rules No. 49 of 2002) because of non payment of the trial fee but then conceded that, as the Court administration itself could not confirm whether or not the fee had been paid by the Defendant, he would not pursue that application.

In the event, the Claimant's witnesses were cross-examined by counsel for the Defendant.

FINDINGS

It is clear from the evidence that the Defendant executed the agreement (see annexure "C" to sworn statement of May Boe) which was for new advances over a Toyota Land-Cruiser Registration No. PT3989 and a Toyota Hi-Lux Registration No. PPT97 and which consolidated earlier advances made by the Claimant to the Defendant for two other vehicles, a Toyota Hi-Lux Registration No. PPT80 and a Toyota Land Cruiser Registration No. PPT72.

The defence endeavoured to persuade the Court that the Defendant had been rushed into the signing of the agreement by Monique Stevens but I find on the evidence and from the cross-examination of that witness that had the Defendant requested further time to consider the documents or obtain any legal advice he would have been given that time. The evidence from Monique Stevens for the Claimant was that time was given to the Defendant to read and understand the agreement and to seek legal advice had he requested it. She said that she explained to him the terms and conditions of the agreement and the Defendant was given ample time to read the documentation through and to understand the conditions. To the contrary I find that it was the Defendant who seemed desperate to get the money as soon as possible and who was urging Monique Stevens to get his loan funds advanced quickly so he could complete the purchase of the two vehicles. I accept that evidence on behalf of the Claimant and there is nothing to contradict it. While he addressed those matters in his sworn statement as I have said he was not at Court to confirm that statement or to be cross-examined by the Claimant and no explanation as to his absence could be given by his counsel. No adjournment was sought.

In addition, it was suggested to the Claimant's witnesses that the Defendant could have sold the vehicles independently of the bank to better advantage for him to allow him to pay off the bank loan completely but that the bank had elected to repossess the vehicles and sell them for something less than market value and not to best advantage. However, the evidence of Mary Boe was that the Toyota Hi-Lux was sold after being placed on tender and that the Toyota Hi-Lux was sold as was the other Toyota Land-Cruiser and the monies were applied to the Defendant's loan. It is clear that prior to any sales the Claimant made inquiries about the market price for the motor vehicles. I find on the evidence that the sales were properly effected by the Claimant.

It is clear that in or about September 2003, the Defendant sold the other Toyota Land-Cruiser Registration No. PPT72 without the knowledge of or the consent of the Claimant and although some of the proceeds were paid to the Claimant they were not the total amount received by the Defendant.

It is clear that the monies realized from the sales of the vehicles were insufficient to pay off the Defendant's loan account and I am satisfied on the evidence that as at 12 February 2003 the outstanding balance owing to the Claimant by the Defendant was VT5, 799, 853.

I find that there is no significance in the fact that the Defendant did not request the Bank to consolidate the advances. The Claimant was perfectly entitled to do that and one of the terms of the agreement which the Defendant signed documented that that was taking place.

I also find that there is no significance in the fact that the Defendant denies that any moneys were actually advanced to him. clearly the monies were utilized to purchase the vehicles for the Defendant.

There is also no foundation in the contentions of the Defendant that the calculations were not particularized. That was covered in the annexures to the sworn statement. In addition whatever the payments by the Defendant to the Claimant were called it is very clear that they were not made.

CONCLUSION

I find that the Claimant has proved its claim against the Defendant on the balance of probabilities and there will be judgment for the Claimant against the Defendant for VT5, 799, 853 together with interest on that amount from 25 March 2003 being the date of filing of the claim until date of this judgment.

I award costs to the Claimant against the Defendant at the standard rate as agreed or as determined by the Court together with appropriate disbursements.

Dated AT PORT VILA, this 17^th day of September 2004

BY THE COURT

P. I. TRESTON
Judge