Berry v Soalo [2006] VUSC 4; CC 071 2000 (1 February 2006)

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

Civil Case No. 71 of 2000

BETWEEN:

NOEL BERRY
Claimant

AND:

ALICK SOALO
Defendant

Coram: Justice Treston

Mr. Toa for Claimant
No appearance of Mr. Kilu for Defendant
No appearance of Defendant

Dates of Hearing: 01 February 2006
Date of Decision: 01 February 2006

JUDGMENT

This matter has had a chequered history. In a Writ of Summons filed on 21 June 2000, the Claimant claimed against the Defendant payment for his property on the land of the Defendant when he was employed as a labourer to maintain, cultivate and develop the land at Erangorango village, Efate and damages for breach of contract. In an assessment judgment of 12 April 2001, Justice Marum found for the Claimant in the sum of VT66,808,016. That assessment was made following "an interlocutory judgment in default on the unliquidated demand". That judgment was entered on 7 August 2000. It was in the absence of the Defendant who failed to appear, that the Court found for the Claimant in the amount above. In an abundance of caution, his Lordship nevertheless considered the Defendant's sworn statement and contrasted it to the Claimant's sworn statement when he made his assessment.

On 21 December 2001, his Lordship made interim orders that the Defendant's interest in leasehold property be charged in favour of the Claimant until payment of the judgment debt was made. This was confirmed in a further judgment 26 February 2002.

The Defendant filed an appeal on 20 August 2002. That was out of time and was never proceeded with because the parties then continued to endeavour to negotiate a settlement.

By order of 6 June 2003, Justice Coventry set aside the judgment sum and thereafter on 13 September 2003, another inspection and assessment under police supervision was organized but proved to be unsatisfactory because there were difficulties in relation to which areas of crops should be counted, and there was conflict between the parties as to this.

A hearing was set for 8 July 2005 and for 31 October 2005 and finally for 1 February 2006.

At the hearing on 1 February 2006, there was no appearance by or on behalf of the Defendant. A notice dated 26 October 2005 as to the hearing was placed in the box of each counsel on that day, but Mr. Kilu did not attend the hearing and, despite a call being made for the Defendant outside the Court room, neither the Defendant nor his family attended.

It also appeared that although the Claimant had paid the trial fee, the Defendant had not. Accordingly, under Rule 4.12 (3) (f) of the Civil Procedure Rules No. 49 of 2002, I ordered that the Defendant was not to participate in the trial.

In addition, as neither the Defendant nor his counsel attended the trial, I ruled that the judgment for the Claimant of Justice Marum of 12 April 2001 be reinstated as to the assessment of damages and I reset the assessment judgment figure in the sum of VT66, 808,016 in favour of the Claimant against the Defendant.

I also awarded costs in favour of the Claimant against the Defendant on a standard basis as agreed or as determined by the Court.

I set an enforcement conference for 8am on 6 March 2006. I now confirm that the Defendant, now the enforcement debtor, is required to come to Court at that time and on that date for an enforcement conference and bring with him sufficient documents to enable him to give a fair and accurate picture of his financial circumstances and financial affairs and how he proposes to pay the judgment debt.

Dated AT PORT VILA on 01 February 2006

BY THE COURT

P. I. TRESTON
Judge