Bule v Tabisap [2009] VUSC 51; Civil Case 37 of 2006 (19 February 2009)

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

Civil Case No. 37 of 2006

BETWEEN:

JOSEPH BULE
Claimant

AND:

ROGATIEN TABISAP, JUSTINE TABISALSAL, ELVIS TABIAIRY,
GISLAIN BULEURU, YANNICK TABISALSAL, DANIEL BULEBAN AND CHRISTOPHE BULESAP
Defendants

Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Mr Saling N. Stephens for the Claimant
Mr Kevin Nathan – Agent for Mr C. Tavoa for the Defendants

Date of Hearing and Decision: 19th February 2009

DECISION

1. This matter was scheduled for trial hearing today by Orders dated 10th November 2008.
   
2. Mr Chris Tavoa appeared for the Defendants on 10th November 2008.
   
3. The Court ordered the Defendants amongst other things to:-
   
   • (a) Pay Hearing Fees of VT15.000 as soon as possible. This was paid on the same date.
     
   • (b) Pay wasted costs of VT15.000 jointly.
     
   • (c) Mr Toa to pay wasted costs at VT27.400.
     
   • (d) Payments should be paid before 19th February 2009.
     
4. Today none of the Defendants are present in Court. The Claimant and his witnesses are available in Court Mr Stephens informs the Court that his client had arrived by ship yesterday and he confirms the defendants were not on the same ship. He informs that he is ready to commence trial hearing today.
   
5. Mr Nathan informs the Court that he appears as agent for Mr Tavoa who is on Court Tour in the Torba Province. He requests an adjournment to Monday 23rd February.
   
6. Mr Stephens objects and submits that pursuant to Rule 6.8 the Court has discretion to strike out the Defendants’ Defence and Counter-Claims due to non-compliance with a Court Order at conference.
   
7. The Court accepts Mr Stephens submissions for the following reasons:-
   
   • (a) Mr Tavoa was present on 10th November 2008 and as such he was aware of the directions regarding payments of wasted costs before today. He was also aware of today’s hearing.
     
   • (b) It is apparent that today wasted costs have not been paid by the Defendants and Mr Toa. Mr Nathan indicates his office would pay the total costs of VT42.400 but that Mr Tavoa would be the one to arrange it upon his return.
     
   • (c) There is no reasonable excuse why the Orders of 10th November 2008 have not been complied with. Further there is no reasonable excuse why this trial should be adjourned further, let alone to Monday 23rd February.
     
8. For the above reasons the Court decides that pursuant to its powers under Rule 6.8(2) the Defence and Counter-Claims of the Defendants filed on 18th August 2007 be hereby struck out in their entireties.
   
9. That being so, the Claims of the Claimant stand unchallenged.
   
10. Therefore on the facts put by the Claimants and his witnesses in support of his claims by sworn statements, the Court hereby gives judgment in favour of the Claimant for the following sums:-
    

(i)
(a) Compensation for burning down house	VT900.000
(b) Trespass	VT300.000
(c) Suffering and relocation costs for family	VT126.000
(d) Expenses for rebuilding house	VT500.000
(e) Slaughtering of one sow and 7 unborn piglets	VT70.000
(f) Personal cash money lost of fire	VT150.000
(g) Personal clothing and effects	VT 42.000
(h) Exemplary damage	VT412.000
Total	VT2.500.000
(ii) Filing and Service Fees	VT24.000.
(iii) Wasted Costs ordered on 10th November 2008	VT42.400.
(iv) Other costs of and incidental to this action.
(v) Interests fixed at 4% per annum from December 2006 to the date of final settlement of the judgment by the Defendants.

DATED at Luganville this 19th day of February 2009.

BY THE COURT

OLIVER A. SAKSAK
Judge