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Evans v European Bank Ltd [1999] VUSC 53; Civil Case 85 of 1999 (27 September 1999)

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

Civil Case No. 85 of 1999
Consolidating Company Case No. 8 of 1999

BETWEEN

ROBB EVANS of ROBB EVANS & Associates
Intended Plaintiff

AND

EUROPEAN BANK LTD
Intended First Defendant

AND

BENFORD LTD
Intended Second Defendant

Coram: Before Mr. Justice Oliver A. Saksak

Counsel: Mr. Mark Hurley for the Intended Plaintiff
Mr. John Ridgway for the European Bank Ltd
Mr. Kalsakau for the Nominee Directors of Bendford Ltd
Mr. Jack Kilu for the Attorney General as an Interested Party
Mr. Juris Ozols for Vanessa Clyde as an Interested Party

JUDGMENT GIVING REASONS FOR ORDERS

On 22nd September 1999 two applications were made orally before me. One application was made by Mr. Hurley for an Order declaring that on the information available before the Court by way of affidavit evidence, the Law Firm of Geoffrey Gee & Partners were not and are not authorized to represent Benford Ltd in these proceedings and should accordingly be terminated from so acting.

Mr. Kalsakau orally applied seeking an adjournment for reason that he had only been served with the documents in relation to that hearing on that same morning prior to hearing. There were a total of five affidavits filed by the Plaintiff in addition to that of Mr. Evans. He submitted that as the funds in question were subject already to a freezing order there was no urgency to proceed in the manner taken by the Plaintiff.

Having considered these submissions I granted a short adjournment to Mr. Kalsakau to receive further instructions. The hearing was adjourned to two o'clock in the afternoon of that same day. Mr. Ridgway was excused due to other commitments that he had as his attendance was not necessary as the issue of representation of Benford Ltd did not concern or involve him. Mr. Kilu attended the hearing on behalf of the Attorney General as an Interested Party at the direction of the Court at the request of the First and Second Intended Defendants. Mr. Ozols attended on instructions from Vanessa Clyde the person as named as beneficial owner of Benford Ltd.

After hearing all counsel, I issued the following Orders:-

(1) That the Application by the Second Intended Defendant for an adjournment be refused and dismissed.

(2) That Messrs. Geoffrey Gee & Partners be forthwith terminated as legal representative of Benford Limited.

(3) That Mildrew Nominees and current nominees of Benford Ltd pay the Plaintiff's cost of and incidental to this application.

(4) That there be no Orders directing Mildrew Nominees to implement Annex "I" of Vanessa Clyde affidavit.

REASONS

Firstly in relation to Order (1), Mr. Kalsakau told the Court that afternoon that on obtaining his client's instructions that they had serious reservations as to who the beneficial owner of Benford Ltd was or is, and indicated that his clients wished to have more time to file affidavits in response. He further indicated that his clients were prepared to attend Court for any cross-examination. He told the Court about the telephone conversations he had had with Mr. Ozols concerning the issue of legal representation and other related issues. He referred the Court to paragraphs 10 and 11 of Vanessa Clyde's affidavit especially concerning her express denial of knowledge as to the founding of Benford Ltd. That the instructions to open Bank Accounts came from one "Iven Burgess". For those reasons Mr. Kalsakau submitted that it was necessary for an adjournment.

It is important for the Court to clarify that the issue as to who the beneficial owner of Benford Ltd has not yet been decided. That issue will be decided upon when the Court determines the Plaintiffs Originating Summons and this is due to be heard from Wednesday 17th November 1999. The first issue for the Court to determine was whether or not there was valid reason for the Second Intended Defendant to seek an adjournment. In my view there was not. Mr. Kalsakau told the Court that his clients were prepared to be cross-examined. It is interesting to note that his clients were not available in Court in the afternoon of 22 September 1999 as they easily could have done. The Plaintiff had three deponents of their affidavits flown in from United States and if the Second Defendant's directors were not prepared, contrary to what their Counsel told the Court, to make themselves available in Court whilst residing in Vanuatu, then they are really not prepared to do anything at all. And as long as they are allowed to do nothing, all we have is delay and costs to the parties who are prepared to proceed.

Secondly in relation to Order (2) Geoffrey Gee & Partners have been acting on behalf of Benford Ltd since 2nd September 1999. The issue of representation arose when by facsimile letter dated 14th September 1999 Vanessa Clyde who is named as the beneficiary of Benford Ltd in paragraph two thereof states that she "has not authorized, engaged or provided any instruction to Geoffrey Gee & Partners to represent Benford Ltd..."
I did not accept that statement then because the letter was addressed directly to the Judge which is highly improper, and further that it was not evidence formally admitted before the Court.

However when Vanessa Clyde deposed to an affidavit sworn and filed on 22nd September 1999, paragraph 10 repeats her position that she has not authorized Geoffrey Gee and Partners to act for Benford Ltd. That affidavit has been read into evidence and it remains unchallenged. The nominee Directors of Benford Ltd for whom Geoffrey Gee & Partners now represent have not been able to avail themselves before the Court to give evidence to the contrary and until such time as they do, the Court must now accept that Geoffrey Gee & Partners have not been authorized by Vanessa Clyde to act for her or Benford Ltd. In the circumstances, it follows that the proper course of action for the Court to take was to terminate Geoffrey Gee & Partners' engagement as legal representative of Vanessa Clyde and Benford Ltd.

Thirdly in relation to Order 3 in regard to costs being ordered against current Nominee Directors of Benford Ltd, it was proper and just to do so. The Second Intended Defendant brought on an application and failed. It follows that they must meet costs. Further the issue as to legal representation in my view was capable of settlement out of Court. Lawyers are officers of the Court and as such it is important that in matters of this nature lawyers put on their best endeavors to have issues settled out of Court. Where that fails and the matter has to come to the Court as here, it follows that those who are put to unnecessary expense be recompensed for their costs. So it is with this case.

Fourthly in relation to Order (4) it was premature for the Court to Order Mildrew Nominees to implement Annexure "I" to Vanessa Clyde's affidavit. There were two reasons behind that ruling: firstly that as Ms Clyde now had proper legal representation any application for such Order should properly come from that Counsel and not Mr. Hurley who represents the Plaintiff. Secondly, I have indicated earlier in this judgment that the Court has not yet decided on the issue of who the beneficial owner of Benford Ltd is as that is reserved for the hearing of the Originating Summons. In that circumstance it was appropriate that the Court not grant any Orders in relation to the Order sought by Mr. Hurley.

PUBLISHED AT PORT-VILA, this 27th DAY of SEPTEMBER, 1999

BY THE COURT

OLIVER A. SAKSAK
Judge