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Cap Quiros Ltd v Kalmet [2002] VUSC 74; SC 033-01 (10 October 2002)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

Civil Case No. 33 of 2001
Judgment No. 37 of 2001

BETWEEN:

CAP QUIROS LIMITED

First Plaintiff

AND:

FRANK GALLO

Second Plaintiff

AND:

MICHAEL KALMET

First Defendant

AND:

CROWN TIMBERS LTD

Second Defendant

AND:

LEIGH PERIC

Third Defendant

AND:

DIRECTOR OF FORESTRY

Fourth Defendant

Coram: Mr Justice Oliver A. Saksak
Ms Cynthia Thomas – Clerk

Mr Daniel Yawha of Counsel for the Plaintiffs
Mr Kiel Loughman of Counsel for the Fourth Defendant
No Appearances for or by the First, Second and Third Defendants

ORDER

Upon a Notice of Motion filed by Mr Yawha returnable today 10th October, 2002 seeking Orders restraining the properties of the Defendants from being sold or removed from Olpoi Village, West Coast Santo, and for costs. None of the First, Second or Third Defendants have entered any Appearances and/or Defences. None of them are present personally in Court today although services were effected on 8th and 9th October, 2002 in Port Vila.

Mr Michael Kalmet confirms service by his letter of 9th October 2002 but seeks an adjournment due to short notice to instruct counsel.

I refuse his application for an adjournment. The Plaintiffs filed their Writ on 20th August 2001. The Defendants were all served but only the Second and Fourth Defendants put in Appearances and Defences. The Plaintiffs took out judgment by default on 11th October 2001. It is on this basis that I refused Mr Kalmet’s application for an adjournment. I grant leave to the Plaintiffs to proceed with their Application today and abridge the time required for service.

Upon the Plaintiffs undertaking as to damages, and upon hearing Mr Yawha and reading the affidavits sworn by Mr Peter Bong and Mr Michael Kapalu, and for the reasons given above, I hereby grant the following Orders:-

(1) The properties listed in the schedule to this Order be restrained from being tampered with sold, and/or removed from their present location at Olpoi Village, West Coast Santo by the Defendants themselves, their Agents and/or Representatives, relatives and families until further Order of this Court.

(2) This Order be served on the Commissioner of Police who are hereby authorised to enforce the Order in the event of a breach.

(3) The Defendants have liberty to apply to set aside these Orders on 48 hours notice to the other Parties.

(4) For the avoidance of doubt, these Orders do not apply to the Fourth Defendant herein.

(5) The First, Second and Third Defendants must pay the Plaintiff’s costs of and incidental to today’s application.

Upon further hearing Mr Kiel Loughman on the issue of the Fourth Defendant’s counter-claim against the Plaintiffs herein and upon hearing Mr Yawha in response, it is further directed that –

(1) The Plaintiffs file and serve defences to the Fourth Defendant’s counter-claim within 14 days from the date hereof.

(2) The Fourth Defendant will file responses (if any) by way of affidavits within a further 14 days thereafter.

(3) The Registrar will allocate a hearing date after 28 hours from today and notify all Parties accordingly.

(4) Costs to be in the cause.

DATED at Luganville, this 10th day of October, 2002.

BY ORDER OF THE COURT

OLIVER A. SAKSAK

Judge

SCHEDULE

List of Properties of the First, Second and Third Defendants

1. 1 Boat including its motor engine serial No.GW6550.

2. 1 Loader Serial No.450.

3. 1 Sawmill Serial No.68A – 06480.

4. 10 pellets of sawn timber all stacked together.

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