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Marango v William [2004] VUSC 56; Civil Case 035 of 2003 (11 June 2004)

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

Civil Case No. 35 of 2003

BETWEEN:

JOHN BERRY MARANGO
Claimant

AND:

JEAN WILLIAM
Defendant

Coram: Justice Treston

Mr. Daniel for the Claimant
Mr. Nakou for the Defendant

Date of Hearing: 27 May 2004

REASONS FOR ENTRY OF JUDGMENT AND OTHER ORDERS

CLAIM

The Claimant in this action sought enforcement against the Defendant of two written agreements concerning his purchase of a Poppy red Tata Hyundai bus Registration No. B3879 ("the bus"). The Defendant was in financial difficulty with the Westpac Banking Corporation ("the bank") who had repossessed the vehicle.

The first agreement was dated 26 November 2001 and the Claimant paid the Defendant Vt165, 000 and the Defendant uplifted the bus from the bank and gave it to the Claimant who was to operate the bus and pay Vt20, 000 per month to the Defendant which sums were to be deducted from the sale price. The Defendant was to be responsible for the bus licence and road tax and the Claimant was to be responsible for insurance. Both parties were to be responsible for damage to the bus.

A further agreement dated 3 June 2002 confirmed that the Claimant had paid to Defendant VT591, 128 of the sale price leaving an outstanding balance due of VT208, 878. The Claimant paid a further VT180, 000 in June and September 2002 leaving a balance due of VT28, 872.

The Defendant then improperly seized the bus from the Claimant on 3 December 2002. The Claimant had to pay the bus licence fee and the road tax of Vt60, 512 and the Defendant failed to pay for his half of the damage amounting to VT257, 629 or to honour the agreement of 3 June 2002 and made other misrepresentations as to the total of the debt owing on the bus.

Thus the Claimant brought an order for performance of the agreements, repossession of the bus and recompense for damages sustained by the bus from December 2002 to the date of repossession of the bus. The Claimant had also paid out a further VT356, 800 in addition to the agreement.

The Defendant filed a defence and counterclaim, a reply to the counterclaim was filed, and thereafter counsel for the Defendant filed a notice of ceasing to act. The Defendant failed to attend various conferences and took no further steps and judgment was entered against the Defendant for the Claimant on 6 February 2004.

Counsel for the Defendant then received further instructions and applied to have the judgment set aside and on 28 April 2004, judgment was set aside. The Defendant was ordered to pay costs and security for costs by 26 May 2004 and was ordered to file sworn statements in reply by 12 May 2004. The Defendant failed to pay the costs by the due date, failed to pay security for costs by the due date and failed to file any sworn statements. As a result his defence and counterclaim were dismissed, and judgment was again entered for the Claimant against the Defendant whereunder the bus was to be transferred to him and the Claimant was ordered to pay the repair costs for the period that the Defendant had had possession of the bus.

From the defence point of view, the case was characterized by tardiness and non appearances and despite been given the opportunity to remedy his defaults, the Defendant declined to do so and then failed to comply with Court orders as to costs, security and filing of statements.

It was clear on the sworn statements of the Claimant that he had paid considerable amounts to the Defendant to perform the agreements. The Defendant had repossessed the bus and had failed to pay his share of damages sustained by the bus prior to the bank repossessing it and had failed to pay the bus business licence and road tax and had failed to honour the agreement. The Defendant had misrepresented the amount outstanding on the loan and the Claimant was forced to spend further moneys for repairs and road and business licence commitments and finally the Claimant was put to considerable expense to satisfy the loan to the bank and had properly performed his part of the agreement between the parties.

For all those reasons judgment was entered for the Claimant against the Defendant on 27 May 2004 in terms of the orders of that date.

Dated AT PORT VILA, this 11th day of June 2004

BY THE COURT

P. I. TRESTON
Judge