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Hakwa v Benard [2004] VUSC 58; Civil Case 205 of 2003 (14 June 2004)

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

Civil Case No. 205 of 2003.

BETWEEN:

SILAS CHARLES HAKWA
Claimant

AND:

GUY ALAIN MARCEL BENARD
Defendant

Ms. Hakwa for the Claimant
Defendant in person

SUMMARY JUDGMENT

Background

Between the period from 11th April 1997 to July 1998 the Claimant who is a Barrister and Solicitor practicing law in Vanuatu under the firm Silas Charles Hakwa and Associates provided various legal services in relation to Civil Case No. 30 of 1997 to the defendant upon instructions, agreement and undertaking of the defendant that he would pay the claimant’s professional fees and costs (hereinafter referred to as the “debt”).

On or about 31st July 1998 the claimant submitted his bill of costs and requested the defendant to pay but the defendant has failed and neglected to make any payment.

On or about 3rd August 1998 the claimant and the defendant entered into a written agreement for the payment of the debt owed to the claimant by the defendant.

The claimant wrote on 9th January 2001, 31st March 2003 and 12 November 2003 for the defendant to pay the debt but with no positive results.

On 11th December 2003 the claimant lodged his claim in the Supreme Court. The defendant filed his defence on 28th January 2004.

On 29th April 2004 the claimant applied for summary judgment on the basis that he did not believe the defendant had a real prospect of defending his claim. The court heard the application on 14th June 2004. The claimant submitted that from 11th April 1997 to July 1998 he provided various legal services in relation to Civil Case No. 30 of 1997 and that he acted on the instructions, agreement and undertaking of the defendant that he would pay the debt.

The claimant further submitted that on or about 3rd August 1998 he entered into a written agreement with the defendant for the payment of the debt and that the agreement is a valid and binding agreement. The claimant’s case is purely that it is based on a breach of the agreement. Counsel on behalf of the claimant submitted that the agreement records the intention of the parties in regards to the payment of legal fees and costs of the claimant in relation to Civil Case No. 30 of 1997 and the parties intended that the signed agreement contained all the terms of the agreement for the payment of the debt.

The respondent appeared in person. He submitted that at the time of the making of the agreement he was naïve, did not know the Vanuatu procedures and that the claimant took advantage of his situation. He further submitted the claimant was dishonest and that the agreement is not valid because his consent was vitiated ab initio.

The respondent could not substantiate the allegations of dishonesty and that the claimant took advantage of his situation. He kept on referring to his being “naïve” and “not knowing the procedures in Vanuatu” when he entered into the agreement with the claimant.

The respondent did not dispute the existence of the agreement but attacked the quantum. He submitted that the services provided to him and on his behalf in Civil Case No. 30 of 1997 could not have amounted to VT2,108,000.

The material issue to be considered in my view is whether there is an agreement in place concerning the payment of the debt to the claimant by the defendant for the provision of legal services in relation to Civil Case No. 30 of 1997. The answer to that question is yes. The claimant and the respondent entered into an agreement on 3rd August 1998 for that very purpose. The agreement is called “AGREEMENT FOR THE PAYMENT OF LEGAL FEES AND COSTS”. The essential terms of the agreement are, and I quote:-

“NOW THEREFOR IT IS AGREED AS FOLLOWS:-

1. The client acknowledges and admits the debt.

2. The client agrees and undertakes to pay the debt when a demand therefore is made.

3. The client’s undertaking to pay the debt is irrevocable and shall continue to have effect until such time as any sum of part of the debt owing is fully paid and a written discharge therefore is given by the solicitor.

4. The client agrees that the total debt is VT2,108,000 and undertakes not to challenge either the bill, fees, the account and/or the costs.

5. Any demand made by solicitor for repayment of any part of the debt is valid if it is made in writing.

6. If upon demand made by the solicitor, the client fails to make any payment, the parties agree that the solicitor may apply to the (Magistrate/Supreme) Court and obtain Summary Judgment against the client.”

The provisions of the agreement quoted above are very clear in my view.

Prior to the agreement being entered into the claimant had rendered his bill for payment of the debt in a letter dated 31st July 1998. The respondent did not dispute receiving that letter nor the quantum.

On 30th June when uplifting his file from Messrs. Silas Charles Hakwa and Associates the defendant confirmed his debt in the following words, “I Guy Benard confirm that I have today uplifted my whole file on the above matter from the offices of Messrs. Silas Charles Hakwa and Associates, Port Vila, but at the same time acknowledge that I still owe Messrs. Silas Hakwa and Associates the sum of VT2,108,000 which I am obliged to pay whether upon demand or otherwise.”

On 9th January 2001, 23rd May 2002, 31st March 2003, and 12th November 2003 the claimant had written to the respondent and demanded payment of the debt but received no positive response. No payment was ever made. It is going on 6 years now since the date of the agreement and no payment at all has been made, no objections to the payment of the costs was ever raised with the claimant and no attempts were made to amend the agreement at all.

The defendant did not plead that he was under coercion to sign the agreement. The main thrust of his pleadings is being “naïve” and “not knowing procedures in Vanuatu”. I have listened to the defendant, observed the defendant on his feet and I am satisfied that at the time of the making of the agreement, the defendant was of sound mind and understood what he was doing, particularly what he was entering into when making the agreement. In the agreement the defendant:-

• Acknowledged and accepted that he has engaged the claimant’s services for the purpose of Civil Case No. 30 of 1997;

• Agreed and accepted that he has agreed and undertaken to pay the debt;

• Accepted that the claimant had rendered his bill of fees and costs in the sum of VT2,108,000 (the debt);

• Acknowledged and admitted the debt;

• Agreed and undertaken to pay the debt when a demand therefore is made;

• Accepted and agreed that his own undertaking to pay the debt is irrevocable and shall continue until full payment of the debt is made;

• Accepted and agreed that the total debt is VT2,108,000;

• Agreed and undertook not to challenge the debt or its quantum; and

• Agreed that if he should fail to pay the debt on demand, the claimant is entitled to obtain Summary Judgment against him.

These are clearly spelt out in the agreement. I fail to see any ambiguity. . The claimant had demanded payment of the debt in accordance with the agreement. The demand was made in writing in accordance with the agreement. The defendant refused or failed to make payments accordingly. That in my view is in breach of article 2 of the agreement. The application for the summary judgment was made in accordance with the agreement. The challenge to the quantum of the debt is a further breach of the agreement, particularly articles 4 and 6. The defendant has been in breach of the specific agreement entered into between the claimant and himself. I find for the claimant and accordingly make the following orders:-

1. The defendant to pay the sum of VT2,108,000 to the claimant within 28 days;

2. The defendant to pay interest on the balance of the total sum at the rate of 10% per annum on a daily basis commencing on 3rd August 1998 until fully paid up.

3. The defendant to pay the costs of this application and to be taxed if not agreed.

4. Return date is 13th July 2004 at 2 p.m.

DATED at Port Vila, this 14th day of June 2004.

H. BULU
Judge.