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Malere v Maltape [2006] VUSC 22; CC 185 2002 (13 April 2006)

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

CIVIL CASE No.185 of 2002

BETWEEN:

KANISI MALERE
First Claimant

AND:

ADRIEN MALERE
Second Claimant

AND:

SHADDRACK SETH MALTAPE
First Defendant

AND:

SOCIÉTÉ SOWI-LEING LIMITED
Second Defendant

Mr Saling Stephens for the Claimants
Mr John Malcolm for the First and Second Defendants

JUDGMENT

This is a claim for account under Rule 16.9 of the Civil Procedure Rules of 2002 against the First and Second Defendants. The period of the account sought is from 15 April 1996 to the date of winding up of the Defendant’s Company on 18 March 1998.

The following constitute the relevant facts:

The First Claimant’s husband and the Second Claimant were some of the shareholders of the Second Defendant, Société Sowy-Leing Limited of Port-Vila. This was before 1987.

In March 1987, the Company, Société Sowi-Leing Ltd ceased trading and was subsequently wound up.

On 8 November 2002, Mrs Kanisi Malere, wife of the deceased Aimé Malere, filed a claim seeking for money against the First and Second Defendants, the amounts of which are to be assessed. On 12 December 2003, the Court granted leave to Mrs Malere to file an amended claim for account. On 18 December 2003, the Claimant filed her amended claim for account including:

(a) General damages of .................................... VT21,300,000
(b) Exemplary damages of ................................. VT15,000,000

On 14 May 2004 accounts were ordered and completed by BDO Barrett and Sinclair. The accounts show a net deficit in 1997 of VT8,611,740. Although no discovery of documents were obtained, the Claimants required further accounts on providing further documents.

An addendum (additional) account was completed on 28 October 2004 amending the net deficit to VT8,570,073. This amendment of accounts was made in the format required by the Rules.

In June, November and December 2004, the Court adjourned the proceedings at the requests of the Claimants to provide their own accounts in an attempt to establish there was no such a deficit but a net asset.

On 24 March 2005, the Second Claimant, Mr Adrien Malere, became a party and issued a claim seeking:

(a) VT3,601,500 shares;
(b) VT10,000,000 good will;
(c) Restoration; or
(d) VT10,000,000 for exemplary damages.

Various counsel were involved in the proceedings at varying stages on behalf of the First and Second Claimants. Mr Saling Stephens is the current counsel for both Claimants on the record.

There were no accounts provided by the Claimants. The Claimants issued a series of questions and provided various other undiscovered documents. The questions were answered or objected to and the hearing on the same completed.

The following are the findings of the Court:

The questions and answers are considered. There is nothing in the questions and answers which in any way effect the accounts provided by the First and Second Defendants. Further, there is and was at no stage any accounts provided by the First and Second Claimants which in any way dispute the accounts provided by the Defendants.

I have read and consider the submissions of both counsel. I consider the submissions of counsel for the Claimants and I reject them as they are not relevant to a claim for order of accounts and as such they will not assist the Court. They are rejected in their entirety.

I accept the Defendant’s submission that:-

(a) There is nothing to dispute the accounts;
(b) The accounts show a deficit as at winding up of VT8,570,073.

Conclusion

I conclude and declare that as at the date of Winding up the accounts were in a deficit position of VT8,570,073.

ORDER

1. The claim for accounts is therefore dismissed.

2. The matter is adjourned for conference on the outstanding claim of the First and Second Claimants on Tuesday 25 April 2006 at 4.30PM o’clock.

3. The costs are for the Defendants. They are to be agreed or determined.

Dated at Port-Vila this 13th day of April 2006

BY THE COURT

Vincent LUNABEK
Chief Justice