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SCAP Unlimited v Thomson [1997] VUSC 18; Civil Case 054 of 1997 (4 July 1997)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

CIVIL CASE No. 54 OF 1997

BETWEEN:

SCAP UNLIMITED
Plaintiff

AND:

MARCUS THOMSON
/b>First Defendant

AND:

VICKI THOMSON
Second Defendant

Coram: Mr Justice Oliver Saksak

Counsel: Mr Jonathan Baxter-Wright for the Plaintiff
Mr Juris Ozols for the First and Second Defendant

JUDGMENT

The First and Second Defendants applied to this Honourable Court by way of a Summons (General Form) under Order 57, R.13 of the High Court (Civil Procedure) Rules 1964. The Summons is dated 16th May 1997 and filed in the Court Registry on the same day returnable on 22nd May 1997 pursuant to the orders of this Honourable Court dated 19th May 1997. On 22nd May the Summons was further adjourned as there were indications that parties would reach settlement failing which the matter came before the Court for a full hearing commencing on 23rd June 1997 and ending on 24th June 1997.

The Defendants sought the following orders from the Court:-

(a) That the ex-parte orders of 16th May 1997 be vacated.

(b) That the action against the Second Defendant Vicki Thomson be struck out as failing to disclose any cause of action.

(c) That the Plaintiff be restrained from taking any steps to remove the First Defendant from his residence as Tuku Tuku Ranch or interfering in any way in his management of the Ranch.

(d) That the Plaintiff pay the Defendants costs on a full indemnity basis in respect of the application.

The chronology of events giving rise to this application are that on 15th May 1997 the Plaintiff obtained ex-parte orders pursuant to Order 57 Rule 2 of the High Court (Civil Procedure) Rules 1964 as follows:-

(a) Freezing all bank accounts in the name of C & T Cattle.

(b) Freezing all bank accounts held in the name of the First and Second Defendant.

(c) Commanding the First Defendant to surrender all passports to the Court.

(d) Restraining the First Defendant from leaving the jurisdiction of the Court until further order.

On the 19th May 1997 Consent Orders were obtained as follows:-

(a) That the Summons filed by the Defendants on 16th May 1997 to be adjourned.

(b) Orders made on the 15th May 1997 remain same and except the following:-

(i) The Bank of Hawaii be authorised to accept deposits into the C & T Cattle account.

(ii) The Bank of Hawaii be authorised to release Vatu 300,000 for C & T Cattle Account payable by cheque to "BP" for fuel.

(iii) The Bank of Hawaii be authorised to release US$500-00 from the Defendants account with it (or its equivalent in other currency)

(c) Matter was relisted for mention on 22 May 1997.

(d) There was liberty to apply on 24 hours notice.

On 22nd May 1997 the Court made the following Orders:-

(a) That all orders made ex-parte on 15th May 1997 should remain in force until 23rd June 1997.

(b) The matter including the summons was set down for hearing on 23rd June.

(c) Further affidavits were to be filed by both parties on 16th June 1997.

(d) Both parties had liberty to apply within 48 hours notice.

The Defendants now seek to have these Orders vacated. In support of their application Counsel for the Defendants rely on the affidavit of Mr Marcus Thomson, the First Defendant. Mr Ozols made both written and oral submissions. In his written submissions Mr Ozols refers the Court to Vanuatu Case Law which contain general principles for injunctive relief. The cases are Best -v- Glenelg [1980] 1 V.L.R. 27, Wilson -v- Lini [1980] 2 V.L.R., 483 and Deamer v Unelco [1992] 2 V.L.R., 554 These principles are well set out in Deamer -v- Unelco by His Honour Justice Charles Vaudin d’Imécourt, CJ when he said at page 557:

"I take this opportunity to give certain guidance to the Bar of Vanuatu. They would all do well to remember that Ex-parte applications for injunctions should only be made when there is a real need for it. There should always be affidavits and writs or originating summons in support. The Court will only grant them if satisfied that an emergency does exist. There will be a short return date, when the whole of the evidence will be gone into and all parties will be heard. Undertakings as to costs and damages will always be asked for and in some instances even security for the same will be ordered to be paid into Court."

Mr Ozols submitted that the evidence now before the Court discloses that the Court has been substantially misled. I have difficulty in accepting that submission because when counsel for the Plaintiff sought leave to read the affidavit of Mr Latimer filed on 23rd June 1997, Counsel for the Defendants objected on the grounds that (a) it was filed out of time and (b) that it contained fresh evidence. Counsel for the Defendants referred the Court to paragraph 972 of Halsbury’s Laws of England to support his objection. In that regard, I ruled that the affidavit of Mr Latimer could not be admitted into evidence for the purposes of deciding this matter. In any event the issue of disclosure has already been ruled on in my judgment of the 22nd of May and I need not rule on it again.

Mr Ozols also submitted as follows:-

(a) That there was no evidence of indebtedness on the part of the First Defendant to the Plaintiff to justify the granting of the injunction.

(b) That there was no real threat that Mr Thomson was about to leave the Country with no intention of returning.

(c) That an injunction is only granted if the alleged debtor has no assets within the jurisdiction.

The Plaintiff sought to cross-examine Mr Thomson on his affidavit. Without going into too much detail, the evidence shows that Vicki Thomson, the Second Defendant received the sum of Vatu 1,310,000 which should have been paid into the C & T Account but was not.

The First Defendant conceded that it was a mistake which was not intended. Mistake it may have been but the reality is that the money is not now where it should have been.

Again the First Defendant conceded that on 4th December 1996 the sum of Vatu 23,000 was mistakenly expended and not accounted for. Further, that on 16th May 1997 the sum of Vatu 46,000 was mistakenly expended and not accounted for. These are debts and the amount does not matter.

On the second submission regarding leaving the jurisdiction of the Court, I find that in the evidence before me the First Defendant has plans to leave in September 1997 but intends to extend his stay to assist in the sale of the property. In his evidence Mr Thomson told the Court that he did not believe he had informed the Crow Family about this plan. I agree that the element or requirement of emergency does not exist but I would go further to add that where the Court feels that there is a possible risk shown by the peculiar circumstances of the case, the Court may grant the injunction. I find that to be the case here.

The third submission is in regard to the First Defendant’s assets within the jurisdiction. Evidence shows that the First Defendant has assets in Vanuatu. Again due to the peculiar circumstances of this case I find the risk of absconding high and that is the reason why the injunction should remain in place.

I have also to consider whether or not the continued existence of the injunctions would be oppressive or would entail irreparable or serious mischief to the Defendants.

Mr Baxter-Wright told the Court that SCAP, being the Plaintiff has substantial amount of property around Efate and that SCAP has more than enough assets to meet any claims of the Defendant. This amounts to an undertaking as to costs and damages given expressly by the Plaintiff’s counsel in the recital to the Ex-Parte Orders dated 15th May 1997.

In his evidence Mr Thomson told the Court in answer to questions put by Mr Baxter-Wright that he is the owner of the business known as Thomson Expedition. Although the bank accounts in relation to that business are frozen, the business itself is not injuncted in anyway and would still be operating to the advantage of the Defendant.

Similarly the Court has been told that the First Defendant is owner of the business known as Thomson Game Fishing Limited. Again the bank accounts of this entity are frozen but the business itself would be still operating to the advantage of the Defendants. Finally concerning this issue, the Defendants have been given liberty to apply back to the Court within 48 hours notice. The purpose of having this right in an ex-parte Order is allow the parties to a proceeding to invoke the jurisdiction of the Court to vacate any of its orders which may be rendered harsh or oppressive by circumstances of the parties. But the party applying must show to the satisfaction of the Court that damage or injury is in fact sustained or existing. There is no evidence before me to show that the First Defendant is suffering any damage as a result of the continued existence of the ex-parte Orders.

The final point to consider is whether or not there exists a dispute between the parties to warrant the continued existence of the ex parte orders of this Court. This is a somewhat simple issue to answer. I have only to ask myself: Are they pleadings? The answer is yes. A Specially Endorsed Writ of Summons issued on 15th May 1997 was filed on the same date by the Plaintiff. There is a Defence and Counter-Claim dated 18th June, 1997 filed by the First and Second Defendants on 19th June, 1997.

Without going into the details of the parties claims and defences, it is clear from the Defence and Counterclaim that there are issues between the parties to which they are not in agreement. As long as those issues remain unresolved between the parties either out of Court or in Court, it is my opinion that the Defendant cannot come before the Court with his prayers to have the orders of the Court vacated.

Having said all that, I now make the following orders:-

(1) That all Orders made Ex-Parte by this Honourable Court on the 15th day of May 1997 shall remain and continue to remain in force until further orders of the Court.

(2) That the parties are at liberty to apply within 48 hours notice.

(3) That the parties are to seek further directions from the Court within 48 hours.

(4) That the Summons of the First and Second Defendants is dismissed.

(5) The costs of hearing this Summons be awarded to the Plaintiff to be taxed if not agreed.

DATED at Port Vila this 4th day of July 1997.

BY THE COURT

OLIVER A. SAKSAK J.
JUDGE