|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATUCIVIL JURISDICTION
CIVIL CASE No. 44 OF 1998
<
BETW>BETWEEN:
Dr. M KAZACOS
of C/- Juris Ozols & Associates,
1st Floor Lolam House Port Vila, Vanuatu.
PlaintiffAND:
PACIFIC INTERNATIONAL TRUST COMPANY LIMITED
of International Building, Kumul Highway, Port Vila, Vanuatu.
Defendant
Coram: Acting Chief Justice Lunabek J.
Counsel: Mr Juris Ozols for the Plaintiff.
Mr Garry Blake for the Defendant.JUDGMENT
This is a Summons issued under Order 57 Rule 13 of the High Court (Civil Procedure) Rules. On 30 September, 1998, the Plaintiff sought inter alia, for an order that the Defendant pay to the Plaintiff the sum of AUD$105,000 the property of the Plaintiff and currently held by the Defendant.
The Plaintiff, Dr. Michael Kazacos is the beneficiary of certain trust funds held by the Defendant, Pacific International Trust Company Limited ("PITCO").
The Plaintiff files a sworn Affidavit of 30 September 1998 in support of the Summons.
It transpires from the Plaintiff’s Affidavit evidence that the Plaintiff was a client of the Defendant and the Defendant held certain funds on his behalf. Those funds were firstly frozen and then released pursuant to various Orders of this Court. Certain of those funds were thereafter repaid to the Plaintiff by the Defendant. The Defendant has retained an amount of AUD$105,000 as a reserve against future costs. A copy of a letter of 10 July 1998, annexed in "A" of the Plaintiff’s Affidavit contained the detailed of the transactions.
The Plaintiff’s Affidavit further shows that the National Crime Authority of Australia, ("N.C.A.") had completed their investigations of the Plaintiff’s Accounts by May 1997 as evidenced in a copy of a letter of 22 May 1997 from the N.C.A. annexed in "B" of the Affidavit. The Plaintiff further deposes that there are no investigations or any other proceedings being conducted by the N.C.A. of Australia in respect to him.
The Defendant PITCO files no Affidavit but proceeds by way of submissions by Counsel.
For the purposes of this Summons, it is agreed by both parties as follows:
The Plaintiff deposited his funds to the Defendant and the Defendant held the funds on his behalf. The funds were at one stage subject to investigations by the National Crime Authority of Australia. They were frozen and then released by orders of this Court in February 1998. Some of the Plaintiff’s funds were paid to him by the Defendant and some are still retained by the Defendant. The relationships between the parties are based on a written agreement: Nominee Account Opening Form.
The Issue for the determination of this Court is whether the Defendant has a right to retain the Plaintiff’s funds of AUD$105,000.
In essence, the Plaintiff by Counsel submits that Dr. Kazacos has terminated his instructions to the Defendant. The amount of AUD$105,000 retained by the Defendant should be paid to the Plaintiff. That money is not spent by PITCO. There is no evidence, no affidavit filed nor any suggestions that the money is now spent by the Defendant. It is then appropriate for the Court to make an order that PITCO returns AUD$105,000 to the Plaintiff.
The Defendant says in substance that they retain the amount of AUD$105,000 because they have incurred some costs. They anticipate to incur further costs. The Defendant relies on the following Clause of the Nominee Account Opening Form:
"Your charges for services performed under this agreement are to be in accordance with your published schedule of Fees in effect from time to time and they are accepted by the principal, who shall be responsible for all expenses, taxes and other charges or liabilities incurred by you in connection with this account, and you are hereby authorised to charge this Account therefore..."
Further, the Defendant says, the N. C. A. does not say in its letter annexed in "B" of the Plaintiff’s Affidavit whether it has still investigated the Accounts. They say the letter is the evidence that this could be for any Account and they submit they are entitled to be indemnified for the costs incurred.
They further say they are not applying for security for costs since they hold that fund and that they are concerned that the fund be removed from the jurisdiction. Therefore they say in this case status quo be maintained until the substantive issue be determined in December 1998.
The Plaintiff by reply relies on the following Clause of the Nominee Account Opening Form:
"These instructions may be cancelled at anytime by the principal upon receipt of written notice to the other ...
In the event of these instructions being terminated by the principal, you shall make every reasonable effort to deliver within 30 days the cash and securities belonging to the principal or to a designated bank, broker or nominee as directed by the Principal."
In support of this, the Plaintiff says there were various written notices of demand by him to the Defendant PITCO for the return of his funds.
This is a case where the Defendant PITCO says they have a right to retain an amount of AUD$105,000 of the Plaintiff Account to pay for the future costs to be incurred in connection with the Plaintiff’s funds. The Plaintiff has terminated his instructions as principal to the Defendant Nominee sometime in February 1998. Both parties are bound by the terms of their written agreement: Nominee Account Opening Form.
The Plaintiff/Principal by this agreement is responsible for all expenses, taxes and other charges or liabilities incurred by the Defendant/Nominee in connection with the Plaintiff’s Account.
The Defendant/Nominee, upon the instructions being terminated by the Plaintiff/Principal shall make the reasonable effort to deliver within 30 days the cash and securities belonging to the principal as directed by him (Plaintiff).
The Defendant PITCO says they have incurred expenses in connection to the Plaintiff’s fund and they anticipate to incur further costs in future.
By contract between the parties, the Defendant PITCO has a right to charge on the Plaintiff/Principal’s Account all expenses, taxes and other charges or liabilities incurred by them in connection with the Plaintiff/Principal Account.
The expressions "... expenses, taxes and charges or liabilities incurred ... in connection with the principal’s Account..." should be interpreted to mean: "... expenses, taxes and charges or liabilities incurred" until the relevant time the Plaintiff/Principal had terminated his instructions and including subsequent expenses incurred by the Defendant as to reasonable effort by them to deliver the cash and securities belonging to the Principal as directed by him.
There is no clause or provision in the Nominee Account Opening Form for future costs to be incurred and to be paid out of the Principal’s Account after he had terminated his instructions to the Defendant Nominee. The Plaintiff/Principal should be entitled to the return of his money to be paid to him by the Defendant.
However, as it transpires from the Court files this summons was filed on 30 September 1998 at the same time with a Writ of Summons attached with a statement of claim in respect to the disputed fees charged and/or to be charged by the Defendant PITCO. The arguments and submissions of Counsels were based also on the substantive issue as pleaded in the statement of claim. I form the view that this summons deals with issues which are interrelated with the substantive issues as pleaded in the statement of claim and therefore, justice in this case, requires that the status quo be maintained pending the determination of the substantive issues.
The Order of the Court is as follows:
1. That the Defendant PITCO shall pay into the Supreme Court Trust Fund the amount of AUD$105,000 within 7 days as from today 7th October 1998 failing which the status quo regime be automatically cancelled/vacated and the amount of AUD$105,000 be paid by the Defendant to the Plaintiff forthwith.
2. That the Defendant PITCO shall pay the costs of this proceedings to be taxed failing agreement.
Dated at Port Vila, this 7th day of October 1998.
Vincent LUNABEK
Acting Chief Justice
PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/vu/cases/VUSC/1998/68.html