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Iavre v Melcoffee Sawmill Ltd [2001] VUSC 87; Civil Case 025 of 2000 (8 August 2001)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

Civil Case No.25 of 2000

BETWEEN:

LENCY IAVRE

Plaintiff

AND:

MELCOFFEE SAWMILL LTD

Defendant

Date: 8^th August, 2001 at 9:10 a.m

Coram: Before Mr Justice Oliver A. Saksak

Clerk: Ms Cynthia Thomas

Counsels: Mr Hillary Toa for the Applicant/Plaintiff

Mr John Malcolm for the Defendant

RULING

This is an Application for leave to apply out of time to set aside judgment in default dated 25^th June, 2001 pending the final determination of this matter by the Court.

The trial of the Plaintiff’s claims as contained in his specially Endorsed Writ filed on 29^th September, 2000 was fixed by Directions dated 9^th April, 2001. Neither Mr Toa nor the Plaintiff was in Court on 9^th April, 2001. Notice of Conference and Directions hearing on 9^th April, 2001 were issued by the Registrar on 19^th December, 2000.

On 25^th June, 2001 neither Mr Toa nor his client were again present in Court. Mr Toa wrote on 22^nd June, 2001 informing the Registry and other counsels concerned in this and other cases that due to commitments in court in Vila that day, that he would not be available in Luganville for the hearing of this case. Mr Malcolm replied Mr Toa’s letter on the same day putting Mr Toa on notice that he would be coming to Santo on 25^th June, 2001 and that he would move the Court to strike out the writ with costs without prejudice to the plaintiff’s right to re-issue writ if costs were payable within 28 days. Both letters were referred to me. After satisfying myself that the Plaintiff had failed to appear satisfying myself that the plaintiff had failed to appear on 9^th April, 2001, that he failed to comply with the Direction Orders on 9^th April, 2001, and that he failed for the third consecutive time to appear on 25^th June, despite clear notice and intention of the Defendant to proceed in his absence, I ordered that –

1. The Plaintiff’s case be dismissed in its entirety.

2. Costs be fixed at VT145,125.

3. The Plaintiff pays such costs within 28 days.

4. Upon payment of such costs within the time granted, the plaintiff’s writ would be restored.

On 20^th July, 2001 the Plaintiff filed application seeking leave to apply out of time. Mr Malcolm does not take issue with that application. He only opposes the application to set aside orders.

I have heard the submissions made by Mr Toa as to the reasons for non-availability by himself and his client on 25^th June, 2001. I do not accept them as valid reasons for which these orders can be set aside. In my view the Plaintiff’s application is frivolous and vexatious. For those reasons I dismiss the application. I am however inclined to extend the grace period for payment of the Defendant’s wasted costs of VT145,125 by a further 28 days from today, and I accordingly Order so.

The following Directions also apply –

(1) There be discovery within 14 days from the date of this Order.

(2) There be inspection within a further 14 days thereafter.

DATED at Luganville this 8^th day August, 2001.

BY THE COURT

OLIVER A. SAKSAK

Judge

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