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Dinh v Gosh [2003] VUSC 49; Civil Case 031 of 2003 (1 September 2003)

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

CIVIL CASE No. 31 of 2003

BETWEEN:

DINH VAN THAN
T/A Dinh G. Shipping
Plaintiff

AND:

AMARENDRA NATH GOSH
Defendant

Mr. Felix Laumae for the claimant
The defendant is not present

JUDGMENT

This is an application by the claimant’s lawyer for an Enforcement Warrant against the defendant and his proprieties. The defendant does not reside in Vanuatu but overseas. He does not have any proprieties or assets of any kind in Vanuatu.

At the first conference, the Court queried as to whether the claimant and his lawyer are aware that any complications may arise for the claimant of the enforcement of a judgment if obtained against the defendant who lives overseas and resides overseas and has no assets in Vanuatu. Counsel for the claimant seems to be ready to take the risk. The action proceeds after service of the Supreme Court Claim outside Vanuatu obtained and issued.

The defendant files no defence to the claim.

A default judgment was issued against the defendant for the fixed amount as set out in the claim with costs on 19 June 2003.

An Enforcement Order was issued on 1^st July 2003. At this stage of the proceedings, there is no question about the power and jurisdiction of the Supreme Court of Vanuatu to enforce the judgment in Vanuatu. The question starts to be raised when on 4 August 2003, the claimant’s lawyer filed a written application for an Enforcement (Order) Warrant against the defendant in the following foreign jurisdictions:

• Bangkok, Thailand;
• New South Wales, Adelaide, Australia;
• Countries of European Union; and
• Countries of Commonwealth.
  

The Enforcement (Order) Warrant seeks to authorize the Registrars and Sheriffs of the Supreme Courts and High Courts of the above-mentioned countries/states to, among other matters, enter, seize and place charging Order in the name of the claimant against proprieties owned by the defendant or his nominees and any annuities; debentures, shares, stocks bonds and other marketable securities; interest in managed investment schemes; and units of shares or marketable shares in any company, business and schemes in Thailand, Australia, European Union and Commonwealth countries.

A sworn statement of the claimant, Dinh Van Than, dated 4 August 2003 was filed in support of the application.

The sworn statement does not show or provide any factual material of the existence of any reciprocal arrangements between Vanuatu and the foreign jurisdictions referred to above for the purpose of the enforcement of Vanuatu judgments in those countries.

Vanuatu judgments can only be enforced in Vanuatu unless specific arguments/arrangements are made for the Vanuatu judgments to be enforced in those specific foreign jurisdictions. It is part of the claimant’s counsel’s duty to make enquiries as to whether or not and/or how a local judgment can be enforced in foreign jurisdictions before initiating a claim against a defendant who lives/resides overseas and has no assets in Vanuatu.

The claimant’s application of 4 August 2003 seeking to have the judgment enforced against the defendant who lives and resides overseas and has no property or asset in Vanuatu, must be refused and is hereby refused.

There is no order as to costs.

DATED at Port-Vila this 1^st day of September 2003

BY THE COURT

Vincent LUNABEK
Chief Justice