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Dinh v Kalpoi [2005] VUSC 10; Civil Case 019 of 2003 (4 March 2005)

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

Civil Case No. 19 of 2003

BETWEEN:

DINH VAN TU
Claimant

AND:

CHARLIE KALPOI AND NOEL KALUATMAN
Defendants

Coram: Justice Treston

Mr. Malcolm for Claimant
Mr. Blake for Defendants

Date of Hearing: 22^nd February 2005
Date of Decision: 04^th March 2005

RESERVED JUDGMENT AS TO QUANTUM OF CLAIM

CLAIM

In a Supreme Court claim filed on 12 February 2003, the Claimant claimed against the Defendants a total of VT26, 504,228 together with VT5 million for earlier termination of an agreement in relation to a joint venture agreement for the development and sale of land at Pango.

A default judgment was entered for the Claimant against the Defendants on 15 May 2003 but was set aside on 27 August 2004 when the claim for VT5 million was dismissed by consent. On 27 August 2004, the Defendants admitted liability for work performed for them by the Claimant and liability for money advances made by the Claimant to them (both subject to proper proof). On that date judgment was entered for the Claimant against the Defendants subject to proper proof at a quantum hearing. That quantum hearing took place on 22 February 2005.

EVIDENCE

The Claimant filed a sworn statement as to damages on 27 September 2004 and was cross-examined at the hearing.

One of the Defendants Charlie Kalpoi filed a sworn statement on 29 October 2004 and also filed a sworn statement by one Christopher Sulis in support. Both Mr. Kalpoi and Mr. Sulis were also cross-examined at the hearing.

In his sworn statement, the Claimant deposed that he owns a business called Entreprise Dinh Van Tu which is a contracting company. He said that he entered into an agreement with the Defendants for the development of 30 hectares of land in the Pango area of Vila. Mr. Tu said effectively that he was to clear the property, subdivide it and sell it. From the sale price he was to get 33%, 33% was to go to his company to pay the bank loans referred to and 33% was for the Defendants.

Mr. Tu said that in anticipation of sales he made advance payments to the Defendants and employed a number of their family. He annexed schedules and receipts for such payments and advances. He also annexed accounts for his time and the costs of machinery totalling VT24, 646, 000.

Under cross examination, the Claimant first said that he cleared all 30 hectares of the land but then conceded that he had only cleared blocks on the outside along the escarpment in the area where sections were to be used. However he said that he cleared more than 80% of the total land.

Mr. Kalpoi in his sworn statement denied entering into any agreement with the Claimant in relation to the development. He said that he acknowledged that the Claimant did carry out some clearing work on the land and that the Defendants were obliged to pay the reasonable value of the work he had carried out. He denied that the charges claimed for clearing work were reasonable and he relied upon the sworn statement of Christopher Sulis setting out a more reasonable basis for quantifying the value of the work undertaken.

Mr. Kalpoi denied in his sworn statement the responsibility for paying VT5,300,000 and claimed that he did not request the Claimant to advance moneys and denied any indebtedness to the Claimant at all . He acknowledge that there had been occasions when the Claimant had advanced money to him or to Mr Kaluatman but that those advances where not related to the development of the land and no agreement had been reached between the parties in relation to the terms of repayment of any such advances. He denied that there was any responsibility for repayment .

Mr. Kalpoi referred to his custom ownership of the land and the arrangements he had made with others.

Mr Kalpoi in summary said that he denied that he was indebted to the Claimant except for the reasonable work that he had undertaken on their behalf.

Under cross-examination Mr. Kalpoi said that around 2000 he as custom owner commenced negotiations to develop the land in question and that the Claimant had agreed first to remove all the squatters amounting to fifty families. The Claimant negotiated with squatters but was unsuccessful in removing them, and the squatters remained while the Claimant was clearing land. The clearing work went on for about one year and then an injunction was issued by the Court on the application of other potential custom owners halting the clearing of the land. That Court order stopped work for approximately one year. The case was resolved by an order from the Court that any money from the development of the land would be paid into Court pending resolution of customary ownership.

Mr. Kalpoi conceded that the Claimant in clearing the land had employed members of his family and acknowledged that the Claimant had given the Defendants some money but that any money that he had received or Mr. Kaluaatman had received had been signed for. Mr. Kalpoi conceded that machinery had been used on land by the Claimant but that in total the Claimant had only cleared about 60% of the escarpment area of the land around the outside.

Mr. Christopher Sulis in his sworn statement said that he was shareholder and manager of Seaview Holdings Limited whose business involved among other things land clearing and road construction. Mr. Sulis said that in about February 2002 he was approached by George Winslett a director of Figures 100% Pur Fun Limited to carry out land clearing and road construction on the land. He said that the land at that stage was all heavy vegetation and no sign of any clearing .

Mr. Sulis said that he used a D8, D6, grader, loader, road roller, PPR water truck, and took 3 months to complete the full work at a cost of approximately VT12 million including his establishing roads, trenching, clearing, quarrying, and final finishing of roads.

He said that he estimated the cost to clear the area cleared by the Claimant was approximately VT 1.4 million and said that the cost claimed for clearing work undertaken by the Claimed was totally unrealistic based on the work carried out by him to date.

In evidence Mr. Sulis said that when he started the work in February 2002 the centre of the plateau was dark bush or jungle although on both sides over looking Erakor and the main wharf there had been clearance . He said that he took 3 months to complete clearing of the land and that 3 months was spread over a twelve month period. He again said that the area that he recognised as having being cleared earlier would have taken a month to complete.

Under cross examination Mr. Sulis said that half of the whole area of 30 hectares seemed to have been earlier cleared and he gave estimations of the hireage of JCV backhoe at VT6000 per hour and D6 at VT9000 per hour.

SUBMISSIONS

Counsel for the Claimant submitted that he accepted that the onus was on Claimant to prove his case on the balance of probabilities. He submitted that the evidence placed before the court and the Claimant's sworn statement had not been disputed and that only the sworn statement of Mr. Kalpoi contended that the advances made by the Claimant were gifts. It was submitted on behalf of Claimant that Mr. Sulis had come along one or two years later after the Claimant made his clearance of the property and thus there was a gap of some years between when the work had been done. He said that the Claimant was prepared to accept the hireage figures given by Mr. Sulis of VT6,000 for the JCV's and VT9, 000 per hour for the D6 bulldozer.

The Claimant was prepared to forego his claim for the management and administration fee and the contract by hand for 20 men on page 52 of the exhibits to his client's sworn statement and to limit his claim to a reduced hireage for the machinery together with the advances which were acknowledged by signature taking a total of 17.681.000 Vatu.

On the other hand, counsel for the defendants submitted that the claim should be based on a fair value for the work done and that the area cleared was the escarpment area alone. The basis of the claim for hireage of equipment was still based on an excessive amount of time for the work done and according to the evidence of MR Sulis the whole area could have been cleared in one month as opposed to 12 months.

Counsel for the Defendant submitted that there was no evidence about the nature of the work undertaken, and no evidence as to precisely what was done so the evidence was too uncertain for the court to base a ruling upon and the only appropriate independent evidence was from Mr Sulis. Any salaries must be part of the overall cost and could not be charged for on an extra basis to the work done. It was submitted that a sum of VT1,4000,000 for the clearance work would be appropriate.

As to the advances, there had been no evidence given of the basis upon which moneys were advanced to the Defendants nor upon what terms nor under what repayment arrangement There was no evidence that demand had ever been made for repayment and acknowledged advances by the Claimant to the Defendants totalled in the vicinity of VT2,000,000.

It was submitted that a maximum sum of VT3,4000,000 was all that the claim merited.

FINDINGS

Although the evidence given by the claimant was relatively short I found that I accepted his evidence on the whole except for the time involved in the clearing work.

On the other hand the evidence of Mr Kalpoi was unimpressive. He was unwilling to answer questions directly or expeditously. My view was that he was an unreliable and evasive witness.

As to Mr. Sulis, he gave no evidence about his length of experience as a contractor involved in land clearing and road construction. As far as the court was aware this job could have been his first when he was approached by Mr. Winslett in 2002. Although he gave evidence about the work that he completed this was unhelpful in relation to a comparison with the work which the claimant had done particularly as it is well known in this climate that regrowth is rapid. In addition there was a period of years in between the clearing work undertaken by Mr Tu and the work subsequently undertaken by Mr. Sulis which was no doubt made easier by the earlier work.

It is my view that having seen and heard the witnesses I am satisfied on the balance of probabilities that the claimant cleared 75% of the total land and that a proper figure for total clearance work amounts to VT8,967,000. That is made up as follows, allowing for a two month period for the whole work and calculating hireage at the rate suggested by the defence witness to which the Claimant agreed: -

Two JCB's for 60 days x 8.5 hours

x VT6, 000 per hour each = VT6, 120, 000

One D6 Bulldozer for 60 days x 8.5 hours

x VT9, 000 per hour = VT4, 590, 000

One Tractor Slasher (as claimed) for 20 days

x 8.5hours x vT3, 800 per hour = VT646, 000

Management fee for two months

(VT3, 000 per month as claimed) = VT600, 000

---------------------

VT11, 956, 000

However, as I have said above, I find that only 75% of the land was cleared so that the figure must be reduced by 25% which leaves a figure of VT8, 967, 000 as above.

A careful analysis of the exhibits to the Claimant's sworn statement reveals that advances totalling VT1,612,000 were acknowledged by the defendants, and I am satisfied on the balance of probabilities that that sum it is now due owing to the claimant. I am unpersuaded by the Defence submission that the claimant has failed to prove the terms of the advance or dates of repayment. It is clear from the documentation that the monies were advanced.

The Defendants took upon themselves the consequences of discontinuing to deal with the claimant and arranged for someone else to carry out the clearing work on the land. It is my view that the defendants must now pay for the work undertaken by the claimant and also for the advances made to them. I am not persuaded that the Defendants should not have to pay until the customary ownership of the land is settled. It is my view that the monies are now due and owing by the Defendants to the Claimant.

QUANTUM

I accordingly fix the quantum of the Claimant's judgment against the Defendants in the sum of VT10,579,000.

COSTS

I award costs to the defendants on the standard basis as agreed or as determined by the Court in due course and a date will be advised to the parties on the delivery of this judgment for costs to be fixed if necessary. I also direct that the date for the fixing of costs can also serve as an enforcement conference when the terms for repayment of the judgment debt can be finalized.

Dated at Port Vila, this 04^th day of March, 2005.

BY THE COURT

P. I. TRESTON
Judge