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Miller v National Bank of Vanuatu [2005] VUSC 122; CC 187 2002 (26 October 2005)

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

CIVIL CASE No. 187 of 2002

BETWEEN:

JOHN DICK MILLER
Plaintiff

AND:

THE NATIONAL BANK OF VANUATU
First Defendant

AND:

ASSET MANAGEMENT UNIT
Second Defendant

Mr Hillary Toa for the Respondent/Claimant
Messrs Wade Roper & Collin Leo for the First Defendant
Mr George Boar for the Second Defendant

JUDGMENT

This is an application to strike out the proceedings in Civil Case No. 187 of 2002 in toto.

The application is brought before the Court on the first date of trial. The claim was listed for 4 days trial.

The essence of the claim in CC 187 of 2002 is that the Defendant National Bank of Vanuatu (NBV) mismanages an account of Vatu 270,000 belonging to the Claimant. That amount was paid into the Claimant’s company “Pelekoma Construction” as part payment of the contract price for the construction work undertaken by the Claimant’s company. The money was paid into the Company‘s Bank account held by the Defendant Bank.

The Claimant’s Company Account was used by the Claimant to facilitate the repayment of a loan account the Claimant had with the Bank in 1994.

The Bank withhold the amount of Vatu 270,000 toward the repayment of the Claimant’s loan totaling VT2,200,000 to which the Claimant defaulted.

By doing so, the Claimant’s company could no longer operate as it had no sufficient liquidity to pay for its workers/employees and it relied only on the contract money to operate.

Consequently, the Claimant’s company because of its liquidation, ceased to operate.

In 1997, the Defendant Bank issued proceedings against the Claimant seeking the Court to order the sale of the Claimant’s matrimonial home which is mortgaged by the Bank as the guarantee for the Claimant’s loan. On 27 April 1999 Mr Justice Oliver Saksak issued Orders empowering, among other matters, the Bank to sell the matrimonial property of the Claimant because of his defaults and subsequently his Lordship issued Writ of possession on the said property.

It is said that the Claimant then defendant informed His Lordship Judge Saksak that he had a counterclaim against the claim of the Bank in CC 163 of 1997. It is said Justice Saksak rightly advised the then Defendant now Claimant in Civil Case No. 187 of 2002 to file a separate claim as he was going to issue Orders in the terms he did on 27 April 1999.

The Claimant then filed his action which is the present Civil Case No. 187 of 2002. He claims for:

(a) An order setting aside the transfer of the Mortgage of the Second Defendant;

(b) An order setting aside the Writ of execution;

(c) The sum of 8,568,000 Vatu damages being 555,000 Vatu expenses incurred in project plus 7,900,000 Vatu for successful tenders plus 113,000 Vatu for loan repayments;

(d) Less of earnings in the sum of 5,000,000 Vatu expenses incurred in project plus 7,900,000 Vatu for successful tenders plus 113,000 for loan repayments.

(e) General damages.

(f) Interest.

(g) Costs.

The claim was managed throughout to the setting of the trial dates for 3 days. There is no prospect by the parties of any application to strike out the proceedings. The Court directed the parties to pay their respective trial fees in accordance with the Civil Procedure Rules.

On the First day of trial, the Defendant Bank applies to have the proceedings struck out. The Court adjourned the application to allow other parties to respond to the application.

On 26 October 2005, the application was heard.

Counsel for the Bank Defendant advances the application on two essential grounds:

First, that all matters relating to the Mortgage the subject of the claim were resolved before Justice Saksak pursuant to Orders issued on 27 April 1999 in Civil Case No. 163 of 1997 as annexed in “BDD6” to the sworn statement of Ben Dick Dali, sworn 15 June 2005.

In all circumstances, all issues raised with respect to the Mortgage are res judicata and cannot properly be dealt with in these proceedings. The only avenue to challenge the efficacy of the mortgage is to appeal the decision made by Justice Saksak in these proceedings.

I accept the submissions on this point. The issues relating to Mortgage were resolved before Justice Saksak pursuant to Orders issued on 27 April 1999 in Civil Case No. 163 of 1997. All issues raised with respect to the mortgage are res judicata. If the Claimant wished to challenge the efficacy of the mortgage, the proper course was to appeal any decision that Justice Saksak may have made in these proceedings. [See Civil Case No. 119 of 1997, Dinh Van Than v. Hon Willie Jimmy and the Government of the Republic of Vanuatu].

Secondly, the application proceeds on the ground that the Claimant claims for damages to have been suffered by Pele Koma Constructions Limited as pleaded in paragraph 16 of the Writ initiating these proceedings. No action can lay in the name of the Claimant.

By perusing the Writ, it is clear that the claim insofar as it relates to monies purportedly belonging to the Company, and loss suffered by that entity, cannot succeed.

Pele Koma Construction Limited (“the Company”) was, as pleaded, a company, the company is the only legal entity which would have any right of action in respect of the amount of Vatu 270,000 allegedly withheld from its savings account or otherwise allegedly misused by the Bank.

The Claimant, as a director and shareholder of the Company, has no direct right of action against the Bank in this regard as pleaded.

I accept that in the circumstances and given that the Company is not a party to these proceedings, no Orders for damages which may or may not have been suffered by the Company can be entered against the Defendant Bank.

In the result, and turning to the relief sought in the abovementioned Writ, the Court is not in a position to make any of the Orders sought by the Claimant in respect of paragraphs (a), (b), (c), (d) and in the result (f) and (g) thereof.

On the basis of the above consideration, the Court makes the following ORDERS:

1. The proceedings in Civil Case No. 187 of 2002 are hereby struck out in toto.
   

2. The parties to pay their own costs.

NOTE: In the normal course of event, the successful applicant is entitled to his costs. In the present case, I refuse to grant him costs as this sort of application should have been made before the Court in the Conference, trial preparation stages but not waiting until the first day of the trial. Mr Roper on behalf of his client informs the Court that he understands and accepts the position taken by the Court in respect to the costs.

Dated at Port-Vila this 26^th day of October 2005

BY THE COURT

Vincent LUNABEK
Chief Justice