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Breakas Beach Estate Ltd v Kalsarap [2006] VUSC 58; Civil Case 126 of 2005 (11 August 2006)

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

CIVIL CASE No.126 of 2005

BETWEEN:

BREAKAS BEACH ESTATE LIMITED
Claimant

AND:

SOPE KALSARAP AND FAMILY
Defendant

Mr John Malcolm for the Claimant
The Defendant not present nor represented

JUDGMENT ON QUANTUM

UPON hearing Mr John Malcolm on behalf of the Claimant; and the Defendant is not present nor represented; and

UPON reading the sworn statement of service of SERAH TOTO dated 10 August 2006; and

UPON being satisfied that, although the Defendant refused to accept the statement served on him by Serah Toto at Pango Village on Thursday 10 August 2006, the Defendant is aware of the hearing of this case and such a circumstance amount to an acceptance of the service of the statement purported to be served on him (the Defendant);

The Court enters Judgment on Quantum of Damages in favour of the Claimant. The next question then is how much?

The Claimant relies on two (2) sworn statements filed respectively by Sam Jessop of Port-Vila, Managing and a Director of the Claimant dated 2nd day of August 2006 and by Natalie Dufus dated 7 August 2006. The following awards are made in favour of the Claimant:-

1. DAMAGES

Access to the Claimant’s property was closed from 21st June 2005 to 28 October 2005 when an injunction was granted in this matter. Allowing for re-establishing the contractor, the site remained closed to 14 November 2005. This represents 146 days within which there is a total of 104 working days:-

(a) CLAIM FOR INTEREST LOST ON INVESTMENT on the period by delay at 5% as per the Court of Appeal ruling on the investment to date (of VT206,631,854) is this:-

206,631,854 x 5% x 365 x 104 = 2,943,796

(b) ADDITIONAL COSTS/LOSSES ARE:

• (i) Security
  • Night-time: 2 x 7,666 (7days per week)
  • Day-time: 3 x 5,200 (5 days – split shift pp)

TOTAL 2,190 x 146 days VT 319,740

3,120 x 105 days VT 327,340

_________

VT 647,340

(ii) Food costs VT 131,250

_________

VT 778,590

(iii) Additional costs

• Police VT 150,000
• Staff for BBEL VT 109,000
• Food VT 37,500
• Allowances VT 200,000

_________

VT 496,500

(iv) Rectification works VT 230,000

(v) Transformer VT 1,500,000 ___________

TOTAL VT 6,536,220

==========

The Claimant is entitled to its full loss of VT6,536,220 against the Defendant.

2. COSTS

The detailed information materials are contained in the sworn statement of Natalie Dufus of 2 August 2006. The total costs sought is of VT1,266,843.

At the conclusion of the hearing on damages, Mr Malcolm, counsel for the Claimant accepts a lesser amount of VT633,000 for the legal costs and disbursements. The costs are assessed and determined at VT633,000 against the Defendant.

3. ENFORCEMENT PROCESS

Mr Malcolm applies that the enforcement process of the judgment of the Court will be at the ease of the parties.

Dated at Port-Vila this 11th day of August 2006

BY THE COURT

Vincent LUNABEK
Chief Justice