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Ongalibang v Palau Administration Credit Union [2010] PWSC 1; Civil Action 07-064 (23 November 2010)

IN THE
SUPREME COURT OF THE REPUBLIC OF PALAU
TRIAL DIVISION

CIVIL ACTION NO. 07-064

ROSALINDA ONGALIBANG, et al.,
Plaintiffs,

vs.

PALAU ADMINISTRATION CREDIT :

UNION, et al.,

Defendants.

JUDGMENT

For the reasons detailed in its Decision of the same date, the Court finds that Defendants as officers and directors of Palau Administration Credit Union (APACU@) breached their fiduciary duties towards the members of PACU, and are liable for the damages incurred owing to their breaches. In a derivative action, Athe corporation is the real party in interest, and any recovery goes to the corporation, rather than to the shareholder who brings the action.@ 19 Am.Jur.2d Corporations ' 1944. Preasurer John Kebou ebou testified that all of PACU=s debts were repaid prior to PACU=s complete insolvency, so Defendants only n liable to the PACU shareholders. See id. ' 1945 (A[A]nyges ... recovercoveredvered [in a derivative action] will be available for the payment of debts of the corporation and, if any surplus remains, for distribution to the stockholders in proporti the number of shares held held by each.@) Therefore, Defendants are jointly and severally liable to PACU for the principal and interest of the members= shares which remain in PACU.

Accordingly, the Court orders an accounting by PACU of the PACU shares remaining for each member by December 6, 2010. Plaintiffs will have until December 20, 2010, to object to the accounting. Once the amount of shares for each member is determined, all Defendants will be jointly and severally liable for that amount, along with 9% post-judgment and 6% pre-judgment interest.

In calculating pre-judgment interest, A[i]f the breach consists of a failure to pay a definite sum of money ..., interest is recoverable from the time of performance on the amount due ....@ Kobayashi v. Kamiishi, 13 ROP 72, 77 (2006). The Bylaws grant an additional 60 days= grace period before PACU is required to repay the member after receipt of her or his demand. See Bylaws Art. II, ' 5. Therefore, pre-judgment interest will be calculated as of 60 days from the date of each Plaintiff=s demand letter. For example, Angeles Takashi wrote her demand letter to Treasurer Kebou on February 5, 2003. 60 days from February 5, 2003 is April 6, 2003. For Plaintiff Takashi, pre-judgment interest of 6% should be calculated from April 6, 2003 to the date of judgment.

Further, Defendants are liable for reasonable litigation expenses, to include Plaintiffs= attorney fees and court costs. Plaintiffs= counsel will submit his reasonable litigation expenses to the Court and counsel by December 6, 2010. Defendants will have until December 20, 2010, to object to any of Plaintiffs= listed expenses. Once the Court adopts Plaintiffs= expenses as reasonable, 9% post-judgment interest will also begin to accrue against those expenses.

For the reasons detailed in the Decision, the Court will award no punitive damages.

So Ordered.

November 23, 2010

______________________
Alexandra F. Foster
Associate Justice