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Aaron v Westpac Banking Corporation [2006] VUSC 56; Civil Case 084 of 2006 (21 July 2006)

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

Civil Case No.84 of 2006

IN THE MATTER OF: An appeal from Magistrates Court

BETWEEN:

DAVID AARON
Appellant

AND:

WESTPAC BANKING CORPORATION
Respondent

Coram: Justice H. Bulu

Counsels: Mr. Felix Laumae for the Applicant
Mr. Nigel Morrison for the Respondent

Date of Hearing: 26 June 2006
Date of Decision: 21 July 2006

DECISION ON URGENT APPLICATION FOR SUSPENSION OF ORDERS DATED MAY 2, 2006

1. In an Urgent Application, filed on 22nd June 2006, Mr. David Aaron sought the Court’s assistance to "forthwith suspend enforcement of the Judgment/Order (the Orders) which this Court made on May 2, 2006".
   
2. The grounds advanced for the application are as follows:-
   

"1. As set out in the Sworn Statement filed herein by David Aaron (the Appellant) in support of this Application,

2. The Appellant has filed an appeal against judgment dated 2 May 2006 and also filed separate Supreme Court Claim against the Respondent and ANZ Bank challenging transfer of the truck into the Respondent’s name and ownership of the truck by the Respondent.
   
3. It is in the interest of justice that the Orders be suspended."
   
3. Mr. Laumae on behalf of the Applicant submitted that the Applicant has filed a Notice of Appeal against the Orders of 2 May 2006 on 23 May 2006.
   
4. Mr. Laumae went on to site paragraphs 4, 5 and 6 of the Sworn Statement of the Applicant as containing the reasons for the order being sought. They are:-
   

"My family and I rely on the business to meet our day to day survival in Port Vila since 1997. Without the truck our business will come to end and I will not have any income to feed and pay for my bills to live in Port Vila. To maintain status quo, I ask that I have possession of the truck which I have business licence to operate. I have operated sewage pumping business since 1997. Annexed herewith marked "DA 3" is a true copy of my business licence.

I have been in possession and operated the truck since I refinance its purchase through loan I obtained from ANZ Bank to date.

I will continue to lose business and will suffer as the result of the purported unlawful transfer of the vehicle into the Respondent’s name."

5. Mr. Laumae went on to say that the vehicle in question had been in the Applicant’s possession all along and that the Applicant is also the legal owner of the vehicle.
   
6. Mr. Laumae further submitted that the Court below did not place sufficient emphasis on the Applicants evidence. The evidence about a loan arrangement, a mortgage and a business arrangement that the Applicant had with the others.
   
7. In his final submissions Mr. Laumae applied for a further order of the Court, namely, that the Applicant re-possess the vehicle to operate his business. Any money raised be paid into Court or the trust account of the solicitors until the determination of the appeal. The Applicant has a current business licence and it is the business that maintains him in Port Vila.
   
8. Mr. Morrison in reply did not really oppose the application for suspension of the Orders of 2 May 2006. However, he objected strongly to the application seeking to have the vehicle re-possessed by the Applicant and to operate it pending the determination of the appeal. The ground for the objection is simply that the only evidence before the Court now in relation to ownership of the vehicle shows that the ownership vests in Westpac Bank and not the Applicant. It would be wrong in law to give possession to the Applicant.
   
9. I have had the opportunity to peruse the Magistrate Court file on the matter. I have heard counsels and also perused the Application and the Sworn Statement in support. I have perused the Decision of the Court below dated 2 May 2006. I am satisfied that a Notice of Appeal has been filed. Accordingly, it is my view that the Orders of 2 May 2006 should be suspended until the determination of the appeal.
   
10. Should the possession of the vehicle be given to the Applicant. I have read the various documents contained in the Magistrates Court file on the matter but have only found one evidence as to ownership. That single evidence says that the ownership of the vehicle is vested in the Westpac Bank. I have found no other evidence that contradicts or rebuts that evidence. As such I fail to see how the Court can order the Bank to hand over the vehicle to the Applicant, without the Bank’s free consent to do so. Clearly, from Mr. Morrison’s submissions the Bank does not want to give up possession of the vehicle.
    
11. Further, at paragraph 3 of the sworn statement of the Applicant he stated that "... I have possession of the truck which I have business licence to operate". That is misleading as the Business Licence is to provide "personal, social, recreational and repair services". Clearly he needs a truck to be able to provide the services but the Licence, a copy of which is in evidence, is to operate the services stated in the Licence. Secondly, if possession of the truck is given to the Applicant, it serves no purpose anyway as his counsel had proposed that what is earned is paid into Court or the solicitor’s trust account pending the appeal.
    
12. The formal orders of the Court are:-
    
    • (a) The Judgment of the Magistrate Court dated 2 May 2006 is suspended pending the determination of the Appeal.
      
    • (b) The application for the Applicant to possess the vehicle and to operate it till the appeal is determined, is refused.
      

DATED at Port Vila, this 21st day of July 2006.

H. BULU
Judge.