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Carillo v Carillo [2020] VUSC 204; Civil Appeal Case 2070 of 2019 (9 September 2020)

IN THE SUPREME COURT OF Civil Appeal

THE REPUBLIC OF VANUATU Case No. 19/2070 SC/CIVL

(Civil Appellate Jurisdiction)

BETWEEN: Philippe Carillo

Appellant

AND: Maxine Carillo

First Respondent

AND: Tristine Aureal Lal

Second Respondent

Date of Hearing: 25 June 2020

Before: Justice V.M. Trief

In Attendance: Appellant – in person

First Respondent – no appearance

Second Respondent – Mr R. Tevi

Date of Decision: 9 September 2020

JUDGMENT

1. Introduction
   

1. This is an appeal from the Magistrates’ Court judgment dated 20 March 2019 dismissing the Appellant Philippe Carillo’s claim against the First Respondent Maxine Carillo (‘Ms Carillo’), hich held held that the Second Respondent Tristine Aureal Lal was a bona fide purchaser of the Isuzu vehicle owned by Mr Carillo.
   

Having heard Mr Carillo and Mr Tevi not opposing, I ordered that the time for the filing of Mr Carillo’s appeal is extended pursuant to r. 18.1(1) of the Civil Procedure Rules as he had instructed his lawyer within time to file an appeal but the lawyer did not do so despite numerous follow-ups, that he was driven eventually to file the appeal himself out of time and is now self-represented. I note also that Mr Carillo has filed a complaint against that lawyer with the Law Council.

100. Background
     

3. Mr and Ms Carillo were married and are now divorced.
   
4. On 18 October 2017, Mr Carillo purchased a silver Isuzu vehicle with registration number 16591 (the ‘car’) from Carpenters Motors for VT930,000.
   
5. The car was registered solely in Mr Carillo’s name.
   
6. On 21 November 2017, Mr and Ms Carillo separated.
   
7. Ms Carillo damaged the car in a motor vehicle accident.
   
8. The car was taken to the Second Respondent’s brother Alpha Lal’s garage, who sold it to the Second Respondent in or about April 2018.
   
9. In April 2018, the Second Respondent changed the registration of the vehicle at the Department of Customs to his own name.
   
10. In June 2018, Mr Carillo informed Alpha Lal and the Second Respondent that the car had been transferred without his knowledge.
    
11. Mr Carillo commenced action in the Magistrates’ Court against Ms Carillo alleging theft and fraudulent sale of the car to the Second Respondent without Mr Carillo’sledge or conr consent, and that the Second Respondent had failed or refused to return the car.
    
12. Ms Carillo has not taken any any steps in the Magistrates’ Court proceedings nor in this Court.
    
13. The Second Respondent filed a Defence that at all material times he believed that the First Respondent acted in good faith in the process of selling and transferring the car to him. Further, that he is a bona fide purchaser.
    
14. After a trial, the Court issued the judgment now appealed.
    

4. Grounds of Appeal
   

15. Mr Carillo advanced three grounds of appeal:
    
    1. The Magistrates’ Court judgment is not fair at all and that the Magistrate did not ask econSecond Respondent the right question;
    2. The judgment contains false data, falmes and lies; and
    3. The Magistrate did not ask any question about the first buyer of the car, Alpha Lal who issued an invoice from his company Classic Auto Restoration services (‘C.A.R.S.’) to the Second Respondent.
16. During the hearing, Mr Carillo clarified that grounds 1 and 3 are to the effect that the Magistrate did not deal with the factual question of the sale of his car without his knowledge or consent. Ground 2 is to the effect that the judgment contains many errors including what business Alpha Lal manages, references to Arvin Lal and Pacific Autronics instead of to Alpha Lal and C.A.R.S., and not dealing with whether or not the vehicle transfer document was fraudulent.
    

5. Discussion
   

17. From the Claim and Defence filed in the Magistrates’ Court, the issues between the parties were:
    
    1. Whether or not Ms Carillo fraudulently sold the car to the Second Respondent without Mr Car#8217;s knowledge or conr consent; and
    2. Whether t the Second Respondent was a bona fide purchaser.
       
18. The Second Respondent asserted that he was a bona fide purchaser who had bought the car from his brother Alpha Lal without any knowledge of fraud on Ms Carillo’s part. The sale of the car by Alpha Lal to the Second Respondent is evidenced by an invoice dated 24 April 2018 froma Lal’8217;s garage, C.A.R.S. selling the car to the Second Respondent for VT389,999.50.
    
19. The Magistrate set out the following issues in the judgment:
    
    1. Whether or not the First Respondent fraudulently signed the documents to allow sold [sic] the Isuzu vehicle?
    2. Whether or not the Second Respondent knew that the First Respondent fraudulently signed transfer of ownership documents of the vehicle?
    100. Whether or not the Second Respondent was a bona fide purchaser?
21. The Claimant’s case and the Defence case are then set out. However, instead of determining whether or not Ms Carillo fraudulently sold the car to the Second Respondent, the Court dismissed all claims against her as it would be an abuse of process to enter judgment against her.
    
22. The issue for the Court’s determination was not whether or not judgment should be entered against Ms Carillo. The issue for its determination was whether or not Ms Carillo’s sale of the car to the Second Respondent was fraudulent. At no point in the Magistrates’ Court judgment was that question determined. Accordingly, the Magistrate erred in not doing so. Grounds 1 and 3 of the appeal are made out. The Magistrates’ Court judgment dated 20 March 2019 must be set aside.
    
23. The Magistrate referred in her judgment to Mr Carillo’s sworn statement dated 20 July 2018 and that she found him to be a credible and reliable witness.
    
24. Rule 11.7(1) of the Civil Procedure Rules provides that a sworn statement that is filed and served becomes evidence in the proceeding unless the court has ruled inadmissible. There is no suggestion that the Magistrate ruled any part of Mr Carillo’s sworn statement inadmissible.
    
25. Having found that Mr Carillo was a credible and reliable witness, it follows that the Court accept his evidence as filed. Mr Carillo attached to his statement a copy of the Vanuatu Government Transfer of Ownership of Motor Vehicle form dated 24 April 2018 (Annexure “PC5”
26. In the circumstances, I am satisfied that Ms Carillo signed for Mr Carillo on the Vanuatu Government Transfer of Ownership of Motor Vehicle form dated 24 April 2018 without Mr Carillo’wledge or conr consent. I find therefore that Ms Carillo fraudulently sold the car to the Second Respondent without Mr Carillo&#s knowledge or conr consentbr>
27. The remaining issue for determin is whether or not the Second Respondent was a bona fide pide purchaser. The Magistrate set out that principle in the judgment as follows:
    

The bona fide principle [is] that a purchaser of a property must acquire title through payment of value, he or she must with good faith purchase the property, be an innocent purchaser for the value and without actual or constructive notice of another’s rights.