Jiarong Xhu v Bahn

JUDGMENT OF THE COURT

Introduction 

1.    On 26 January 2025, Mr Renold Bahn (“Mr Bahn”) was driving a Nissan Terra vehicle registration 24165 (“the Nissan vehicle”) from Tropical Market towards Parliament. Mr Xhu was driving a Mitsubishi Pajero registration 22873 (“the Pajero vehicle”) in the opposite direction. There was a collision between the two vehicles near Parliament. There is a police report which records that the accident occurred when the Pajero vehicle collided with the front bumper and headlamps of the Nissan vehicle. While not expressly stated, we infer that the Pajero vehicle crossed the centreline into the path of the Nissan vehicle, which resulted in a head on collision.

2.    Mr Bahn’s vehicle sustained extensive damage to the front of the vehicle. It is not in dispute that Mr Xhu said he was willing to meet the repair costs, contingent upon receipt of reasonable repair quotations. Mr Bahn’s position is that despite a promise to meet the repair costs, Mr Xhu failed to honour the promise.
3.    Mr Bahn and his brother, the joint owners of the Nissan vehicle, then filed a motor vehicle negligence claim, seeking by way of relief, compensation for the total loss of the vehicle and special damages in the sum of VT 7.5 million. 

4.    The claim was defended. Mr Xhu admitted that the accident occurred but denied it was solely caused by his negligence. The defence raised a number of issues relating to quantum. 

Summary judgment application 

5.    Mr Bahn applied for summary judgment. The application was listed for hearing. Mr Xhu did not file a sworn statement setting out the reasons why he had an arguable defence. In fact, he filed no evidence in support of his defence. 

6.    Mr Ngwele, Mr Xhu’s counsel, did not attend the summary judgment hearing. Summary judgment was entered in respect of both liability and quantum, as the primary judge found that Mr Xhu had no real prospect of defending the claim.  ^[1]

7.    The following orders were made:

a.    Judgment in favour of the claimant.
b.    An order for payment of VT 7.5 million, being compensation for the loss of the vehicle and special damages arising from the accident. 
c.    Costs of VT 150,000. 

Application for enlargement of time 

8.        The judgment was delivered on 20 March 2026.  A notice of appeal was filed on 29 April 2026. It was not accompanied by an application for enlargement of time to appeal, ^[2] which was subsequently filed on 15 June 2026. The applicant seeks an order that the time to appeal be enlarged, on the basis the intended appeal has reasonable prospects of success. 

9.        The application is opposed. 

10.        In Laho Limited v QBE Insurance Vanuatu Limited [2003] VUCA 26, this Court set out the factors to be taken into account in deciding whether or not to grant an enlargement of time to appeal. ^[3] The factors are:

a.    The length of the delay
b.    The reasons for the delay
c.    The chances of the succeeding if time for appealing is extended; and
d.    The degree prejudice to the potential respondent if the application is granted.

Our approach 

11.        The application for an order that time to appeal be enlarged, and the merits of the substantive appeal were heard together. For reasons which follow, we consider the merits of the substantive appeal first, because that is determinative of whether we make an order enlarging time to appeal.

Merits of the appeal 

12.        While a number of grounds are advanced in the notice of appeal, the crux of the appeal (if time is enlarged) is that the primary judge erred in making an order for summary judgment because the defence disclosed substantial and genuine factual disputes. 

Summary Judgment Procedure

13.        Summary judgment is a way to end a proceeding early. Rule 9.6 of the Civil Procedure Rules (“CPR”) relevantly provides:

9.6 Summary judgment

(1)    This rule applies where the defendant has filed a defence but the claimant believes that the defendant does not have any real prospect of defending the claimant’s claim.

(2)    The claimant may apply to the court for a summary judgment.

(3)    An application for judgment must:

(a)    be in Form 15; and
(b)    have with it a sworn statement that:

(i)    the facts in the claimant’s claim are true; and
(ii)    the claimant believes there is no defence to the claim, and the reasons for this belief.

(4)    The claimant must:

(a)    file the application and statement; and
(b)    get a hearing date from the court and ensure the date appears on the application; and
(c)    serve a copy of the application and sworn statement on the defendant not less than 14 days before the hearing date.

(5)    The defendant:

(a)    may file a sworn statement setting out the reasons why he has an arguable defence; and
(b)    must serve the statement on the claimant at least 7 days before the hearing date.

(6)    The claimant may file another sworn statement and must serve it on the defendant at least 2 days before the hearing date.

(7)    If the court is satisfied that:

(a)    the defendant has no real prospect of defending the claimant’s claim or part of the claim; and
(b)    there is no need for a trial of the claim or that part of the claim, the court may:
(c)    give judgment for the claimant for the claim or part of the claim; and
(d)    make any other orders the court thinks appropriate.

(8)    If the court refuses to give summary judgment, it may order the defendant to give security for costs within the time stated in the order.

(9)    The court must not give judgment against a defendant under this rule if it is satisfied that there is a dispute between the parties about a substantial question of fact, or a difficult question of law. 

14.        The Court may grant summary judgment if it is satisfied there is no real prospect of defending the claim or part of the claim, and there is no need for a trial of the claim or part of the claim. A real prospect means one which is realistic not fanciful. ^[4] The onus is on a claimant to establish that a defendant has no real prospect of defending the claim or part of the claim. ^[5]

Discussion

15.        At the summary judgment hearing, the only evidence for the primary judge to consider was Mr Bahn’s sworn statement as to liability and quantum. The difficulty with the applicant’s contention that the primary judge erred in granting summary judgment is that Mr Xhu did not file a statement setting out the reasons why he had an arguable defence. 

16.        We cannot accept Mr Ngwele’s contention that the primary judge should have taken the defence into account, in considering the summary judgment application. A defence has no evidential value in a summary judgment hearing. A defence is a statement of the case.  If a defendant does not deny a particular fact, the defendant is taken to agree with it.   In the defence, Mr Xhu did not deny there was an accident. He admitted there was an accident, although he denied it was solely caused by his negligence. In other words, Mr Xhu admitted causing the collision, but asserted some responsibility on Mr Bahn’s part. Mr Xhu, though, did not particularise in the defence how Mr Bahn negligently contributed to the collision. Pursuant to rule 4.5(4) CPR, he was required to do so. 

17.        While a Court must always take a cautious approach to granting summary judgment, ^[8] we see no error in summary judgment being granted for liability. The evidence was that the Pajero vehicle, driven by Mr Xhu, crossed the centreline and collided with the oncoming Nissan vehicle, causing significant damage to the front of the vehicle. There is a police report which corroborates Mr Bahn’s evidence as to how the collision occurred. The report records that the accident occurred when the Pajero vehicle collided with the front bumper and headlamps of the Nissan vehicle. Whether Mr Xhu was affected by alcohol is irrelevant. This was a head on collision caused by the Pajero vehicle crossing the centreline. That is a negligent act. In his defence, Mr Xhu admitted there was an accident. What he denied was being solely negligent for the accident. But as we have said, he failed to particularise how Mr Bahn negligently contributed to the collision, as he was required to do. 

18.        Further, Mr Xhu took no steps whatsoever to oppose the summary judgment application. He did not file any evidence as to why he had an arguable defence, and Mr Ngwele did not attend the hearing. 

19.        For the reasons which follow, we do consider however, that the primary judge erred in granting summary judgment in relation to quantum. 

20.        In Remy v Kyong Sik Jang [2018] VUCA 5, this Court set out the principles guiding a Court in assessing damages. Pertinent to this appeal, the Court said that when a Court is required to assess damages, the Court starts from the principle that it is for the claimant to identify the losses which are claimed, and to lead evidence to establish them.  ^[9]

21.        Mr Bahn asserted that the Nissan vehicle was a write-off. However, there was no evidence before the primary judge from a mechanic or assessor as to whether the vehicle was economic, or uneconomic, to repair. 

22.        When a vehicle is uneconomic to repair, it is a write-off.  When a vehicle is uneconomic to repair, the value of the vehicle is assessed at its current value immediately prior to the collision. ^[10] There was no evidence of the vehicle’s value before the collision.

23.        If the vehicle was economic to repair, the damages will be the repair costs. There was conflicting evidence as to the estimated repair costs. Mr Bahn attached two repair estimates which are significantly divergent. Carpenter Motors estimated the repair costs to be VT 2,531,739. Techauto Service estimated the repair costs to be VT 5,077,455. There was no evidence as to why the estimated repair costs varied so significantly.

24.        The primary judge was not in a position to assess compensation for the vehicle given the lack of evidence as to: 

a.    whether the Nissan vehicle was, or was not, economic to repair; 
b.    the current value of the vehicle; and 
c.    why there was such a large disparity between the estimated repair costs. 

25.        Mr Bahn also sought special damages but did not properly plead special damages. If special damages are sought, they must be specifically pleaded and proved strictly. ^[11]

26.        The special damages sought related to business losses, as Mr Bahn contended the Nissan vehicle was a business asset. The amount sought for business losses was not quantified, and the evidence was inadequate. Mr Bahn contended the business losses arose from the total loss of the vehicle, loss of business operations, the costs of rental vehicles, and lost earnings. Other than lost earnings, Mr Bahn did not provide any evidence to quantify the losses. 

27.        For lost earnings, Mr Bahn asserted the daily earnings for the business range from VT 30,000-60,000. We make the following points. Firstly, there is no evidence as to the business Mr Bahn and his brother have, and how the Nissan vehicle was used in the business. Secondly, no financial accounts were provided to the Court to verify the daily earnings, and whether those earnings are inclusive or exclusive of expenses. Thirdly, Mr Bahn contended the business had to use rental cars but provided no evidence as to the rental car costs. Fourth, there is no evidence as to the time period Mr Bahn sought payment of business losses. 

28.        In summary, Mr Bahn did not properly plead special damages and has failed to lead evidence to establish the business losses. Further, the primary judge did not identify the quantum of the special damages award. For the reasons set out above, summary judgment should not have been entered for VT 7.5 million.  

29.        After considering the merits of the substantive appeal, it must succeed in relation to quantum, if enlargement of time to appeal is granted.

Length and reason for delay

30.        The judgment was delivered on 20 March 2026. An appeal should have been filed by 23 April 2026. The notice of proposed appeal was filed on 29 April 2026. The delay is 6 days, which is very modest. The reason for the delay is that counsel needed to obtain and review the judgment and prepare the appeal properly. This is an unconvincing explanation. 

Prejudice

31.        As we see no error in the primary judge’s finding as to liability, and the very modest delay, we cannot discern any prejudice to the respondent, if leave to appeal is granted. The respondent failed to adduce evidence to prove damages, so there would be prejudice to the appellant, if an enlargement of time is not granted. 

Conclusion

32.        After considering the merits of the substantive appeal in relation to the issue of quantum, the appeal must be allowed but only in relation to quantum. While the reasons for delay are not convincing, the delay was very modest and the appellant would be prejudiced if time was not enlarged to appeal, as we have said.

Disposition of the appeal

33.        The application to enlarge time to appeal is granted. 

34.        We make the following orders:

a.    The appeal is allowed only in relation to quantum. Otherwise, the appeal is dismissed. 

b.    The order that the appellant pay the respondent VT 7.5 million compensation and special damages is set aside. 

c.    The issue of quantum is remitted to the Supreme Court for determination. 

d.    Each party is to bear their own costs.

DATED at Port Vila, this 14th  day of August 2026
BY THE COURT

____________________________________
Honourable Chief Justice Vincent Lunabek

^[1] Bahn v Xhu [2026] VUSC 184.
^[2] As per rule 9 of the Court of Appeal Rules.
^[3] The factors in Laho have been recently applied by this Court. See Sangary v Vemol [2025] VUCA 3, Tevi v Bani [2026] VUCA 4 and Ruben v Nalwang [2026] VUCA 7.
^[4] Swain v Hillman [2001] 1 All ER 91, approved by the Court of Appeal in Bokissa Investments Ltd v RACE Services Pty Ltd (In Liquidation) [2003] VUCA 22.
^[5] Rolland v Sugden [2022] VUSC 145.
^[6] Rule 4.5 CPR.
^[7] Rule 4.5(5) CPR.
^[8] Bokissa Investments Ltd v RACE Services Pty Ltd (In Liquidation), n. 4 above.
^[9] At paragraph 30. See also Shefa Provincial Council v Timberland Ltd [2025] VUCA 30.
^[10] See the observations in Republic of Vanuatu v Jong Phil Shin [2025] VUCA 43 at paragraphs 30 and 31.
^[11] See the discussion about general and special damage in Ratcliffe v Evans (1892) 2 QB 524. See also Strom Bruks Aktie Bolag v Hutchison [1905] AC 515 and McGregor on Damages, 17th Edition at 1-030-1-036