Wini Pacific Ltd v Atoll Motor and Marine Services Ltd - Memorandum [2007] KIHC 41; Civil Case 73 of 2004 (18 January 2007)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Civil Case 73 of 2004

Between:

WINI PACIFIC LTD
Plaintiff

And:

ATOLL MOTOR AND MARINE SERVICES LTD
1st Defendant

And:

ANETOKA BABETARA
RITETI MANINRAKA
2nd Defendants

For the Plaintiff: Ms Berenike Iuta
For the 1st Defendant: Mr Birimaka Tekanene
For the 2nd Defendants: Mr Stephen Earl

Date of Hearing: 17 January 2007

MEMORANDUM

The plaintiff, Wini Pacific Ltd is suing for $25,574.84 being the value of goods allegedly supplied to the first defendant, Atoll Motor and Marine Services Ltd. The plaintiff has joined as defendants with AMMS, two persons, Anetoka Babetara and Riteti Maninraka. They have been directors of AMMS: the allegation is of laxness in the carrying out of their duties as directors.

[They have both been named in the Writ as "2nd defendants". They should have been named separately as second and third defendants respectively. This error does not affect the present consideration].

Mr Earl for Anetoka and Riteti has taken the point that the action against his clients is misconceived: it should be struck out. Directors, Mr Earl has submitted, owe duties to the company of which they are directors and to its shareholders but not to third parties such as the plaintiff. The plaintiff may have a remedy against AMMS but none against his individual clients.

I accept Mr Earl’s argument. In many jurisdictions nowadays a Court may, pursuant to legislation, "pierce the corporate veil" and hold directors personally liable. That is not the position in Kiribati. Directors have a duty to the company but that is as far as it goes.

The plaintiff’s claim against Anetoka Babetara and Riteti Maninraka should be struck out.

Ms Iuta, for the plaintiff, was most unwilling to argue the point: she said it was for Mr Berina to argue. Mr Berina is on holiday.

Because of the great inconvenience it causes, the Court is unwilling to adjourn cases (except for emergencies such as sickness) which have been given, with the concurrence of the parties, a date for hearing. The hearing on this point has been set for this week. That being so and Mr Earl’s point so apparently well taken that I went ahead to consider it. However if on his return Mr Berina wishes to reopen the argument I shall, on terms, allow him to do so. Otherwise this memorandum will become a decision and I shall make orders accordingly.

Dated the 18th day of January 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice