Emmett v Emmett [2010] SBCA 5; CA-CAC 01 of 2010 (26 March 2010)

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NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Chetwynd, J.)
COURT FILE NUMBER:	Civil Appeal Case No. 1 of 2010 (On Appeal from High Court Civil Case No. 46 of 2008)
DATE OF HEARING:	24 March 2010
DATE OF JUDGMENT:	26 March 2010
THE COURT:	Sire Robin Auld, PA Mr Justice McPherson, JA. Mr Justice Williams, JA.
PARTIES:	ANITA MAREE EMMETT Appellant -V- RONALD DOUGLAS EMMETT Respondent
ADVOCATES:
Appellant:	Mr M Tagini for Anita Maree Emmett
Respondent:	Mr B Titiulu for Ronald Douglas Emmett
KEY WORDS:
EX TEMPORE/RESERVED:	Ex Tempore
ALLOWED/DISMISSED:	Dismissed
PAGES:	1-5

This is an appeal by Ronald Emmett against the sentence of six weeks imprisonment imposed by Mr Justice Chetwynd on the 1st of March 2010 with immediate effect for his contempt of court in breaching an order made by Mr Justice Naqiolevu as long ago as the 19th of June of last year. The circumstances giving rise to that sentence were as follows.

On the second of December 2008 Mr Emmett’s marriage to Anita Emmett was dissolved. On the 13th of March 2009 she applied to the High Court for orders for distribution of the matrimonial property, including an order that the assets acquired in the name of a company known as Emmett Logging SI Ltd would form part of the matrimonial property. A vessel known as the Motor Vessel Buccaneer was included in the list of matrimonial properties in which he claimed an interest. Emmett in response to Mr Emmett’s’ application deposed that she did not have any claim of right over the motor vessel Motor Vessel Buccaneer.

On the 19th of June Ms Emmett having learned of what appeared to her to be the imminent sale of the vessel sought and obtained ex-parte from Mr Justice Naqiolevu an order in the following terms:

On the 13th of July 2009, less than a month later, following a hearing by Mr Justice Naqiolevu on Mr Emmetts’ claim for inter alia, a declaration that the MV Buccaneer, among other properties form part of the matrimonial property, the Judge held that she was entitled to a distribution from the matrimonial properties but declined to grant the declarations sought and we quote: “until satisfied as to the individual proprietary rights of the parties in the matrimonial property,” i.e. until satisfied as to her precise entitlement, the matter which had yet to be decided.
It is plain that that outcome was preliminary to determination of such an issue that it did not discharge the protective orders of the 19th of June 2009 designed to hold the ring in relation to the Motor Vessel Buccaneer, in particular until the issue or issues of ownership were finally resolved by the Court.

Mr Patrick Lavery, a solicitor who appeared for Mr Emmett in those proceedings and who along with Mr Emmett was in due course to be served as a party to the contempt proceedings claimed, and he has done before this Court two days ago despite his long experience as a legal practitioner, to have understood to the contrary.

On the 14th of December 2009 Mrs Emmett applied to the High Court for contempt orders against Mr Emmett and Mr Lavery and another who does not figure in the issue at this stage. Contempt orders for breach of the orders of the 19th of June 2009. She did so having learned that Mr Emmett had before the order of the 13th of July 2009 sold or caused to be sold the Motor Vessel Buccaneer and hadn’t paid the proceeds into a joint trust account as required by the orders of the 19th of June. Instead, he had caused the balance of the proceeds of sale after discharging a debt to Credit Corporation who had a mortgage claim over the vessel to be paid into his, Mr Lavery’s, trust account and who thus had it under his direct control. On Mr Emmett’s later account in support of this appeal Mr Lavery had advised him that he Mr Emmett was not bound to pay the proceeds into a joint trust account, a view that Mr Lavery also expressed to this Court two days ago. Thus it was that on the 24th of February and 1st of March 2010 Mr Justice Chetwynd sat to consider the contempt application of Mrs Emmett which she supported by evidence of the facts that we have just summarised. Mr Emmett appeared no longer represented by Mr Lavery who had been doing his best to avoid service of the proceedings but by Mr Billy Titiulu who appears for him in these proceedings as well. Mr Lavery did not appear and was thus not available to inform Mr Justice Chetwynd of the amount or status of the proceeds of sale allegedly held in his trust account. However, Mr Emmett in a sworn statement and through Mr Titiulu explained that he had attempted to comply with the orders of the 19th of June but that Mr Lavery had advised him that he need not do so. He also swore in his statement that Mr Lavery had not responded to several requests from him or from Mr Titiulu recently instructed as to how much of the proceeds of sale remained in Mr Lavery’s trust account save eventually to say that he did not know the amount. Mr Titiulu also informed the Judge that Mr Lavery had left for Gizo the previous day not withstanding Mr Emmett’s clear indication to him that he was required to attend the contempt proceedings on the 1st of March as if that were not plain enough in the service of those proceedings in the customary way which had been effected on Mr Makario Tagini for Ms Emmett also informed the Judge that he too had attempted to contact Mr Lavery by letters and also orally putting him on notice of Mrs Emmett’s intention to take contempt proceedings against him. That too evoked no response from Mr Lavery. On Mr Emmett’s account, after payment of the Credit Corporation of the mortgage debt on the vessel, there had been a payment in his payment out of the sale transaction by a cheque of $650,000, a cheque which was handed to Mr Lavery and who had according to him paid it into to his own trust account. Mr Emmett said that he had subsequently received payment from Mr Lavery of $120,000.

Mr Lavery in brief submissions to this Court two days ago on being brought before it by means of a bench warrant for his arrest claimed that he had paid further sums to or in favour of Mr Emmett and had also drawn about $100,000 from the proceeds of the sale in satisfaction of his own legal fees. He volunteered no information to the Court as to what remained in his account of those proceeds. Mr Emmett and his son William Emmett also offered undertakings to pay the balance of the proceeds of sale into a new joint trust account to be opened by Mrs Emmett’s solicitor and Mr Emmett’s new solicitor. All of that was before Mr Justice Chetwynd on the 1st of March. He nevertheless took the view that the sale of the Motor Vessel Buccaneer had been a blatant attempt by Mr Emmett to defeat the orders of the 19th of June 2009 and that his profit excuse as to the advice he had received from Mr Lavery did not affect that view. The orders of the 19th of June were in the Judges view plain and Mr Emmett had deliberately acted contrary to them. Mr Justice Chetwynd accordingly found Mr Emmett guilty of contempt and sentenced him to an immediate sentence of a period of 6 weeks imprisonment. On the 9th of March Mr Justice Goldsbrough stayed the operation of the order pending the outcome of this appeal conditional on Mr Emmett not leaving the jurisdiction and surrender of his passport. Mr Emmett has now appealed to this Court against the sentence of 6 weeks imprisonment. He claims that it is manifestly excessive given that he has caused the balance of the proceeds of sale of the vessel after payment of debts to be paid into Mr Lavery’s trust account and he maintained that the funds were still there under Mr Lavery’s direct control. He also relied on his and his sons offers of undertakings to pay the balance into a new joint trust account. Mr Titiulu on his behalf reiterated to this Court the argument that had found so little favour before Mr Justice Chetwynd namely that it was all Mr Lavery’s fault in giving Mr Emmett erroneous advice, advice that Mr Emmett had no reason he said to query. He asked the Court to substitute a suspended sentence of imprisonment coupled with a condition subsequent that all outstanding matrimonial funds be paid into a joint trust account within a reasonable time, say 21 days. Mr Tagini for Mrs Emmett argued for the substitution of a suspended sentence on Mr Emmett subject to a condition subsequent of the proceeds of sale of the vessel be put into a joint trust account within 14 days from that day and that his travel be strictly regulated. Such an order Mr Tagini suggested would enable Mr Emmett to restore the protection designed for Mrs Emmett by the orders of the 19th of June 2009.

The problem with both of those proposals is that neither party knows exactly what sum is in Mr Lavery’s trust account or whether it truly represents the net proceeds of sale after payment to Credit Corporation of $350,000 nor do they have any direct leverage it seems over Mr Lavery to enable them to comply with any such conditions. In addition, such proposals for what they are worth do not overcome Mr Emmett’s own culpability in his early determination having denied Mrs Emmett’s claim to any interested in the vessel or to its proceeds of sale to sell or cause the sale of the vessel at a time when (1) she had clearly indicated her claim to such an interest; (2) the Court had marked that claim by its protective orders of the 19th of June 2009 pending determination of it and (3) the Courts ruling of the 13th of July of the nature and the amount of the claim had yet to be determined. It was as Mr Justice Chetwynd put it: “A blatant attempt at circumventing the Court, a deliberate move by Mr Emmett,” Mr Justice Chetwynd’s words which we endorse, “he knew exactly what he was doing.” And as Mr Justice Chetwynd also put it, Mr Emmett’s subsequent treatment of the proceeds of sale by following the advice he claims to have received from Mr Lavery simply do not absolve him from what, on a plain reading of the orders of the 19th of June 2009, amounted to a deliberate act. Clearly of appease with his earlier declared stance, Ms Emmett had no entitlement of any sort in the Motor Vessel Buccaneer. Putting Mr Emmett’s case at its highest in the Court’s view, Mr Lavery’s advice, if that is what it was, has been a welcome and convenient peg on which to hang his defiance of the Order, one in which he persisted until late in the day and long after Mr Lavery’s evasive conduct would have caused any reasonable client alarm as to his solicitors integrity.

When the Court adjourned this matter two days ago, it was left to the parties to see what if anything they could do to redeem the situation either with or without the assistance of Mr Lavery. We were told by a Mr Titiulu that between Mr Emmett and his son they have managed to prepared to make an offer towards the restoration of the sale proceeds, a sum of $75,000. Mr Titiulu also spoke of having made approaches to Mr Lavery in the intervening days who said that he would provide a cheque for some unspecified sum but would not do so until a new trust account was created. He indicated it seems that there was a sum of roughly $330,000 which he could put into such an account. The matter if capable of being done at all with that contribution from Mr Lavery was capable of being done within the last 48 hours, simple enough exercise the creation of account accredit to it of whatever the appropriate balance there is. It was not done and from the conduct of Mr Lavery to date a clear indication, it seems to the Court at least of some improbability, that it would be done if more time were given.

So the Court on the fresh information given to it this morning, despite the great efforts that clearly have been made by Counsel on both sides to do something about the unfortunate position on which Mrs Emmett stands without the protection designed by the Court last June is not of sufficient substance or reality to lead this Court to differ from the view that we had provisionally come to and which I have expressed in the last few minutes. Circumstances the Court feels bound to dismiss Mr Emmett’s appeal and orders to stay on his period in custody to be removed and that he be returned to custody to serve the balance of the sentence.

Now, in the meantime in the event of Mr Emmett while serving that balance of sentence, if he finds himself in a position to purge his contempt with or without the assistance of Mr Lavery, it is of course open to him to apply to the High Court with a view to purging the contempt if achievable. That’s entirely a matter for him and those who may be involved with him, Mr Lavery as well, in taking cognizance of what the Court is doing today. I should note for the record, I think it was mentioned earlier in the proceedings today that the Court has reactivated the contempt proceedings against Mr Lavery. I believe that a notice has been served on him and is returnable on I think Wednesday of next week.

Accordingly for the reasons given and with those considerations in mind the Court dismisses Mr Emmett’s appeal.

Court of Appeal of Solomon Islands

Emmett v Emmett [2010] SBCA 5; CA-CAC 01 of 2010 (26 March 2010)