Lee Kwok Kuen & Company Ltd v Bartlett [2012] SBCA 4; CA-CAC 02 of 2012 (23 March 2012)

IN THE SOLOMON ISLANDS COURT OF APPEAL
NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Mwanesalua J.)
COURT FILE NUMBER:	Civil Appeal Case No. 2/2012 - (On Appeal from High Court Civil Case No 244 of 2011)
DATE OF HEARING:	20 March 2012
DATE OF JUDGMENT:	23 March 2012
THE COURT:	Sir Robin Auld, President
	Sir Gordon Ward, JA
	Justice Glen Williams, JA
PARTIES:	LEE KWOK KUEN & COMPANY LIMITED - Appellant
	-V-
	ALEX BARTLETT - Respondent
ADVOCATES:
Appellant:	M TAGINI
Respondent:	J KENIAPISIA
KEY WORDS:	Practice, Strike Out Abuse of Process, Pleading
EX TEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED:	DISMISSED
PAGES:	4

JUDGMENT OF THE COURT

1. Consequent upon dealings between Alex Bartlett, the present respondent, and Hai Way International Limited, the first defendant in Civil Case 244 of 2011, a document was executed on 28 February 2007 purporting to be a settlement of disputes between those parties.

2. It was a condition precedent to the enforceability of that purported agreement that Hai Way be registered as owner of all the land in question. To enable that to happen, Bartlett surrendered title documents to the land to the Commissioner of Lands on or about 7 March 2007. Thereafter Hai Way was registered as proprietor of all the land in question.

3. In terms of the document executed 28 February 2007 Hai Way agreed to transfer to Bartlett a portion of that land to be identified by mutual negotiation. When Bartlett sought to enforce that provision in the Court it was held at first instance and confirmed on appeal that the agreement was void for uncertainty and unenforceable: Civil Case 258 of 2007 and Court of Appeal Case 18 of 2010, Judgement of 9 May 2011.

4. Hai Way transferred all the land in question to the present appellant who became registered owner on or about 11 June 2007.

5. Thereafter Bartlett commenced Civil Case 224 of 2011 on 5 July 2011 against Hai Way and the present appellant. Essentially he claimed that he acted to his detriment when he surrendered the title deeds on or about 7 March 2007 on the mistaken belief that the document signed 28 February 2007 was legally binding and enforceable, and that in consequence Hai Way obtained a benefit to which it was not entitled.

6. It is also alleged in the action that the present appellant acted fraudulently in that it colluded with Hai Way in the drafting of the agreement to enable Hai Way and the appellant to benefit to the detriment of Bartlett. An allegation is also made that the solicitor for Hai Way and the appellant misled or deceived Bartlett.

7. The appellant applied to have the claim struck out as an abuse of process and not disclosing any reasonable cause of action. In support it submitted:

(1) The question is whether the court should strike out the claimant’s claim because the issues raised have been litigated or should have been litigated before and the Claimant should not be allowed to re-litigate what has already been decided or should have been decided.

(10) In this action, the claim of the Claimant is res judicata estoppel on the grounds that the parties are the same, the property in dispute is the same property and issues for determination are the same as those already determined by His Lordship Justice Chetwynd in Civil Claim No. 258 of 2007 and Civil Appeal Case No. 18 of 2010. The proceeding is res judicata issue estoppel which is an absolute bar to re-litigation.

8. Mwanesalua J refused to strike out the claim holding the parties were different and there was fresh evidence. From that decision, the appellant appealed, having obtained an extension of time, to this Court.

9. This Court considers the application to strike out was misconceived. Bartlett, the claimant, clearly accepts the previous decisions to the effect that the document executed on 28 February 2007 was unenforceable. He seeks redress because he acted in the mistaken belief the agreement was enforceable and handed over the title deeds allowing the defendants to obtain the benefit of registration.

10. That claim is not affected by considerations of res judicata, estoppel, or abuse of process.

11. The judge at first instance was correct in dismissing the application to strike out though this Court does not agree entirely with his reasoning for so doing.

12. Bartlett’s claim is for redress because he handed over valuable property in the mistaken belief that agreement was enforceable and pursuant to it he would obtain a portion of the land in question. Such facts are pleaded but the relief claimed may need an amendment to ensure that all relevant matters are fully and properly litigated.

13. The appeal should be dismissed with costs.

Sir Robin Auld
President

Sir Gordon Ward, JA
Member

Justice Glen Williams, JA
Member