EMCO Pacific (SI) Ltd v Emmett [2012] SBCA 7; CA-CAC 45 of 2011 (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 / Chetwynd J)
COURT FILE NUMBER:	Civil Appeal Case No. 45/2011 - (On Appeal from High Court Civil Case No 287 of 2011)
DATE OF HEARING:	21 March 2012
DATE OF JUDGMENT:	23 March 2012
THE COURT:	Sir Robin Auld, President
	Sir Gordon Ward, JA
	Justice Glen Williams, JA
PARTIES:	EMCO PACIFIC (SI) LTD - Appellant
	-v-
	ANITA EMMETT - Respondent
ADVOCATES:
Appellant:	T Mathews and W Rano
Respondent:	M Tagini
	M Pitakaka for Ron Emmett
KEY WORDS:	Practice, Summary Dismissal of Claim, Claimant SEEKING ORDERS WHICH AMOUNT TO INTERFERENCE IN MATRIMONIAL PROCEEDINGS
EX TEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED:	DISMISSED
PAGES:	6

JUDGMENT OF THE COURT

1. Civil Case No 46 of 2008 is concerned with matrimonial issues between Anita Emmett, the present respondent, and Ron Emmett. The marriage between them was dissolved by decree absolute on 15 November 2008. The parties remain in dispute with respect to division of matrimonial property.

2. In a ruling on 13 July 2008 Naqiolevu J held that, though the Islanders Divorce Act did not give the court jurisdiction to make an order by way of property settlement, section 17 of the Married Women’s Property Act 1882 was part of the law of general application in the Solomon Islands. Following earlier authority he held that in divorce proceedings either husband or wife could apply to the High Court with respect to any questions as to title or possession of property alleged to be matrimonial property. He went on to say that in this case:

“The Court is of the view that the Petitioner is entitled to the distribution of the matrimonial properties. However, will not grant the declaration sought until it is satisfied as to the individual property rights of the parties to the matrimonial property under these proceedings.”

3. Those rulings and orders were not challenged on appeal.

4. The parties married in 1966 and in that year incorporated Emmett Logging (SI) Ltd (“Emmett Logging”) and transferred all their assets into that company. Mrs Emmett and her husband each had a 50 per cent shareholding in that company. That is still the position. The parties separated in 2003.

5. The appellant company (“Emco”) was incorporated in 2003 with Ron Emmett and his son, William Emmett, each having a 50 per cent shareholding therein.

6. Various orders have been made by a number of judges with a view to progressing the property dispute in Case 46 of 2008.

7. It has never been asserted by Mr Ron Emmett that any of those orders were beyond jurisdiction. None of those orders has been successfully appealed. One of those orders requires the valuation of assets, including assets of Emmett Logging and Emco. A question has been raised by Mrs Emmett as to the validity of the transfer of property from Emmett Logging to Emco. That is an appropriate issue to be canvassed in the proceedings seeking division of matrimonial property. The court is yet to make findings as to what is matrimonial property and what is property owned by other interests. Where necessary evidence can be called seeking to establish property is owned by one or other of the companies and is not matrimonial property.

8. It would appear that Ron Emmett may not have complied with some of the interlocutory orders made and maybe he is in contempt; but that it is not material for present purposes.

9. By application filed on 1 April 2011 Emco sought an order that it be joined as a party in Civil Case 46 of 2008. Mrs Emmett opposed that application.

10. That application came before Chetwynd J on 5 May 2011 when Mr Rano appeared for Emco, Mr Balea for Mr Ron Emmett and Mr M Tagini for Mrs Emmett. The application for joinder was summarily dismissed on that day. No appeal has been lodged against that order. That is of background relevance only in the present appeal.

11. Subsequently on 27 July 2011 Emco commenced an action against Mrs Emmett as First Defendant and Mr Ron Emmett as Second Defendant; Civil Claim 287 of 2011. Emco sought the following orders:

(1) That the First and Second Defendant be restrained from unlawfully interfering with the properties of the Claimant.

(2) That the First and Second Defendants be permanently restrained from subjecting the assets of the Claimant to unnecessary expense.

(3) That the First and Second Defendant be permanently restrained from dissipating the money currently held on trust from the sale of MV Buccaneer, money of which is owned by the Claimant.

(4) Damages for loss suffered by the Claimant from the proceeds of MV Buccaneer and that the order subjecting the property in trust be discharged.

(5) Damages for loss and inconvenience suffered by the Claimant for not able to utilise its assets in full because of the orders sought by the First Defendant.

(6) Cost of this action against the First Defendant.

12. In the statement of case, the following allegations were made:

(5) In Civil Claim Number 46 of 2008, the First Defendant sought to subject several properties including properties owned by the Claimant to a bitter matrimonial property distribution with the Second Defendant. Also in the same proceeding the First Defendant applied for and was granted an order subjecting the proceeds of the sale of MV Buccaneer to a restraining order without first establishing her proprietary interest and second without any undertaking as to damages. The First Defendant again applied for and was granted an order for properties of the Claimant to be subjected to valuation and thereafter for the cost of the valuation to be paid out from the proceeds of the sale of MV Buccaneer. In fact had succeeded in withdrawing the sum of AUD$2000 from that restrained fund and sent it to the Valuer as his cost. She did so without the consent of the Second Defendant or the Claimant.

(6) The Claimant avers that the properties particularised are properties owned by it. Unless the First Defendant can provide proof that the properties are not owned by the Claimant, she cannot interfere nor has the necessary proprietary interest to claim those properties for matrimonial distribution.

(7) Without proof of any proprietary interest or ownership, the First Defendant’s action in using the courts for her ends constitutes an abuse of process and at best amounts to unlawful interference to the Claimant’s property interest and rights.

13. By application filed on 4 August 2011 Mrs Emmett sought orders that claim 287 of 2011 be struck out on the grounds that it was an abuse of process, that it was frivolous and vexatious, and it disclosed no reasonable cause of action. An order was also sought that Emco pay costs on an indemnity basis.

14. The application was heard by Mwanesalua J on 3 October 2011 and for reasons published on 2 November 2011 he ordered that the claim be struck out and dismissed, and further ordered Emco to pay Mrs Emmett’s costs on an indemnity basis. It is from those orders that Emco appeals.

15. Mwanesalua J held that the claim was an abuse of process because it was effectively another attempted route to involve Emco in the matrimonial property proceedings, a claim which had previously been rejected by Chetwynd J. The learned judge concluded it was an attempt by Emco and Ron Emmett to curtail the matrimonial property proceedings. He also held the claim was vexatious and disclosed no reasonable cause of action.

16. Counsel for Emco requested that Mr Ron Emmett be represented at this hearing in case any issue arose directly affecting him. Mr Pitakaka appeared on the appeal but did not adopt any adversarial role; he abided the order of the court. No order for costs should be made in favour of or against him.

17. As Chetwynd J summarily dismissed the application on 5 May 2011, this Court does not treat the present proceedings as an abuse of process because it was the second attempt to involve Emco in the matrimonial proceedings, but rather the Court will consider the claim made in Civil Claim 287 of 2011 on its merits.

18. The conduct of the First and Second Defendant referred to in paragraph 1 of the orders sought is principally, if not entirely, conduct in 46 of 2008. A High Court judge dealing with conduct in that action is more than capable of ensuring there is no unlawful interference with property of Emco. Any error made by a judge in that regard can be corrected on appeal. It is entirely inappropriate for there to be an order in another action interfering with the conduct of the matrimonial proceedings.

19. Similar observations can be made with respect to the second order sought. There could never be a permanent injunction restraining a party to 46 of 2008 from making claims or submissions with respect to what that party asserted to be matrimonial property or property owned by some other entity.

20. The Court in 46 of 2008 made an order that until further order the proceeds of the sale of MV Buccaneer be held on trust. There has been no appeal from that order. Again it would be wrong for the High Court in some other proceeding to make orders affecting that trust, particularly orders of the type particularised in paragraphs 3 and 4 of the orders sought. Mr Ron Emmett as defendant in 46 of 2008 may apply to have the trust varied or discharged and would be in a position, if necessary, to call evidence from Emco relevant to any such application.

21. The fifth order sought refers to “orders sought by” Mrs Emmett presumably in 46 of 2008. If the court in 287 of 2011 were to make an order of the type sought it would amount to that court holding that the court in 46 of 2008, by making an order or giving consideration to making an order, gave Emco an entitlement to seek damages against Mrs Emmett. No court could make such an order affecting an order made by a court in other proceedings or affecting the right of a party to make submissions in those other proceedings.

22. Mr Mathews essentially submitted that the property of Emco was being compromised by allegations made in the matrimonial proceedings and justice demanded that it be given the right to make submissions in the matrimonial proceedings or otherwise obtain relief in 287 of 2011 ensuring its property rights were protected. As already pointed out, if only through Mr Ron Emmett who has a 50 per cent shareholding in Emco, its interests can be adequately protected by the calling of necessary witnesses in the matrimonial proceedings.

23. For those reasons it is clear that essentially the action is an attempt to curtail the matrimonial proceedings. The learned judge at first instance was clearly correct in concluding the claim was vexatious and disclosed no reasonable cause of action. Even having regard to the caution referred to in cases such as Evans v Bartlam [1937] AC473 at 483, General Steel Industries Inc. –v- Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129, and Allison –v- Medlin [1996] SBCA3, this is clearly a case where it was appropriate to strike out a claim summarily.

24. A stage has been reached where the issues relating to matrimonial property in case 46 of 2008 should be determined expeditiously. For a variety of reasons which this court is not in a position to resolve, there has been inordinate delay in progressing that dispute. This court can do no more than recommend that a further directions hearing be held as soon as possible in 46 of 2008 with a view to having a hearing to determine what is matrimonial property so that orders can be made with respect thereto.

25. The present appeal should be dismissed with costs.

Sir Robin Auld
President

Sir Gordon Ward, JA
Member

Justice Glen Williams, JA
Member