Mathew v Reef Pacific Trading Ltd [1994] SBHC 36; HC-CC 065 of 1991 (7 October 1994)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 65 of 1991

PETER ALEXANDER MATHEW

-v-

REEF PACIFIC TRADING LIMITED

High Court of Solomon Islands
(Muria, CJ.)

Hearing: 30 September and 3 October 1994
Judgment: 7 October 1994

J. Hawkins for Plaintiff
T. Kama for plaintiffs in CC246/91
K.L. Milte for the Defendant

MURIA CJ: The Defendant has applied for the release of the sum of $115,540.56 now held by the Court to them, subject to the amount of $26,642.48 being taxed costs in respect of a number of actions and $13,062.00 being security for costs in an Appeal Case, CA3/94, now pending before the Solomon Islands Court of Appeal.

Mr Kama who appeared on behalf of the plaintiffs in CC246/91 objected to the release of the amount now in court stating that his clients in that case (CC246/91) had obtained a judgment against the Defendant in that case and who is the same Defendant in this case (CC65/91) in the sum of $402,038.14 which has not yet been satisfied. Alternatively, Mr Kama asked the court to attach the sum held by the court pending the determination of the CA3/94.

Mr Milte who appeared for the Defendant submitted that Writs of fi fa had been issued against the Defendant in respect of CC65/91, CC119/91, CC43/92 and CC224/92, resulting in all the properties of the Defendant company being seized and sold. A sum well above $300,000.00 had been received and paid into court. It was further submitted by Mr. Milte that the plaintiffs in those cases by whom writs of fi fa had been issued had all been satisfied leaving the balance now still held by the court. Counsel, however, conceded that the costs still outstanding in those cases would have to be met out of this money which is still in the hands of the court. As to the plaintiffs in CC246/91, Mr. Milte argued that only their costs as ordered by the court to be paid out of the surplus fund held by the court should be paid to them.

The Plaintiffs in all the other cases except the plaintiffs in CC246/91 had all taken steps to enforce their judgments. The funds held by the court are the result of the various enforcement actions taken by the plaintiffs in those various actions.

Mr Kama relied on O.45, r.9 of the High Court Rules. That rule entitles the plaintiffs in CC 246/91 to apply for leave to issue execution against the Defendant. It does not assist the plaintiffs in CC 246/91 to ask for the surplus funds now held by the court to be attached. There is however an order of the court in CC 246/91 which states that the surplus funds be held as security for the costs of the plaintiff. How much are those costs, it is not known. But I think the plaintiffs in CC 246/91, if they want part of the surplus funds to go to them to satisfy the judgment, would have to take the appropriate course, under the rules like all the other judgment creditors rather than simply seeking to have some claim over the surplus now held by the court.

There are clear authorities that funds held by the Registrar of the Court are not a subject matter of attachment. See Dolphin -v- Layton [1879] UKLawRpCP 6; [1879] 4 CPD 130; Spence -v- Coleman [1901] UKLawRpKQB 87; [1901] 2 KB 199 and Vernon -v- Perry [1962] VicRp 33; [1962] VR 223. The Registrar's duties with respect to money in his hands are laid down by the Rules of court and he is under duty to distribute the money in his hands in a particular way.

In the present case the Registrar received the funds through execution of judgments in respect of the various cases other than CC246/91. The plaintiffs in those various cases have been paid out of the funds in the hands of the Registrar and a surplus of those funds is still left in the hands of the Registrar.

The authorities are against the attachment of the surplus fund held in the hands of the Registrar and Mr. Kama's application in this case cannot be acceded to. There is however an order of this court regarding the payment of plaintiff's costs in CC246/91 out of the surplus fund.

I am of the view that the surplus funds, subject to payment of costs as ordered by the Court, should be paid to the Defendant in this case.

On the materials before the court, the costs shown in respect of the cases as ordered by the court are as follows:

CC 65/91 12,488.60

CC 120/93 8,855.28

CC 243/93 8,162.60

CC 261/93 8,252.60

CC 299/93 1,372.00

CA 3/94 13,062.00

=========

$52,193.08

The amount of the costs ordered in CC 246/91 has not been specified. I am prepared to set aside an amount of $10,000.00 as security for costs in that case. This amount is equivalent to the amount as ordered by this court to be deposited by the plaintiffs as security for costs in that case.

The total costs therefore to be accounted for out of the surplus fund now in the hands of the Registrar of High Court taking into account the costs to be set aside in respect of CC246/91 is $62,193.08 which must remain in the hands of the Registrar on account of costs to be paid in respect of the cases mentioned. The balance of the surplus fund should be paid to the Defendant.

I order the balance of the surplus funds after deduction of the costs to be paid to the Defendant.

(G.J.B. Muria)
CHIEF JUSTICE