Kaliuae v Tropic Island Enterprises Ltd [1995] SBHC 49; HC-CC 323 of 1992 (29 August 1995)

HIGH COURT OF SOLOMON ISLANDS

CIVIL CASE NO: 323 of 1992

JOHN MAETIA KALIUAE
AND
CAROLINE MAETIA KALIUAE

V.

TROPIC ISLAND ENTERPRISES LTD
AND
TED WILLIAM

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)

Hearing: 25th August, 1995
Ruling: 29th August, 1995

MRS. M. B. SAMUELS for the Plaintiffs
MS. J. C. CORRIN for the Defendants

PALMER J: This action was commenced when a Writ of Summons specially indorsed with a Statement of Claim was filed on the 10th of November, 1992. A supporting affidavit was also filed on the same date.

At the front page of that Writ, there is a clause marked “N.B.” which reads inter alia:

“This writ is to be served within twelve calendar months from the date thereof or, if renewed, within six calendar months from the date of the last renewal, including the day of such date, and not afterwards”.

This is in line with Order 8 Rule 1 of the High Court (Civil Procedure) Rules, 1964.

Rule 1 of Order 8 makes the position very clear on the question of renewals. It reads inter alia:

“No original writ of summons shall be in force for more than twelve months from the day of the date thereof, including the day of such date; but if any defendant therein named shall not have been served therewith, the plaintiff may, before the expiration of the twelve months, apply to the Court for leave to renew the Writ, ....”

No service of the writ was effected within the twelve months from the date it was issued; that is, 10th November, 1992.

On the 10th of November, 1994 exactly two years from the date of issue of the writ of summons, and clearly after it had ceased to be in force, the Plaintiffs applied by way of summons for leave to the Registrar of High Court to renew the writ of summons. The application was heard by the learned Registrar on the 16th of February, 1995, I believe. The order of the learned Registrar was dated the 16th of February 1994, but I think that must have been an error. The application was granted and the Plaintiffs proceeded to file a Notice of Motion for judgment on the 4th of July, 1995.

The Defendant now applies by way of a summons filed on the 8th of August, 1995 for orders inter alia, that:

(i) the time limit for appealing from the Order made ex parte by the Registrar on 16 February 1995 be extended; and

(ii) the said Order of the Registrar be set aside.

The application for enlargement of time to file an appeal against the Order of the learned Registrar is made pursuant to Order 64 Rule 5.

In her submissions in support of that application, Ms. Corrin of Counsel for the Applicant pointed out that the Defendant became aware of the Order of the learned Registrar renewing the Writ of Summons, after he had been served with a copy of the purported writ of summons, but by then the time limit allowed by Order 57 Rule 1A (3) had expired. Having heard Ms. Corrin and Mrs. Samuels on this point, I am satisfied that in the interest of justice, the time limit be enlarged to allow the appeal by way of this summons to be filed.

The next question for consideration is whether the Order of Renewal dated the 16th February, 1995 should be set aside.

As already pointed out, pursuant to Order 8 Rule 1, the Writ of Summons filed on the 10th of November, 1992 ceased to be in force after the 10th of November, 1993. No application for leave to renew the Writ was made prior to its expiration on the 10th November, 1993. There was no jurisdiction therefore to entertain the ex parte application filed on the 16th February, 1994 (some three months after the writ had ceased to be in force).

The Order of Renewal therefore dated the 16th February, 1994 is hereby set aside.

This disposes of this application and I need not consider the other grounds and the Notice of Motion for judgement filed on the 4th of July, 1995.

Costs in favour of the Applicant/Defendants.

A. R. PALMER
JUDGE