Rose v Maeke [1995] SBHC 86; HC-CC 360 of 1995 (15 December 1995)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 360 of 1995

LESLIE GRAHAM ROSE

vs.

ALFRED MAEKE

(Palmer J)

Hearing: 14 December, 1995
Ruling: 15 December, 1995

C. Ashley for Plaintiff
Defendant in Person

PALMER J: By order of the 1st December, 1995, restraining orders inter alia were imposed over four (4) containers of timber marked as TEXU 360846-2, TPHU 693244-5, TPHU 809739-8, and ICSU 810080-0, from being sold. The Plaintiff claims that those timbers should be sold to him and not to anyone else.

The Plaintiff relies inter alia on the terms of a Partnership Agreement entered into between him and the defendant in August of 1993 and a new Agreement dated 10 October, 1995. By virtue of the terms of both Agreements, the clauses of which are basically similar, in particular clause 13 of the Partnership Agreement, the Plaintiff claims that the Defendant had committed a breach of the provisions of that clause. Accordingly, he says that those timbers sold in breach should be restrained and re-sold to him.

With respect, that cannot be so. His claim as correctly sought and referred to in his Statement of Claim filed on 1st December, 1995, and affidavit in support filed on the same date, is for damages for breach of the terms of the Partnership Agreement. It is legally wrong to restrain goods that have already been sold to a third party by one of the Partners. The third party would have had a valid legal right to those goods unless of course it can be shown that there may be fraud involved. Fraud, however, will have to be specifically pleaded, and also the third party, Bill Philip will have to be joined. That has not been done.

In contrast, there is clear evidence to show that the timbers have been sold to a third party by the Defendant. In the affidavit of Alfred Maeke filed on the 6/12/95 at paragraph 9, he states that the 4 containers referred to have been fully paid for. Also in the affidavit of William Martin Philip filed on 6 December, 1995, he states inter alia at paragraph 7 that the goods have been fully paid for.

In the circumstances, I am satisfied that the order sought in paragraph 4 of the Summons of the Defendant seeking release of the said 4 containers to Bill Philip is proper and should be granted. However, the proceeds of sale must remain attached and that there must be a full and proper account provided for the total purchase price of those timber.

Further, in the exhibits attached to the affidavit of William Martin Philip, referred to at paragraph 3 of the said affidavit, there is a particular account of the Defendant in which several payments were made; account no. 039-030-01-127799-01 in the names of Alfred and Jessie Maeke:

(i) November 3, 1995, payment of $8,030.80 was made;

(ii) 7 November, 1995: $5,500.00

(iii) 10 November, 1995: $16,000.00

(iv) 14 November, 1995: $5,169.40

(v) 21 November, 1995: $2,853.00

(vi) 22 November, 1995: $3,770.80

(vii) 23 November, 1995: $5,028.20

(viii) 24 November, 1995: $10,000.00

The above account at Westpac Bank shall also be subject to restraining orders of the Court, until further orders.

Paragraphs 1, 2, 3 and 5 of the summons of the defendant shall be adjourned to a date to be fixed to give opportunity to the defendant to instruct a Solicitor to present his case.

Costs of this application to be borne by the Plaintiff.

Mr Ashley has pointed out that other properties of the Partnership Agreement specified in the Interim Order dated 1 December, 1995 at paragraph 5 have not been complied with. 14 days will be given to have those items surrendered to the court or if they are in the Provinces then they should be surrendered either to the Police or the Magistrate’s Court for safe-keeping until further orders of the Court.

As regarding paragraph 5 of the Order for an account to be provided, this normally takes time and accordingly 30 days will be given to have the accounts sorted out and filed in Court.

Finally, the parties should in my respectful view seriously consider the question of appointment of a receiver of the Partnership under O.53 Rule 6(1) of the High Court Civil Procedure Rules.

Orders of the Court:

1. The Interim Order of the Court dated 1 December, 1995 be varied so that paragraph 1 be amended to give the defendant 14 days within which to comply.
   
2. The Interim Order of the Court be varied so that paragraph 2 be amended to allow the release of the 4 containers TEXU 360846-2, TPHU 693244-5, TPHU 809739-8, ICSU 810080-0 TO Bill Philip immediately. All other property, personal or real of the Partnership however will continue to be subject to restraining orders.
   
3. (a) The sale proceeds of the Partnership Timber in Westpac Bank Account No. 039-030-01-127799-01 be attached.
   

(b) Any other payment of the sale proceeds due (if any) shall be attached and paid into a trust account (IBD) in the name of the Plaintiff’s solicitor.

(c) A statement of account of the total sale proceeds shall be filed in 14 days.

4. Paragraph 5 of the Interim Order of 1 December 1995 be amended to give the Defendant 30 days within which to comply.
   
5. Costs of this application in favour of the Defendant.
   

A.R. PALMER

JUDGE