First, the question of the already felled logs and
what should be done. The Plaintiff seeks (by summons
fled on 9 January, 1996) the right to negotiate for
or
the sale of logs already felled. In contrast, the
Defendant applies (by summons filed on 8 January, 1996)
for the Order dated 27 December, 1995 to be varied to
allow the Defendant to extract the logs already felled
and arrange an export to a particular buyer. Posum
International Limited of Hong Kong, under an agreement
made in mid November. 1995.
It is not disputed that the primary concern of all the
parties is that the best possible prices are obtained for
the export of those logs. However, that is only one side
of the coin. The other equally important side relates to
the question of expenses. Irrespective of who does the
exporting, there will be expenses incurred which must be
taken into account. It would serve no useful purpose if
despite getting the highest prices for those logs felled,
the expenses that may be incurred should turn out also to
be very high. This Court therefore must strike a fair
balance in which it would be more likely than not that a
fair deal and the best possible price may be obtained
for
the sale of those logs.
When taking all relevant factors into account, the
scale tips more in favour of the Defendant than the
Plaintiff.
I note the following points in favour of the
Defendant.
(i) One of the Managing Directors of the Defendant
company, Vincent Samo Wateniau had been involved in
the
logging business as far back as 1987. The
Defendant company therefore had the necessary
personnel with
the relevant knowledge and experience
to deal in logging matters (see affidavit of
Vincent Samo Wateniau fled on 8 January, 1996).
When compared with the plaintiff's knowledge,
understanding and experience, there is little
evidence to even make a comparison. With the
experience, knowledge and understanding of its
Managing
Director, the whole work that will be
involved in hauling the logs to the log ponds right
through to their
final loading on the ship will be
better carried out by the Defendant company than the
Plaintiff. The chances
that such a big operation will
be successfully carried out to completion favours the
Defendant company.
style="marg"margin-top: 1; margin-bottom: 1">(ii) The Defendant company, it appears, already
have the necessary
equipment and machinery that would be needed on the site to carry out the operation. ion. If
not, it has a better
chance of making the necessary
arrangements to complete the export through to its
end than the Plaintiff.
Mr. Lavery had submitted that
the Plaintiff could make the necessary arrangements
with its Counsels assistance.
That may be true,
however it has not convinced me that that would be
the better course of action to take.
If all the
necessary machinery are already on the Island by
virtue of the Defendant company's operations,
then it
would definitely be more expensive to arrange for
machinery of other companies to be shipped to
the
Island for the necessary operation.
tyle="marg"margin-top: 1; margin-bottom: 1">(iii) Learned Counsel for the Plaintiff had
submitted against
the sugge of awarding the job
to the Defendant on the grounds that it had committed
d
itself to an agreement
with an overseas company for
the sale of those logs but not at what he calls a
satisfactory rate. He added
that the average rates in
the open market for kwila species of logs for
instance stand at about USD210.00
per cubic metres.
The Plaintiff he argues is in a much better position
to get the best price for those
logs. Unfortunately,
as I have already pointed out that is only one side
of the coin. The Defendant however
had pointed out
that a new or fresh agreement can be re-negotiated
with Posum International Limited of
Hong Kong. Mr.
Kama, of Counsel for the Defendant explained that
Posum International Limited of Hong Kong
had been
advised that whatever agreements had been entered
into would be subject to this Court's sanction
and
that therefore the Defendant may or may not sell its
logs to it. Mr. Kama also pointed out that there
is
another company which had expressed interest in
buying those logs. When compared with the Plaintiff,
it is my respectful view that the Defendant has a
better chance of getting the best possible price for
those logs, if not then any difference would be
minimal.
When all the above factors are put together, I am more
than satisfied that the Defendant company must be allowed
to export those logs at the best possible price in the
current market. The Defendant company therefore is not
necessarily bound to sell to Posum International Ltd. of
Hong Kong, if it can get a better price from another
buyer.
All the proceeds of sale of the logs however must
be paid into a solicitor's trust account, interest
bearing, in
both Counsel's names. Reasonable expenses may
then be deducted by consent of both parties. In the event
of disagreement,
then the Defendant may apply to the
Court for its approval. on notice to the plaintiff.
While on this topic, the Defendant must bear the
burden of ensuriat all necessary expenses are
satisfactorily documented
for Purposes of deduction.tion.
A related matter is the question of milling of
rejected logs. The approach described above must also be
taken, that
is that all proceeds of sale be attached and
reasonable expenses can be deducted by consent, in
default the Court's
approval may be sought on notice to
the plaintiff.
On the issue of the customary land dispute hearing
before the chiefs and the Local Court, that istter
between the
parties themselves to pursue. It . It is not
necessary for this court to make any orders.
The third and final matter raised relates to the
question of joinder. I am satisfied that Vincent Samo and
Clement
Diau beed as defendants in their ceir capacities
as representatives of the landowners, in contrast to the
claim
of the Plaintiff as the landowners.
ORDERS OF THE COURT
-
The interlocutory injunction restraining any
ny
further felling, extraction or exporting except
upon the express direction of the Court shall
continue until further orders or until trial and
determination of the issues in this case. The
interlocutory injunction shall apply to all
Defendants.
-
The Defendants shall be at liberty to arrange for
the export of the logs already felled at the best
possible price.
