Masa v Kololeana Development Company Ltd [1996] SBHC 16; HC-CC 361 of 1995 (29 March 1996)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 361 of 1995

ROLLAND MASA & OTHERS

KOLOLEANA DEVELOPMENT COMPANY LIMITED & OTHERS

BefMuria, ria, CJ

Hearing: 22 February 1996 - Judgment: 29 March 1996

Counsel: J. R. Moti for Applicant/First Defendant; A. Nori for Respondents/Plaintiff

MURIA URIA CJ:

The First Defendant applies for an order pursuant to paragraph (b) of the Order of this Court as amended on 8th December, 1995. Paragraph (b) of that order is in the following term:

"(b) that the gross proceeds from the sale of logs from the subject land be paid into Court by the First Defendant and reasonable expenses incurred or to be incurred in connection with the sale of the logs be paid out of the sale proceeds upon application made therefor to the court."

The order now sought is for the release of the sum of $364,476.97 to the First Defendant to meet its financial obligations to various bodies namely, the Second Defendant, the employees of the First Defendant, the Solomon Islands Government, the Solomon Islands National Provident Fund and other creditors. The total sum of $364,351.95 is made up of $295,351.29 for technology and management services rendered by the Second Defendant to the First Defendant under clause 21 of the Technology and Management

Agreement and $69,125.68 for debts and expenses incurred in connection with the operations of the First Defendant on the land in question. These debts and expenses include remuneration payable to employees, PAYE tax, NPF contributions, Bank charges, office administrative costs and Kuzi Camp operational costs. The first defendant argued that these sums are proper expenses to be paid out pursuant to paragraph (b) of the Order of 8 December 1995.

Understandably the plaintiffs oppose the application arguing that the expenses sought by the first defendant to be paid out are not "reasonable expenses incurred or to be incurred in connection with the sale of the logs" as contemplated in paragraph(b) of the said Order. It is argued by Counsel for the plaintiffs that paragraph (b) only allows payment of expenses incurred in relation to work done or authorised under paragraph(a) of the Order. On that premises, Counsel also argued that only expenses incurred after the 8th December 1995 in connection with the sale of logs are permitted to be paid out and not those incurred prior to the 8th December.

It is also the plaintiff's case that the validity of the first defendant's logging licence has been challenged and as such the validity of the agreement entered into between the first and second defendants is also in issue. That being the case, argued counsel for the plaintiffs, no payment ought to have been made out of the logs to the second defendant under clause 21 of the Technology and Management Agreement which was entered into between the first and second defendants on 27 April 1994.

It seems to the Court that the central issue in this application is whether or not under under the Order of 8 December 1995 payments sought by the first defendant can properly be said to be permitted in terms of paragraph (b) of the said Order.

I am conscious of the assertion by the parties as to the interpretation to be given to the words used in the Order. To that issue I shall now turn.

The Order of 8 December 1995.

In order to determine the issue posed, it will be necessary to consider two questions arising out of the Order of 8 December 1995. These questions are.. Firstly, what is reasonable expenses incurred "in connection with" the sale of logs? Secondly, whether the debts and expenses of $69,125.68 and payment of $295,351.29 for technology and management services under Clause 21 of the Technology and Management Agreement can be regarded as reasonable expenses incurred "in connection with" the sale of logs from the subject land. The starting point is the Order itself which I shall set out in full hereunder:

"(a) that the First Defendant and the Second Defendant, their employees, agents and contractors be permitted to enter upon Lolobo Mandeatungu and Sunguaga tribal land areas in Kolombangara ("the subject land") and remove, haul and export all logs already felled therein; and

(b) That the gross proceeds from the sale of logs from the subject land be paid into Court by the First Defendant and reasonable expenses incurred or to be incurred in connection with the sale of the logs be paid out of the sale proceeds upon application made therefor to the Court.

(c) the First and Second Defendants within 14 days from the date of the sale of the said logs supply report on the sale showing volumes, species and market price of logs sold."

It must be noted that the above Order was made varying the Order made by this court on 1 December 1995 prohibiting the 1st and 2nd defendants their servants and agents from entering the three tribal land areas mentioned. The parties in these proceedings have, understandably, sought to place what they thought should be the meaning to be ascribed to the words used by the Court in the order. In view of the nature of the application now before the Court, it is not surprising that the first defendant seeks a wide construction of the words of the order while the plaintiffs favour that of a narrower construction.

The question: What is reasonable expenses incurred in connection with the sale of logs?

This is not the first time that words such as "reasonable," "incurred' and "in connection with" have been the subject of judicial determination. The law reports have contained numerous instances in which the Courts have dealt with these expressions. I shall only refer to a few of those instances which are sufficient for our present purposes.

The word "reasonable", argued the first defendant here, had been considered in numerous cases and that it means "reasonable in the circumstances." Such of course was what Lathan CJ said in Opera House Investment Pty Ltd -v- Devon Buildings Pty Ltd [1936] HCA 14; (1936) 55 CLR 110 where at page 116, His Honour said:

"The word 'reasonable' has often been declared to mean 'reasonable in all the circumstances of the case'. The real question, in my opinion, is to determine what circumstances are relevant. In determining this question regard must be paid to the nature of the transaction. A circumstance which had no relation to the property which was the subject matter of the transaction but which depended entirely upon the personal position or personal desires of the owner of the property, would not, in my opinion, be a relevant circumstance in determining what was reasonable." .

and in the same case Starke J also said that the word "reasonable" was a relative term and that the facts of the case must be considered before what constituted a reasonable contract could be determined.

In Re A Solicitor [1945] KB 368 at 371, it was there stated that the word 99 "reasonable" has in law the prima facie meaning of reasonable in regard to those existing circumstances of which the actor, called on to act reasonably, knows or ought to know. Again in Waters -v- Public Transport Corporation [1991] HCA 49; (1991-1992) 173 CLR 349 it was stated that "reasonable" referred to what was reasonable in all the circumstances of the case. In Cheung -v- Tanda (1984) SILR 108 the Court of Appeal found that the apportionment of the claim by the dependants' under the Fatal Accidents Acts 1846 - 1959, where by the deceased's child was awarded 35% was "reasonable" taking into account the circumstances of Solomon Islands at the time.

It is clear from all these authorities that to determine what is 'reasonable' regard must be had to the nature and the circumstances of the case at hand. The circumstances, of course, must be relevant to the subject matter under consideration as was pointed out in the Opera House Investment case. I shall return to this aspect of the case later in this judgement. For now let me turn to the other expression used in the order and this is the word "incurred".

The order speaks of reasonable expenses "incurred". The word ''incur" is not a term of art. It is a word of common usage and so one must look for the common meaning of the word itself. In the Shorter Oxford English Dictionary the word "incur" is defined to mean". . . "to render oneself liable to; . . . to bring upon oneself." In the Oxford Advanced Learner's Dictionary New Edition the word "incur" is defined to mean "bring upon oneself: incur debts great expense . . . "

The word "incur" had also been considered in a number of tax cases where it was used in connection with the word "expenditure." In the New Zealand case of King -v-Inland Revenue Commissioner [1974] 2 NZLR 190 dealing with expenditure incurred as being deductible from assessable income, the Court said:

"A deduction may be allowed . . . in respect of 'expenditure incurred' although there has been no actual disbursement if, in the relevant income year the tax payer is definitely committed to that expenditure."

In New Zealand Flax Investments Ltd -v- Federal Commissioner of Taxation [1938] HCA 60; (1938) 61 CLR 179 the High Court of Australia dealing with the expression "losses or outgoings incurred" said:

" 'Incurred' does not mean only defrayed, discharged, or borne, but rather it includes encountered, run into, or fallen upon. ... But it does not include a loss or expenditure which is no more than impending, threatened or expected"

In Emu Bay Railway Co. Ltd -v- F.C. of T [1944] HCA 28; (1944) 71 CLR 596, Sir John Latham indicated that to satisfy the word "incurred" ... it is sufficient to say that the liability must be "presently incurred and due though (it may be) not yet discharged"

It can be seen that the rationale of those cases is that liability to pay is "incurred' even though no actual payment was made. With respect, this is also the line of interpretation I would adopt in respect of the word "incurred" as used in the order of the 8 December 1995.

I shall now consider the next expression used in the order and this is the expression, "in connection with." Again this expression has already been the subject of numerous judicial determinations.

There is a common thread running through those cases which had judicially considered the expression "in connection with" and that is, there must be some nexus or substantial relation between that which is done or to be done and the subject matter connected to that which is done or to be done. That there must be some nexus between that which is done and the subject matter had been expressed in ITP (London) Ltd -v- Winstanley [1947] 1 All ER 177. In that case the appellants were convicted of having unlawfully conducted in connection with the trade or businesses of the second appellants. Lord Goddard CJ had this to say at p. 178:

"Section 26(1) simply provides: 'It shall be unlawful to conduct ... in connection with any trade or business ... (a) any forecasts of the result ... of a future event.' ... Here it is said that the appellant company were conducting their competition in connection with the trade or business of the second appellants. The second appellants are carrying on a business, but the Act does not say in connection with any person who carries on trade or business. The Act says: "in connection with any trade or business," and there must be some nexus, as it seems to me, between the carrying on of the competition and the trade or business in respect of which it is said to have been carried on. 1 do not think the words of the subsection are apt to create an offence in the present case." (The emphasis is mine)

In the Australian case of Berry -v- Federal Commissioner of Taxation [1953] HCA 70; (1953) 89 CLR 653, at 658 Kitto J, in explaining the words 'for or in connection with', said:

"The words 'for or in connection with' imply that a consideration may satisfy the definition as being 'in connection' with one of the subjects mentioned, although not 'for' it. Now, while it is true that a payment cannot be described as a consideration 'for' anything but that which is given in exchange for it, to speak of a consideration being 'in connection with' an item of property parted with is to use language quite appropriate to the case of a payment received as consideration 'for' something other than the property in question, so long as the receipt of the payment has a substantial relation, in a practical business sense, to that property. A consideration may be 'in connection with' more things than that 'for' which it is received." (The emphasis is mine)

As pointed out by Kitto J, substantial relation to the subject matter will satisfy a payment as consideration being "in connection with" that subject matter.

The Privy Council, in the New Zealand case of Hatrick (A) & Co. -v- R [1923] A.C 213, also considered the expression "in connection with" in relation to the Minister's power to fix scales of charges to be paid for goods carried on a railway or stored in .... any shed, store in connection with" a railway. The Court pointed out that:

"... these words cannot apply to something done on a space or in a building merely contiguous to or abutting upon a railway, even though it be the property or has no connection with the proper business of a railway, as a carrier of passengers and goods by rail, as a carrier of passengers and goods by rail, or in other words that the expression In connection with a railway" means connected with, subserving and being ancillary to, the business of a railway as such carriers ... These words ... must be directed to something different from propinquity or contiguity, and in their Lordships' view, having regard to all the provisions of the statue, mean in s 10 in connection with the business and operations of a railway as a carrier of goods by rail."

Again the notion that there must be some connection between the thing done and the subject matter or that the thing done must form part of that subject matter is pointed out in Hatrick's case. That case and others which I have cited have been very helpful when dealing with the present case.

Having dealt with the various expressions used in the order, I shall now return to the question posed earlier in this judgement. What is "reasonable expenses incurred in connection with the sale of logs?" This in my judgement must be a question of fact. What has to be done is to take the expenses and consider if they are reasonable in the circumstances and then to decide if the expenses have been incurred or due or rendered liable to be paid and then to determine if the expenses incurred or liable to be paid are connected with or substantially related to or form part of the sale of the logs. The amounts sought by the first defendant to be paid out in the present case are $295,351.29 and $69,125.68.

I take first the amount of $69,125.68 and consider if that is a reasonable expense incurred in connection with the sale of the logs. This amount is said to be, and has not been disputed by the plaintiffs, for salary and wages of the employees of the first defendant, PAYE Tax, NPF contributions, Bank charges, office administration costs (such as rental, vehicle fuel/oil, electricity, water and stationery) and operation costs at the first defendant's camp (for fuel/oil, petrol, spare-parts, provisions and supplies). There can be no doubt that the operations of the first defendant include carrying out that which was authorised by paragraph (b) of the order. The expenses which would be incurred in connection with that operation must necessarily include, in my view, those expenses outlined in paragraph 9 of Lionel Hong's affidavit. For remuneration of the employees engaged in the operation (sale of the logs) together with PAYE tax and NPF contributions are expenses directly associated or connected with the work on the sales of the logs carried out. The same must also be said about the operational costs at the Camp where the operation had been undertaken. As to the bank charges, I feel this is equally a proper payment to be made by the first defendant to the bank in this case. This is what Robert Goff J in Iraqi Ministry of Defence -v- Arcepey Shipping Co. SA (The Angel Bell) [1980] 1 All ER 480, at 487 called "payments .... in the ordinary course of business." Such a payment should not be allowed to be prevented by interlocutory injunctions. For to do so, Robert Geoff J said:

"would be to stretch it beyond its original purpose so that instead of preventing abuse, it would rather prevent businessmen conducting their businesses as they are entitled to do so."

The Angel Bell case concerns a Mareva injunction but in my view what has been said by Robert Geoff J is equally applicable in the case of an interlocutory injunction such as the present one. The expenses of administering the head office of the first defendant are also payment which would normally have been made out in the ordinary course of business and no doubt had there been no injunction, such expenses would have been paid out of the proceeds of logs cut, extracted and sold.

In my judgement all the expenses deposed to by Mr. Lionel Hong in paragraph 9 of his affidavit are expenses reasonably expected of the first defendant to pay out being expenses incurred in connection with the sale of the logs which is as a commercial activity forming part of or connected with operation of the first defendant.

I now pass on to consider the position of the sum of $295,351.29 for technology and management services to be paid out of the proceeds of the sale of the logs. Again I repeat the obvious question here and, that is, whether that amount is a reasonable expense incurred in connection with the sale of the logs. As I mentioned earlier, counsel for the plaintiffs strongly argued that this request for payment under Technology and Management Agreement (Clause 21) cannot be claimed under the order. To do so, submitted Counsel, would be to pre-empt the validity of the agreement which it is argued, depends on the validity of the Logging licence. It is also submitted that to allow payment under clause 21 of the Agreement would result in the plaintiffs being deprived of monies which may be due to them, if they succeed in their action.

It has not been suggested nor has it been argued that. the amount of $295,351.29 payable by the first defendant to the second defendant for technology and management services under the Technology and Management Agreement is unreasonable. The issue in my view is one of whether in all the circumstances of the case it is reasonable to say that the amount is properly an expense incurred in connection with the sale of the logs.

If the words "expenses incurred in connection with the sale of the logs" are to be given a narrow construction then it would mean this, that the only expenses which can be said to be incurred in respect of the sale of the logs would be only those expenses incurred at the time of the sale of the logs and it would therefore exclude the expenses substantially related to it such as the remuneration of those engaged in the sale, be that remuneration in terms of wages or payment to carry out that activity of the company (first defendant). For my part I would view such a restrictive construction of those words as unwarranted and inconsistent with judicial authorities. In the words of Lord Penzance "that would be a construction of a most inconvenient characters." Lawrie -v- Lees (1881) 7 App.Cas.19. The cases that I have referred to clearly show that the words referred as used in the order of 8 December 1995 must be accorded with an open mind and a wide constructive interpretation. There are practical business senses and realities which cannot be ignored in cases, such as the present one where the second defendant has an existing contract under the Technology & Management Services Agreement.

Among other things, the Technology & Management Services Agreement provides that the first defendant has appointed the second defendant to enter and undertake timber operation in the concession area. It has also been agreed between them that in connection with the timber operation the second defendant provides supervision and management; transportation of felled logs and loading of such logs onto freighters; maintenance of machinery and equipment; expertise and suitable labourers; assistance as to marketing of the logs; assistance in proper indexing and numbering of logs showing quality, quantity, species and owners of the logs; and other requirements needed from time to time. The cost of all the requirements just mentioned will have to be met by the second defendant.

It will be noted that in accordance with its obligation under the Agreement and in compliance with the Order of this Court, the second defendant and also the first defendant entered the land in question, extracted the logs already felled and exported them and the proceeds ($496,614.17) paid into Court with the affidavit deposing to the species, quantity and volume of logs extracted, quantity, volume and prices of logs exported and quantity and volume of timber remaining at the log pond filed in Court on 10 January 1996. Looking at all these from a practical business sense it would not take much of an imagination to see the nexus or the substantial relation or the connection between the expenses incurred and claimed by the second defendant and that which was done, namely, the sale of the logs in this case. Clearly there must be. If that be so, then it is rightly a debt owing to the second defendant by the first defendant for services rendered by the second defendant in connection with the sale of the logs.

Assuming that the first defendant refused to pay the second defendant's claim of $295,351.29 for services rendered under the Technology & Management Services Agreement, the second defendant is entitled to come to Court and seek an order for the payment of that sum owing under a contract and if still not paid the second defendant may well be entitled to seize the asset (the proceeds of the sale) covered by the injunction and recover his judgement debt. For a judgement creditor has a superior right to the defendant's assets than someone with a mere restraining order. See The Angel Bell case (supra).

The argument by the plaintiffs that to allow payment under clause 21 of the Agreement would be to pre-empt the validity of the logging licence under which the first defendant is operating. In support of that argument, Counsel for the plaintiffs relied on the words of Scrutton LJ in Re Mahmoud and Ispahani [1921] 2 KB 716 where the learned Law Lord said:

"If this contract is prohibited by (statute) the fact that the person who entered into the contract honestly believed that he was not breaking the statue, because he was told by the other party that he had a licence, is no defence".

Counsel further relied on what was said by Parke B, in Cope -v- Rowlands (1836) 2 M & W 157, to which Scrutton LJ referred in Re Mahmoud and Ispahani. Parke B., said:

"It is perfectly settled that where the contract which the Plaintiff seeks to enforce, be it expressed or implied, is expressly or by implication forbidden by the common or statute law, no court will lend its assistance to give it effect."

However the case of Re Mahmoud and Ispahani deals with a matter of different nature altogether. It concerns an order made by the Food Controller prohibiting the sale of certain articles one of which was "linseed oil" within the United Kingdom to a person who has no licence to buy it. The plaintiff in that case had a licence to sell and sold linseed oil to the defendant who had no licence to buy it. Clearly, that was prohibited and so the Court could not enforce the contract which must be illegal as being in contravention of the order made under the Defence of the Realm Regulations.

The position in the present case is different to that in Re Mahmoud and Ispahani. In the case now before the Court the first defendant had obtained a licence to carry out logging operations in the areas concerned. Such a licence is normally issued by the Commissioner of Forest Resources after complying with the procedure laid down under the Forest Resources and Timber Utilisation Act.

Pursuant to that licence the first defendant had carried out its operation in the areas and entered into Technology & Management Agreement with the second defendant to assist in carrying out its operations. The validity of the licence has now been challenged by the plaintiffs. But it does not follow that because of that challenge the first defendant should be precluded from meeting its debts under the Agreement incurred before the injunction as well as after the injunction as occurred in this case. The first defendant is expected to pay its debts under this particular Agreement for services rendered to it by the second defendant in assisting it to carry out its operations, part of which was the export of the logs even if the licence is eventually found to be invalid. The injunction should not be used to prevent its genuine debts: See A -v- B (Intervening) [1983] 2 Lloyd's Rep 532. The plaintiffs remedy, if the licence is found to be invalid can be adequately addressed in damages at the trial of the main action.

In this case Mr. Hong deposed in evidence the basis of the second defendant's claim, the circumstances in which it arose and the invoice issued on the demand for payment. They clearly show that the amount owing is a normal debt arising in the course of business and there is certainly no evidence to show that the first defendant intends to evade the underlying purpose of the injunction through the use of the proceeds of the sale now held by the Court to settle its genuine debts. In those circumstances the first defendant must be allowed to meet its debts which are incurred in connection with the sale of the logs out of the proceeds of the sale.

It has been argued on behalf of the plaintiffs that if the defendants were allowed to claim payments under Agreement, the plaintiffs will be deprived of monies which may be due to them should they succeed in their action. This is the same as saying that because the proceeds of the sale of the logs are affected by the injunction, these proceeds must wait for the outcome of the plaintiffs' action and that should they (plaintiffs) succeed they should take precedence over those proceeds. Unfortunately for the plaintiffs as I have earlier pointed out, such an argument cannot stand as against a genuine creditor, let alone, a judgement creditor, who has more right to the defendant's asset than those standing behind a mere restraining order.

If I may add that the proceeds of the sale of the logs were ordered to be paid into court as one of the consequences of the restraining order placed upon the defendants. However there has not been any restraining order upon the proceeds of the sale themselves, although it may be argued that the restraining order affects those proceeds, an argument which I would prefer.

In any event, the plaintiffs' claim in this case, among others things, is for damages for trespass and conversion and there is no evidence before the Court to suggest that the first and second defendants do not have the financial capacity to pay such damages should the plaintiffs succeed. Further, there is still in place a restraining order against the defendants from further felling of trees in the areas of land concerned until trial or further order. So there should be no need for fear by the plaintiffs of further damage to the trees and land beyond the financial capability of the defendants to compensate for.

The argument by the plaintiffs on the assessment of damages will certainly be relevant in the trial of the main action and should they (plaintiffs) succeed the Court may well be asked to consider that, in the circumstances, exemplary damages ought to be granted in addition to the normal damages awarded in tort: See Rookes -v- Barnard [1964] UKHL 1; [1964] AC 1129; [1964] 1 All ER 367 HL.

The subject matter with which we are concerned in this application however, is the proceeds of the sale of the logs out of which the first defendant seeks $295,351.29 to meet its debts ordinarily incurred in the course of its business. That amount has not been shown to be unreasonable and in my judgement it is part of the expenses incurred in connection with the ordinary operations of the defendants, one of which is the export of logs. The defendants have satisfied the Court on the evidence before the Court that the amount represents the first defendant's genuine debt owed to the second defendant and should properly be paid out of the proceeds of the sale and I so order.

Before I leave this matter I feel I should briefly add a word or two on this form of remedy which equity has provided. Interlocutory injunction is an equitable remedy granted at the discretion of the Court. As a matter of practice it is usually granted upon two clear days' notice to the defendant: See Ord. 53 r 7 as read with Ord. 55 r5, High Court (Civil Procedure) Rules, 1964: See also Colebourne -v- Colebourne (1876) 1 Ch D.690. It is the ex parte or Interim Injunction which is often issued without notice to the other side by the Court

"if satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief: (Ord. 55 r 3).

That interim or ex parte order will operate only until the time fixed for the inter partes hearing during which the Court may then decide to extend the ex parte or interim injunction or grant an interlocutory injunction restraining the defendant "until trial or further order": See Thorneloe -v- Skoines (1873) L. R. [1873] UKLawRpEq 112; 16 Eq. 126. Of course the Court may grant interlocutory injunction on an ex parte application where a case of sufficient cogency is made. London City Agency (JCD) lTD -v- Lee [1870] 2 WLR 136. But it is worth noting what Megarry J, said at page 138 in that case:

"The court will grant an interlocutory injunction on an ex parte application if a case of sufficient cogency is made, and no reason has been suggested why, if an application ex parte to discharge or vary such an injunction is supported by sufficiently cogent grounds, the court should not do what is sought. If time permits, it is plainly preferable that any such application should be made upon due notice; but in a case of sufficient urgency, I do not see why an injunction granted ex parte should be immune from being varied or discharged upon an ex parte application."

The practice of granting ex parte interlocutory injunction against defendants until trial or further order has grown up in the courts here in Solomon Islands even in cases where there were no sufficient urgency for such an order. Prudence must be exercised by the courts before granting interlocutory injunctions on ex parte applications because, as it has been said in Thomas A. Edison Ltd -v- Bullock [1912] HCA 72; (1912) 15 CLR 679 at page 681:

"There is a primary precept governing the administration of justice, that no man is to be condemned unheard, and therefore, as a general rule, no order should be made to the prejudice of a party unless he has the opportunity of being heard in defence."

It must also be noted that the practice has grown up that in almost every case where an interlocutory injunction is to be granted, the plaintiff is required to give an undertaking to pay damages. Originally the undertaking as to damages only apply in ex parte orders for injunctions but it has now been extended to all cases of interlocutory injunctions. The reasons for that is explained in Smith -v- Day (1882) 21 Ch D 421 at 424 in the following words:

"By degrees the practice was extended to all cases of interlocutory injunction. The reason for this extension was, that though when the application was disposed of upon notice, there was not the same opportunity for concealment or misrepresentation, still, owing to the shortness of the time allowed, it was often difficult for the defendant to get up his case properly, and as the evidence was taken by affidavit, and generally without cross-examination, it was impossible to be certain on which side the truth lay."

There are, however, exceptional cases where the undertaking as to damages may be dispensed with: See AG -v- Albany Hotel Co. [1896] UKLawRpCh 148; [1896] 2 Ch. 696. Also in cases where a plaintiff is legally aided (in Solomon Islands, this is provided by the Public Solicitor's Office) or has limited means, the Court may in its discretion dispense with the requirement of the undertaking as to damages: See Hitukera -v- Hyundai Timber Company Limited and Maepeza (1992) Civil Case No. 132 of 1992 (H.C) where this court said:

"The plaintiff is legally aided by the Public Solicitor and part of his means of obtaining money had already been destroyed by the first defendant. I therefore dispense with the need for him to give the usual undertaking as to damages"

The question of the proper practice in applications for injunctions, ex parte, interim or interlocutory, is not in issue in this present case. But as this case concerns a restraining order against the defendants "until trial or further order" (interlocutory injunction) granted ex parte, I feel it is also appropriate that the court should deal with this aspect of this equitable remedy, even if it is only for future practical guidance.

Returning to the matters in issue in the present case I feel I have adequately dealt with those matters. It only remains for me now to make the order which I feel, in the circumstances, reasonable to make and that I do so now.

I order that the sums of $295,351.29 being for payment for services rendered pursuant to clause 21 of the Technology & Management Services Agreement and $69,125.68 being for debts and expenses as specified in paragraphs 8 & 9 respectively in Lionel Hong's affidavit be made to the first defendant out of the proceeds of the sale of the logs.

There is no prayer for costs in the summons and as such there will be no order for costs.

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ter">GJB Muria
CHIEF JUSTICE