Baunani Land Purchase Co-operative Society Ltd v Waibona Sawmilling and Logging Company Ltd [1996] SBHC 53; HC-CC 293 of 1995 (3 October 1996)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 293 of 1995

BAUNANI LAND PURCHASE CO-OPERATIVE SOCIETY LIMITED

v

p align="centerenter" ter" style="margin-top: 1; margin-bottom: 1">WAIBONA SAWMILLING AND LOGGING COMPANY LIMITED AND OTHERS

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Before: Palmer, J

Hearing: 2nd October 1996

Ruling: 3rd October 1996

Counsel: J. Sullivan for the Applicant/First Defendant -

A. Nori for for the Respondent/Plaintiff

PALMER J:

The Applicant/First Defendant seeks by summons filed on the 3rd September, 1996, orders inter alia, to have the Order of the High Court dated 2nd October, 1995 varied. This was despite the fact that paragraph 3 of that Order had been breached by the First Defendant. This has been conceded by the First Defendant, but pleads mistaken belief based on documents which it claims to have received from the Chairman and other executive members of the Plaintiff (See affidavit of Vincent Sangatu filed on 3rd September, 1996 paragraphs 5-6, and annexures "VS3" and "VS4"). The First Defendant also concedes through its Counsel, Mr. Sullivan, that it should have applied for a variation of that same Order before taking any further action, and has apologised.

The variation sought relates to payments that had been made by the First Defendant contrary to the Order of the Court dated 2nd October 1995; payments which may be described as falling within the usual deductible category of "reasonable expenses" [see paragraph (8)(d) to (k)]. Items described in paragraph 8(e) to (j), I accept normally fall within the category of "reasonable expenses" and deductible. My only concern here is that apart from the sworn affidavit of the deponent, there is no documentary evidence to support these figures. I will direct therefore that all relevant documentation relating to those expenses should be produced and copies made available to Counsel for the Plaintiff for his perusal. My concern here is that if the figures deposed to are accepted without more, then it could set a precedent which may be open to abuse. Where agreement is reached, a consent order should be filed varying the Court Order of the 2nd October, 1995 along those lines. Where no agreement is reached as to the figures provided, then the First Defendant is at liberty to apply to the Court for determination of the dispute.

The item described in paragraph 8(k) is not deductible as a 'reasonable expense' and should be paid into a joint trust account in Counsels names. This includes the amount of $76,271.26 referred to in paragraph 9 of the affidavit of Vincent Sangatu filed on 3rd September, 1996.

I note that the reason why the injunction appears to have been imposed was to secure as far as is possible the damages claim of the Plaintiff against the Defendants in the event that it should win its case for trespass and conversion. The question of quantum may be more or less than the current amount attached. This question however is not in issue in this application, neither the question as to the capacity to pay, of the First Defendant. If the Plaintiff should seek further security then that should be done by way of a separate application. For purposes of this hearing, I am satisfied the following orders should be made

ORDERS OF THE COURT

1) The figures in paragraph 8(e) to (j) in the affidavit of Vincent Sangatu filed on 3rd September, 1996, to be supported by relevant documentation and submitted to the Plaintiff for approval; failing which, the First Defendant is at liberty to apply to the court for determination of such dispute.

2) Where approval is obtained, the First Defendant shall file a consent order varying the Order of the Court dated 2nd October, 1995, along the same lines.

3) The amounts of SBD39,903.25 and SBD76,271.26 are to be paid into an interest bearing deposit joint account in the names of Counsels for the Plaintiff and the First Defendant.

4) The First Defendant to bear the costs of this application.

ALBERT R. PALMER,
JUDGE