Chachavaka v Silvania Products (SI) Ltd [1996] SBHC 66; HC-CC 128 of 1996 (13 November 1996)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No.128 of 1996

BENJILI CHACHAVAKA

align="center" ter" str" style="margin-top: 1; margin-bottom: 1"> v

SILVANIA PRODUCTS (SI) LTD AND
WESLEY AVAKA

Before: Awich, J

Hearing: 7 November 1996Judgment: 13 November 1996

<

Counsel: C Ashley for the plaintiff;

A Nori for the defendant

INTERLOCUTORY JUDGMENT

AWICH, J:

On 3/5/96 the plaintiff Benjili Chachavaka sued his brother Wesley Cley Chachavaka for the proceeds of royalty accruing from harvesting logs for timber, on land belonging to the family. He joined as defendant, Silvania Products (SI) Limited, the company that was harvesting logs and paying royalty. He sought account of the royalty and injunction restraining further payment to the defendant.

On the same day the plaintiff filed summons application which sought order that proceeds of royalty so far paid be transferred to plaintiff's solicitor to keep in trust pending the outcome of the case. He also sought account. Interlocutory order was made on 30.5.96. The family then met and application was again made to court. As the result the order of 30.5.96 was varied by order of this court made on 27.6.96. The defendant was to transfer the sum of $77,000 to trust account of the plaintiffs solicitor. The money was to be held until determination of the case. Defendant was also to file documents relating to the purchase of two houses, and to retain proceeds of a certain petrol supply business, in the business until determination of the case.

The plaintiff has now applied to Court yet again for interlocutory order. The application seeks in paragraph I order that defendant pay $70,000 to trust account of solicitor. He says that would be in accordance with what the family, excluding the defendant, agreed in a meeting held at Vura on 7/7/96. He seeks court sanction of that agreement. I see no need whatsoever in making that order as an interlocutory one. Firstly the order of 27/6/96 directed payment of $77,000 into trust account of plaintiffs solicitor. That has not been done. The action to take to enforce that is not to apply for a repeat of similar payment. Secondly, it is not being alleged in this application that the $70,000 is in imminent danger of being squandered. In fact it is not clear whether there is such cash now somewhere so that interlocutory court order would protect it. The plaintiff simply wants to move it closer to him, if it is available because, by reason of the meeting of his family held on 7/7/96 he feels closer to succeeding in his claim. That really is promoting the decision in the substantive case; it is not aimed at preservation of subject matter. That order is refused.

The order sought in paragraph 2 asks the court to order the, "defendant to show cause why he has not filed in court," the documents of purchase of the two houses referred to in the order made on 27/6/96. That would be of no use. If a party wants to compel compliance with an earlier order there are several well-known applications to make. Some of them require personal service. One may ask the question, of what interlocutory use is this order? If that order is granted now a date will have to be given for defendant to attend court to show cause. In the meantime the progress of the substantive case must remain waiting. The order is refused.

The orders sought in paragraphs 3 and 4 are also of no use at interlocutory stage. In paragraph 3 the plaintiff asks that defendant renders account for the petrol supply business. In paragraph 4 he asks that defendant render account for royalty already received. These are the subjects of the substantive claim. Court order now does not advance the case much. They seem to me to be the subjects of pleadings other than of interlocutory orders, unless pleadings in normal way fails and compulsion is the only alternative left. The orders sought in paragraphs 3 and 4 are also refused.

The position remains that the interlocutory order of this court made on 27/6/96 is still in force. It is open to the plaintiff to seek compulsion on them. It must however, be remembered that pleadings seem to have closed now. The case may well advance faster by parties agreeing on usual directions as to discovery, inspection and applying for hearing date for trial of the substantive case. This has been the third time the court has to deal with interlocutory application. The more time is spent on interlocutory application, the longer the substantive case will remain pending. It is suggested that parties now agree to order of direction, file it in court and proceed to act on the order, leading to application to the Registrar for a trial date.

The defendant has not replied to the allegation that he has not complied with the order made on 27/6/96. Because of that, the court, denies him costs of this application although the application has been dismissed. The result is that the plaintiff's application dated 30.8.96 filed on 9.9.96 is dismissed, but no order as to costs is made.

Dated 13th 13th day of November 1996

At the High Court, Honiara

Sam Lungole-Awich
Judge
High Court