CP Homes Ltd v Robert [1997] SBHC 112; HCSI-CC 135 of 1996 (21 November 1997)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 135 of 1996

CP HOMES LIMITED

-v-

BEXTER ROBERT, JAMES PULEIPU AND OTHERS

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No. 135 of 1996

Hearing: 20 November 1997
Judgment: 21 November 1997

A. Radclyffe for Plaintiff
A. Nori for Defendants

MURIA CJ: This is an application by Silvania Products (SI) Limited to vary the order of this Court dated 22 July 1997 so as to allow Silvania to deduct from the proceeds of recent log shipments its contracted operational, management and log pond maintenance fees. The applicant is not a party to the main proceedings in this case although it was served with a copy of the order of 22 July 1997. The paying banker was also served with a copy of the said order.

At the hearing on 21 July 1997 Mr. Radclyffe appeared for the plaintiff and Mr. Tegavota appeared for the first and second defendants. By consent the order was made on 21 July 1997 and signed on 22 July 1997 ordering the first defendant’s consignment of logs be sold and the proceeds of the sale in the sum of SBD500,000.00 be paid in the Interest Bearing Account in the joint names of the solicitors for the parties. A copy of the order, as I have said, was served on Silvania Products (SI) Limited and the paying bankers concerned. The clear intention for serving the applicant and the bankers was that they should be bound by that order as well although they were not parties to the action.

It may be that the applicant has been affected by the order of the Court but it would be wrong to allow the applicant to intervene in the order of the Court which is directed only at the first defendants consignment of logs in this case although the Court has power to give applicant leave to defend the plaintiff’s action in its contractual capacity with the first defendant. Had that been done, no doubt the court would have considered it and would have granted the applicant leave to do so. That had not been done.

There is also the suggestion that the applicant’s consent had not been sought in this case before the order was made. The implication is that the consent given was not properly done so. If this were so, then the impropriety of the consent must be shown. That has not been done. I think it is also important to note here that the order was made on 21 July 1997 and signed 22 July 1997. There was no suggestion that the applicant had not been served with the order shortly thereafter. The Summons was filed on 15 September 1997, two months later. This delay does not tell in favour of the applicant.

It will also be observed that the order is:

“That the First Defendant’s consignment of logs awaiting shipment be sold and of the proceeds of the sale, the sum of SBD500, 000 shall be paid into an Interest Bearing Accountant in the joint names of the parties solicitors within seven days of shipment.”

The order is specifically directed to the first defendant’s consignment of logs awaiting shipment to be sold and the sum of $500,000 to be paid into the Interest Bearing Account in the joint names of Solicitors. It is not directed at all other shipments of logs the proceeds of which when sold would be used as directed by the terms of the Technology Management & Marketing Agreement entered into between the First Defendant and the applicant. In those circumstances, as I have already said, it would not be right for the Court to vary the order of 22 July 1997 at the instance of the applicant.

The application is refused with costs to the plaintiff to be paid by the applicants.

(GJB Muria)
CHIEF JUSTICE