In re Meiners [1998] SBHC 86; HCSI-CC 162 of 1995 (22 May 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 162 of 1995

IN THE MATTER OF THE BANKRUPTCY NOTICE ISSUED FOR JUDGMENT ORDER AGAINST WOLFGANG MEINERS

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No. 162 of 1995

Hearing: 8th May1998
Ruling: 22nd May 1998

S. Patrick for the Applicant
W. Meiners of Respondent in Person

RULING

MURIA CJ: This is an application by the Respondent Wolfgang Meiners, seeking a stay of further proceedings in this action on the ground that it is premature and vexatious. The respondent represented himself and he relied on his own affidavit filed in support of his application.

In his written submission, the respondent said that the Creditor’s Petition for a Receiving Order was founded on false premise in that he did not commit an act of bankruptcy as stated in the Petition. That act of bankruptcy was said to be the failure by the respondent to comply with the Notice of Bankruptcy served on him on 2nd November 1995. There is no dispute that the Bankruptcy Notice dated 26th October 1995 was served on the respondent on 2nd November 1995. By that Notice, the respondent was required within 7 days to do what was required of him under the Notice. Failure to do so would amount to an act of bankruptcy entitling the Petitioners to issue bankruptcy proceedings against the respondent. The seven days expired on 9th November 1995.

In his submission the respondent said that he filed an affidavit in response to the Bankruptcy Notice on 9th November 1995 and exhibited to his affidavit filed on 5th May 1998 in support of this application is a copy mark “WM/1” of that affidavit. The respondent further said that the Registrar of High Court failed to respond to his affidavit.

This argument can be disposed of briefly. Firstly, the respondent seems to have the idea that when he filed court documents, such as affidavits, the Registrar of High Court should reply to him. The problem of the respondent is that he represents himself and obviously does not know the rules of practice of the court. But he must come to realise that the Registrar does not reply to affidavits filed in court in a case. Affidavits (if they are filed) are meant to be for the use by the court and that when they are served on the other party, that other party is the person who may respond to the affidavit by filing an affidavit in reply or he may choose to respond to the affidavit orally at the hearing. It is not for the Registrar to reply to affidavits. He is not a party to the case. It is therefore an argument without merit to say that a party can be relieved of his obligation under the rules due to the Registrar’s failure to reply to affidavits.

Secondly, and more importantly in this case, there is no evidence that the affidavit sworn on 9th November 1995 had ever been filed in court. The exhibited copy “WM/1” is not a filed copy nor is there any trace of a copy of it in the court file. The only conclusion therefore is that, “WM/1” was not filed in court in response to the Bankruptcy Notice.

The failure, therefore, to respond to the Bankruptcy Notice within the time prescribed was therefore an act of bankruptcy entitling the Petitioners to issue Bankruptcy proceedings, which they did. In “Ground 2”, of his submission the respondent stated that the debt claimed by the Petitioners to be owing was disputed because both the Registrar and Petitioners had failed to account for payments already made to the petitioners from funds held in Court on behalf of himself and his company. The funds to be accounted for was said to be in respect of CC164/94. In that respect the respondent said that he filed a Notice to Stay Proceedings on 27 March 1996. It will be noted that CC164/94 is a case between Reef Pacific Trading Limited and Joann Marie Meiners, as plaintiffs and Price Waterhouse, Richard Anthony Barber and William Douglas McCluskey as defendants. Mr. Meiners was not a party to that case although he may regard himself as a party to that case because of his directorship in the Reef Pacific Trading Limited. The costs awarded to the Petitioners and claimed in these proceedings arose out of an unsuccessful prosecution of the Petitioners following a private complaint by the respondent pursuant to section 76(2), Criminal Procedure Code. I do not think the argument based on the CC164/94 can have any effect on the outcome of this case. In any case the same contention now advanced by the respondent had already been dealt with by this court on 18th April 1996. In fact all of the “grounds” raised in the respondent’s submission had been put to the court on 18th April 1996 and dealt with on an application by the respondent for stay of this action at the time.

The court, on 18 April 1996, ordered in the respondent’s favour that the Bankruptcy proceedings to be stayed for 21 days on the following conditions:

(a) The Judgment debtor files with Court within 4 days, Resolution of Reef Pacific Trading Ltd authorising payment out of court of any sum(s) found due to the Co, to Solicitors of the Petitioning Creditors towards satisfaction of the debt the subject matter of this case.

(b) In the event of the money in Court, paid to Solicitors of the judgment creditors leaving a shortfall in the satisfaction of the debt founding these proceedings, the debtor must pay the shortfall within the 21 days granted for stay.

The respondent is now basically raising the same argument again. That clearly is an abuse of process and this court cannot permit such course of action to cloud the proper disposition of issues or matters coming before it. Such a course of action, not only prolongs the case, but also distorts the proper conduct of the case.

The application is refused with costs.

(GJB Muria)
CHIEF JUSTICE