Wong v Yam [1999] SBHC 149; HCSI-CC 260 of 1999 (5 November 1999)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 260 of 1999

MARIA WONG

–v-

AUSTIN YAM & COMMISSIONER OF LANDS

High Court of Solomon Islands
(MURIA, CJ)
Civil Case No. 260 of 1999

Hearing: 4th November, 1999
Judgment: 5th November, 1999

A. Nori for the Plaintiff
C. Ashley for the 1st Defendant
S. Manetoali for the 2nd Defendant

JUDGMENT

MURIA CJ: By her application, the plaintiff seeks against the first and second defendants the following orders:-

1. the Defence filed by the First Defendant be struck out in that it fails to disclose any reasonable defence;

2. judgment in default of defence be entered against the Second Defendant;

3. in alternative to 2 herein, judgment be entered against the Second Defendant in that he has no defence to this action;

4. costs to be paid by the Defendants.

In the course of his argument Mr. Nori conceded that as both defendants had filed defences, he was no longer relying on paragraph 2 in the Notice of Motion. With regard to the first defendant, Mr. Nori again conceded that there may be some room for argument regarding the defence raised. However with regard to the amount paid by the plaintiff and received by the first defendant, Mr. Nori submitted that there can be no defence to that. In particular Mr. Nori argued that the first defendant, while having no title to the land, sold it to the plaintiff who paid $110,000 for the land. That amount had been admitted by the first defendant of having received from the plaintiff.

Like the first defendant, the second defendant also admitted receiving the sum of $7,807.56 from the plaintiff for premium, registration and stamp duty. That amount was for the grant of the land to her. The undisputed fact was that the second defendant received the money and made the grant to the plaintiff but was never registered. Instead the second defendant made a subsequent grant of the same land to two other persons namely, Samson Posala and Babasy Koti who had the titles to the land registered in their names. The plaintiff’s money had not been refunded since. That was a clear breach of contract. That was also clear evidence of unjust enrichment since the second defendant no longer has any right to keep the Plaintiff’s money after giving the land to those two other persons.

Whilst I can accept that there may be some room for contest in so far as the claim against the first defendant is concerned, it would appear to me to be on very limited basis which I feel comes down to the question of the balance between the sum claimed ($145,000) and sum admitted ($110,000). There can be no room for argument on the question of not having title to the land and selling the said land to which he had no title. KK Real Estate had no title to the land in the first place and so it could not possibly pass on any title to the first defendant who in turn could not pass on any title to the plaintiff. Yet the first defendant sold the land to the plaintiff for a total value of $145,000. As the first defendant only admits receiving $110,000.00, the plaintiff is entitled to be reimbursed of that amount. The balance can be contested later. The Court will allow the first defendant to defend that part of the plaintiff’s claim only.

The second defendant on the other Land, does not in my judgment have any good defence at all to the plaintiff’s claim. It is crystal clear the second defendant had breached its contract with the plaintiff. Having received payment, from the plaintiff, subsequently gave the land to other people. He continued to keep the plaintiff’s money for no good reasons. As the second defendant does not have a good defence, the Court ought not permit him to defend the action. The Court will not allow him to do so in this case. The plaintiff must have her money back

The only other matter I need to say is in relation to the first defendant’s Summons. That Summons seeks to strike out the plaintiff’s Statement of Claim on the basis that it is vexations and frivolous and is an abuse of the Courts process. On the basis of what I have already said regarding the first defendant’s position in relation to the plaintiff’s claim, the first defendant’s Summons cannot be sustained. The plaintiff’s action cannot be said to be vexatious and frivolous or an abuse of Court’s process at all in this case.

There is power in the Court to give judgment for part of the claim and to allow the defendant to defend the balance of the plaintiff’s claim. The Court also has power to refuse to allow a defendant to defend an action where he has no good defence. See Order 14 rr 4 and 5 of the High Court (Civil Procedure) Rules.

In the circumstances, there must be Judgment for plaintiff against both defendants as follows:-

1. Against first defendant, there will be judgment for the plaintiff in the sum of $110,000-00 together with interest and costs;

2. Against second defendant, there will be final judgment for the plaintiff in the sum of $7,807.56 together with interest and costs;

3. As between the plaintiff and first defendant, the case is to be listed for hearing and the first defendant is allowed to defend the balance of $35,000.00 on the plaintiff’s claim.

Order accordingly.

(GJB Muria)
CHIEF JUSTICE