Cal Timber Company Ltd v Santa Cruz Timber Ltd [1999] SBHC 36; HC-CC 080 of 1999 (14 April 1999)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 080 of 1999

CAL TIMBER COMPANY LIMITED

& WALTER JONES

v<

SANTA CRUZ TIMBER LIMITED,

LOUIS BARBOU AND LUTE BARBOU

High Court of Solomon Islands

Before: PALMER J.

Civil Case No. 080 of 1999

Hearing: 13^th April, 1999 Ruling: 14^th April, 1999

lass="MsoNoMsoNormal" align="left" style="margin-top: 1; margin-bottom: 1"> Counsel: A. Radclyffe for the Applicant/Plaintiff

C. Ashley for the Respondent/Defendant

class="MsoNoMsoNormal" align="left" style="margin-top: 1; margin-bottom: 1"> PALMER J.

“1. that the proceeds of sale of the milled timber exported under the name of the First Defendant in March 1999 and referred to in Bills of Lading Number HNNM-002, 003 and 004 be paid into Court forthwith.

class="MsoNormal"rmal" align="left" style="margin-top: 1; margin-bottom: 1"> t’s ANZ Banking Group account number 4035020 that the said account be frozen until further order.

3. that the Defendants their servants or agents be restrrestrained from using the First Plaintiffs machinery and equipment until further order and that any of the First Plaintiffs machinery or equipment in the possession or control of the Defendants be returned to the First Plaintiffs yard at Ranadi forthwith.

4. that the Defendants their servants onts or agents be restrained from disposing of any round logs or milled timber in their possession or control until further order.

5. such further or other order as the Court thinks fit.”

The plaintiffs rely on two affidavits of Walter Jones filed 5^th March 1999 and 15^th March 1999. The parties are shareholders in the first plaintiff company (Cal Timber Company Limited); Walter Jones holding 50% shares and Louis and Lute Barbou each holding 25% shares. The first plaintiff engages in the business of logging.

r Jones deposes in his affidavit filed on 5^th March 1999, that the defendafendants had converted to their use round logs which were the subject of an agreement between the first plaintiff and Bahomea Logging Ltd and E. Kamaho and Others, of about of 2580 m³ and had milled and exported the same under the name of the first defendant (see annexure marked “A”).

class="MsoNoMsoNormal" align="left" style="margin-top: 1; margin-bottom: 1"> Lute Barbou in her affidavit filed on 9^th March 1999 states at paragraph 3 in response to the allegations of the second plaintiff that logs felled were mainly exported to overseas market. No account or details of shipment however has been made and no indication as to what happened to the proceeds. In my respectful view a more proper order would be to require an account to be given as to what happened to those logs, their shipment and the proceeds. It is the proceeds of those logs that should be restrained.

On the subject of restrainin the proceeds of sale of the milled timber exported underunder the name of the first defendant in March 1999, Lute Barbou deposes in paragraph 6 of her affidavit as to how the Bills of Lading Numbers HNNM-002, 003 and 004 had been accounted for. She deposes these were made by shipment of sawn timber purchased independently from other persons and were not the logs the subject of the agreement between the first plaintiff and Bahomea Logging Ltd.

On the strength o affidavit evidence, but also on the fact that the Commissioner of Inland RevenRevenue had placed a restriction on the proceeds in account number 4035020 at the ANZ Banking Group Limited, it is my respectful view it would not be proper for this court to further impose any restraining orders on that account (see affidavit of Lute Barbou filed 13^th April 1999 at paragraph 9 and annexures marked “LB11, LB12, and B13”).

On the question of the proper amount of tax to be paid as between the first plaintiff anff and the first defendant, those are matters which those parties can take up separately with the Commissioner of Inland Revenue.

As to the order sought in paragrapf the amended summons, it is clear the machines listed in t in the affidavit of Walter Jones filed on 15^th March 1999 belong to the first plaintiff and must be restrained forthwith in view of the dispute that has arisen between the shareholders and the amount of debt alleged by Walter Jones the first plaintiff currently owes. Any suggestions that the machines be leased out to others to recover any debts owed to the first plaintiff can be sorted out later between the parties by consent, if not, by sanction of this court.

Also it is only proper that an order be made against econd and third defendants to account for the use of of those machines to date.

ORDERS OF THE COURT:

1. Refuse paragraphs 1 and 2 of the orders sought in the amended summons filed 15^th March 1999.

p class="MsoNormal"rmal" align="left" style="margin-top: 1; margin-bottom: 1">

3. Grant order sought in paragraph 3 of the amended summons, that the Defendants their servants or agents be restrained from using the First Plaintiffs machinery and equipment until further order and that any of the First Plaintiffs machinery or equipment in the possession or control of the Defendants be returned to the First Plaintiffs yard at Ranadi forthwith.

4. Order that the Defendants file within 14 days a statement of account for the use of the First Plaintiffs machineries and equipment to date of this order.

5. Refuse order sought in paragraph 4 of the amended summons.

6. Costs in the cause.

THE COURT