In re Ta'as Marketing Ltd [2000] SBHC 53; HC-CC 249 of 2000 (15 December 2000)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 249 of 2000

TA’AS MARKETING LIMITED

AND IN THE MATTER OF THE COMPANIES ACT (CAP. 175)

High Court of Solomon Islands
(F.O. KABUI), J)

Hearing: 13th December 2000
Judgment: 15th December 2000

J. Sullivan for the Petitioner
Mrs M. Samuel for the Debtor

JUDGMENT

(Kabui, J): This is a Petition filed on 1^st November 2000 by Solomons Rice Company Limited (“the Petitioner”) against Ta’as Marketing Limited (“the Company”) for the winding up of the Company. The Petition was heard by me at 9:30 am on Wednesday 13^th December, 2000. The Company did not oppose a winding order being made against it and any other order that could be made that was just. I made the order for winding up of the Company and other consequential orders accordingly at the conclusion of the hearing of the Petition on that date of hearing. I however said that I would give a written judgment in the case today at 2 pm. I do so now.

The Facts

The Company was incorporated under the Companies Act (Cap. 66) (as it then was) in November, 1998. Its registered office is P.O. Box 41, Auki, Malaita Province. Its nominal capital is $10,000 divided into 10,000 shares of $1.00 each. The paid up capital is $10,000. The majority shareholder is Rex Fera whilst Martha Maofalifaga is holding the minority shares. Its objects include the business of retail and wholesale, beach trading etc as set out in its Memorandum of Association.

On an unknown date between 9^th November 1999 and 12^th January 2000, the Company paid for rice product from the Petitioner to the value of $3,707,335.80. This was the balance payable to the Petitioner as of 24^th February 2000. On or about 4^th February 2000, the Company paid by cheque number 501318 the sum of $867,308.40 drawn upon the Company’s account number 123842601015 at the National Bank of Solomon Islands, Honiara Branch. This was part payment of the sum of $3,707,335.80 owing by the Company to the Petitioner. When the cheque was presented for payment on 11^th November 2000, it was dishonoured by the Company’s banker on or about the following day. As of 24^th February 2000, the sum of $867,308.40 was still owing to the Petitioner from the Company.

On 12^th May 2000, the Petitioner filed in the High Court of Solomon Islands a civil suit to recover from the Company the sum of $3,707,335.80 plus interest thereon at 5% per annum from 9^th November 1999 until payment and costs. The Company having failed to appear in Court against the Petitioner, the Petitioner applied for judgment in default of appearance and the Court granted the Petitioner’s application for default judgment. The effect of this was that the Petitioner was adjudged to recover from the Company the sum of $3,707,335.80 plus interest at 5% as from 9^th November 1999 and $180.00 fixed costs.

On 9^th October 2000, the Petitioner served a statutory demand upon the Company demanding payment of the whole of its debt. The Company failed to answer that demand in whole or at all. The total debt as of 1^st November 2000 stood at $3,888,830.86 comprising –

Judgment debt $3,707,335.80

Fixed costs $ 180.00

Interest $ 181,315.06

Decision

Clearly, the Petitioner was entitled to file a Petition under section 210 of the Companies Act (Cap. 66) (as it then was). The relevant part of section 210 states

“A company may be wound up by the court if -

(a) ......

(b) ......

(c) ......

(d) ......

(e) the company is unable to pay its debts;

(f) ......"

Its inability to pay its debts was admitted by the Company in no uncertain terms. The fact that the statutory demand under section 211 (a) of the Companies Act was not met by the Company was again not disputed by it. The Company’s debt was still outstanding on the date of the hearing of the Petition. On this basis, it was only logical that I made the order to wind up the Company and other orders on the date of the hearing of the Petition. For the sake of completeness, I reproduce in this Judgment the Orders I made on the date of hearing of the Petition. That is to say, I ordered that –

1. TA’AS MARKETING LIMITED (“the Company”) be wound up by this Court under the provisions of the Companies Act (Cap. 175) (“the Act”);
   
2. Robert Goh and Mark Conrad Anders be jointly and severally constituted liquidators of the Company (the Liquidators”);
   
3. The Liquidators shall not be required to give security;
   
4. The Liquidators shall have in relation to the winding-up of the Company all the powers, rights, and obligations of the Official Receiver and the same may be performed or done by any one of them;
   
5. All contributories, trustees, receivers, bankers, agents, or officers of Company shall forthwith pay, deliver, convey, surrender, or transfer to the Liquidators all and any money, property, books and papers in their hands to which the Company is prima facie entitled;
   
6. The Company’s managing director, Mr. Rex Fera, shall, within 24 hours of the service on him of this order provide to the Liquidators an address (other than a post office box) within the Central Business District of Honiara for service of notices in relation to the affairs of the Company, details of a postal address in Honiara to which the same may be posted, and particulars of all his telephone contact numbers in Solomon Islands;
   
7. The Company’s managing director, Mr. Rex Fera, shall give the Liquidators seven days prior written notice of any change in the particulars provided by him pursuant to order 5 hereof.
   
8. The costs of the Petitioner of and in connection with the Petition (including the costs of the Statutory Demand) shall be paid taxed if not agreed by the Liquidators and shall be paid in priority out of the assets of the Company.
   

F.O. Kabui
Judge