Sau v Lauma [2001] SBHC 109; HC-CC 040 of 2001 (30 April 2001)

HIGH COURT OF SOLOMON ISLANDS

CIVIL CASE NUMBER 40 OF 2001

JANE SAU AND STEPHEN SANGA

-V-

FELIX LAUMAE AND DAIDO (SOLOMON ISLANDS) LIMITED

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)

HEARING: 27TH APRIL 2001
RULING: 30TH APRIL 2001

Sol-Law for the Applicant
G. Suri for the Respondent / Plaintiff
Second Defendant represented by A. Loboi
First Defendant - not present.

PALMER J.: This is an application by Oceania Trading Company, a firm (“the Applicant”) for inter alia, joinder as the Third Defendant and for orders that the sum of USD50,184.81 acknowledged to be due and owing by the Second Defendant (“Daido”) to the Applicant to be paid into Court to abide final judgment in this action.

The Applicant relies on the affidavit of Eddie Ting (“Ting”) filed 20th April 2001. Ting deposes at paragraph 12, that said amount was acknowledged by both Andrew Loboi (a Director and Shareholder of Daido) and Felix Laumae, (First Defendant) as due and owing, to the Applicant (see paragraph 3(a) of affidavit of Andrew Loboi filed 28th March 2001 and paragraph 5(a) of affidavit of Felix Laumae filed also on same date). On that basis, the Applicant submits it has a valid claim against Daido and ought to be joined as third party in the proceedings.

Counsel for Plaintiffs in this action did not oppose application for joinder but submitted that Pan Pacific Parts Limited (“Pan Parts Ltd”) be also joined on basis that Daido does have claims against Pan Parts Ltd and cross-claims against the Applicant. Daido had no legal representation though Mr Loboi, one of the Managing Directors and initiators of this action attended. It was obvious he was relying on Counsel Suri to make representations on behalf of Daido at the hearing though this was not picked up until writing of this judgment. There is possible conflict of interest. Having said that, I have nevertheless taken time to consider in detail the cause of action of the Plaintiffs in this action against Daido and come to conclusion that Plaintiffs action is not so much against Daido as against inter alia, the actions of Patson and Rose Fulaburi. The appropriate party to be joined as second defendants therefore it seems ought to have been Patson and Rose Fulaburi instead of Daido. Daido in turn it seems ought to have been included as one of the plaintiffs. This then would make sense for the Applicant to be joined as a defendant in this action and for Pan Parts to be included as well. The Applicant does not so much have claim against the Plaintiff as against Daido. I am satisfied Daido does have cross-claims against Pan Parts and that this warrants the inclusion of Pan Parts as fourth defendant. Accordingly I would direct that Daido be joined as Second Plaintiff, Patson and Rose Fulaburi to be substituted as Second Defendants, the Applicant joined as third defendant and Pan Parts as fourth defendant.

The second order sought is for the sum of USD50,184-84 to be paid into Court to abide final judgment in this action. I am satisfied there is prima facie case of liability in respect of this sum of which the defence claimed is the right to be relieved wholly or partially from such liability. Order 53 Rule 1 of the High Court (Civil Procedure) Rules, 1964 give discretion to this Court to order that the amount in dispute be brought to Court or otherwise secured. I have considered the submissions of Counsels in this matter and respective affidavits filed. It is clear monies held in the account of Daido at National Bank of Solomon Islands Limited is not more than SBD1,782-28. To require payment of USD50,184-84 would be fruitless, like requiring blood from a stone. The more appropriate orders in my respectful view would be to impose restraining orders on all funds and assets of Daido and to require that they can only be dealt with by consent of the Applicant or by order of Court.

ORDERS OF THE COURT:

1. Daido (Solomon Islands) Limited to be joined as Second Plaintiff.
   
2. Patson and Rose Fulaburi to be substituted as Second Defendants.
   
3. Ocean Trading Company to be joined as Third Defendant.
   
4. Pan Pacific Parts Limited to be joined as Fourth Defendant.
   
5. Amended Writ and Statement of Claim to be filed and served within 14 days.
   
6. Restrain all funds and assets of Daido (Solomon Islands) Limited to the sum of USD50,184-81 and to be dealt with only by consent of Ocean Trading Company or order of Court.
   
7. Liberty to apply on two days notice.
   
8. Costs in the cause.
   

THE COURT.