1.
& &nsp; The time for hearing totionotion be abridged;
2. & p; &nsp; Usp; Upon the Plaintifing ving given the usual undertaking as to
damages,
3.
&nbssp;&nnbsp;&nsp; Asp; A penal notice h to a to any injunction granted herein;
4.
&nnbsp; The costs of and in conneconnection with this application be
reserved;
5.
Such fu therthr oordr order as to this Honourable Court may
seem
meet
In
addition, Counsel for laintiff sought from the bar table a further
order ther that the Defendant should account for
all the coconut oil held by it,
all coconut oil produced by it and all coconut oil sold, transferred or
otherwise disposed
of by it between 15th November, 2000 up to the
date of the Order. I made the Orders asked for on Friday 9th
March, 2001 and said I would give my written ruling today. I do so now.
The
Notice of Motion had been duly served upon the Defendant on the Defendant on
8th March, 2001. The service was effected at the registered
office of the Defendant at Goh & Partners at 11:30 am on the above
date by
Mr. Dofe, the Office Clerk in the employ of Sol-Law in Honiara. The
Defendant failed to appear in Court at the
hearing of the Notice of Motion.
This was confirmed by non-appearance in the Court after being called out
three times
by Bobby Feratelia of the High Court Registry who was then my
Associate.
lass="Mso="MsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
The
Facts
The
Plaintiff is a Company incorpo in Singapore carrying on b on business as
commodity traders in oil, copra cake and
cocoa in the Western Pacific. In
about August or October 2000, the Defendant through its servants or agents,
namely,
Messrs IIala and Notere, obtained from the servant or agent of the
Plaintiff, namely, Mr., Ming, the sum of US$600,000 at various
times. By
Agreement dated 3rd November, 2000, the Defendant agreed to
supply the Plaintiff with 2,600 metric tones of the then existing Solomon
Island
crude coconut oil. The agreed price for that coconut oil was
US$235.00 per metric tonne. By letter dated 22nd November 2000,
Messrs IIala and Notere confirmed that 2,600 metric tones of coconut oil
stock in tanks at Yandina as
at 15th November 2000 belonged to
the Plaintiff. In early December, 2000, 1829.92 metric tones of oil were
sent to the Plaintiff
in Singapore thus leaving 770.08 metric tones in the
tanks at Yandina. At the end of December, 2000, at least 433 metric tones
of
coconut oil were removed from the tanks at Yandina without the consent and
knowledge of the Plaintiff. There is at
present only 130 metric tones of oil
left in the tanks at Yandina. 207.08 metric tones of oil are therefore not
accounted
for by the Defendant. There is also in existence a Memorandum of
Understanding between the Defendant and International Countrade
and Shipping
Limited of Vanuatu (ICSL) dated 2nd February, 2001 under which
the Defendant is obliged to sell its oil. ICSL has exclusive rights to buy
oil from the Defendant
at an appropriate market pricing formula.
The
Plaintiff’s Notice of Motion
The
Plaintiff’s application was a measure taken to save the remaining 130 metric
tones of coconut oil in the tanks at
Yandina from disappearing again or from
being sold to a third party including ICSL. Breach of contract is the
triable
issue in this case. The Plaintiff on its own accord filed an
undertaking in this court on 7th March 2001. The balance of
convenience clearly is in favour of the Plaintiff. I need not canvass the
authorities in this
jurisdiction on this point. The Plaintiff was clearly
entitled to the relief sought in its Notice of Motion. It was on this
basis
that I granted the Orders sought on Friday last week. That is to say, I
ordered that:–
1 &nnsp;&&nsp;;&nspp;&nssp;&nsp;   /span>The time fome for hearing this Motion bedged;n>: 1">
2. & p;&nssp;&nsp; Tsp; The Defendant, itvantrvants, agents, or any other persons
claiming under or through the
Defe be rined further or other
order from in any way whatsoever moving transpoansportingrting sell selling processing or
otherwise dealing with all and any of the Defendant’s remaining crude
coconut oil whether in the Defendant’s Yandina storage
tanks or elsewhere in
the possession or control of the Defendant;
3. &nbbsp;&    A penal notitach to order rder 2 hereof;
4. &nbssp; &nsp; The Defe dantl, within 14 n 14 days of the date hereof, prepare,
file and serve on the Plaintiff
an account in writontaithe
follopartis in ct of thef the period 15 November, 2000 up to and
and
incluincluding ding
the dthe date of the making of this order:-
a. &nbssp;&nnbsp;&nsp; &nsp; &nbssp; &&nsp;;&nsp; &nbp;
n>spa collnut oil hoil held by or on behalf of the Defendant wherer
on each durie afotioneiod;
class=lass="MsoNormal" style="text-align: justify; text-indent: -36.0pt; margin-left: 108.0pt; margin-top: 1; margin-bottom:
1">
b. ;&nspp;&nssp; p; &nbp; &nbp; All ctconut oil poil produced by the Defendantach during
ement peribsp;
c. & p; &nsp; &nsp; ;&nbpp; &nnsp;&&nsp; &nbp;
spancoll ut oil soil sold transferred or otherwise dispof
collely “tsposi) by efendant on each date during the
aforementionntioned
peed period riod incluincluding ding the dthe date and place of the Disposition, the
name of the person in favour of whom the
goods were disposed and the price
paid for such oil either by money or other consideration;
5. p; &nsp; &nbbsp; &nbbsp;
<span>The Costs of and in connection with this application bervedp;
1">
(F1pt"> .O. Kabui)
Judge
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/sb/cases/SBHC/2001/13.html
