Gemstar Seafood Ltd v Bycroft [2001] SBHC 88; HC-CC 011 of 2001 (3 December 2001)

p class="MsoNormal"rmal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> HIGH COURT OF SOLOMON ISLANDS<

Civil Case No. 11 of 2001

GEMSTAR SEAFOODS LIMITED

ROBIN BYCROFT

Before: Frank O. Kabui, J.

Civil Case No: 11 of 2001

Date of Hearing: 3^rd December 2001

Date of Ruling: 3^rd December 2001

Mr. C. Ashley for the Appellant

Mr. J Sullivan for the Respondent

RULING

(Kabui, J): By Notice filedfiled on 14^th November 2001, the Appellant sought the following orders-

1. &nbssp; &nsp; That the amoun SBD370BD370,000.00 paid into Court pursuant to paragraph (b) of the Order dated 28 September 2001 be aid o CourMisi ssocion behalf of f of the Appellant; and

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2. &nbssp; Costs be in t e pp Appe Appeal.

Upon the conclusion of the hearing I ruled against the Appellant and refused its application. I said I would publish my reasons later. This I now do.

ass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The Background

In a ruling delivered by MuriJ. on 3^rd July 2001, His Lordship dismissemissed the Appellant’s claim and awarded the Respondent’s counter-claim in the sum of AUD $410,000 plus costs on indemnity basis. This ruling was appealed by the Appellant in a Notice of Appeal filed on 2^nd August 2001. Security for costs of the appeal was ordered by the Registrar on 10^th September 2001. By an Order made by the Registrar on 28^th September 2001, the Appellant upon its own undertaking, was ordered to pay SBD 30,000.00 and SBD 370,000.00 respectively. The sum of SBD 30,000.00 was to cover costs whilst the sum of SBD 370,000.00 was to abide any money judgment resulting from the appeal. These two sums were to be paid into Court on or before 11^th October 2001. The enforcement of the judgment under the provision of the Deed of Acknowledgement of Debt and Forbearance was therefore stayed on this basis pending a decision in the appeal.

The Appellant’s Case

The only evidence in support of the Appellant’s applon was Mr. Ashley’s a affidavit filed on 14^th October 2001. That affidavit simply said that Mr. Ashley was acting on the instructions of his client, the Appellant. No other reason was given.

The Respondent’s case

Counsel he Respondent, Mr. Sullivan, quite rightly, in my view, opp, opposed the application. Firstly, he said that paragraph 1 of the of the Appellant’s grounds of appeal admitted that the Appellant owed the Respondent AUD 100,000.00. That admission, he said, was enough to persuade the Court to dismiss the application with costs. That is to say that even if the Respondent lost the appeal, the Appellant would still have to pay to the Respondent AUD 100,000.00 which in the local currency would amount to well over SBD 200,000.00 not to mention interest and costs. Secondly, Mr. Sullivan argued that it was unfair for the Appellant to come to court to remove the sum of SBD 370,000.00 because the stay of execution of the judgment in favour of the Respondent was the making of the Appellant. All in all, he said the Appellant’s application made no sense.

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> My Decision

In my view, the Appellant’s application was an odd one. I say this because having made an undertaking to pay the sums specified in the Court Order dated 28^th September 2001 and having paid those sums, it came back and wanted the sum of SBD 370,000.00 paid out again before its appeal could be heard. Its action was in effect to defeat the whole purpose of the order made on 28^th September 2001. The payment into court of SBD 370,000.00 was clearly a security for the immediate payment of the Appellant’s indebtedness to the Respondent at least to cover the admitted indebtedness of AUD 100, 000.00 if the Appellant won its appeal. The sum SBD 370,000.00 may well be insufficient if the Appellant should lose its appeal for the balance of AUD 310,000.00 may not even be recouped out of the sale of the land in Gizo, Western Province. It is on this basis that I refused the Application with costs. There was no ground at all to sustain the Application and I dismissed it accordingly.

F.O. Kabui

Judge