Cardale v Red Beach Enterprises Ltd [2001] SBHC 96; HC-CC 026 of 2000 (5 January 2001)

HIGH COURT OF SOLOMON ISLANDS

CIVIL CASE NUMBER: 26 OF 2000

PETER CARDALE

-V-

RED BEACH ENTERPRISES LIMITED

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)

HEARING: 7TH AUGUST 2000
JUDGEMENT: 5TH JANUARY 2001

A & A Legal Service for the Plaintiff
Sol-Law for the Defendant

PALMER J.: There are two applications for consideration by this Court. One is a Summons filed on or about 20th July 2000 by the Plaintiff to stay orders of this Court dated 8th June 2000. The other is a Notice of Motion for Judgement filed 17th July 2000 by the Defendant.

On 7th June 2000, this Court heard Summons of the Defendant filed 1st May 2000. This Summons sought orders inter alia, for security for costs in the sum of SBD50,000-00 to be paid into Court or in such other form or sum as the court may determine. In default thereof it sought to have all further proceedings stayed until such time as security was given and that the Defendant be at liberty thereafter to apply to the Court to have the action struck out. The Defendant also sought orders for further and better particulars requested in its request filed 17th March 2000 within 7 days of the making of that order. The Plaintiff was not represented on 7th June 2000, though notice of hearing of the Summons had been served. Court waited for ten (10) minutes before proceeding with the Summons. After hearing Counsel for the Defendant and considering the various documents submitted in support of its application, Court granted the orders sought by the Defendant. This included the following, that:

“1. The Plaintiff provide security for payment for the Defendant’s costs in this action in the sum of SBD50,000-00 by payment of that sum into court;

2. The Plaintiff shall give the security ordered pursuant to order 1 hereof within 14 days of the date of the making of that order in default of which all proceedings herein on the part of the Plaintiffs shall be stayed until such time as the security is given and the Defendant shall be at liberty during the continuance of such default to apply to the Court to have this action struck out;
   
3. The Plaintiff provide the further and better particulars requested of it by the Defendant in the Defendant’s request for further and better particulars of the statement of claim filed herein on 17 March 2000 within 7 days of the date of the making of this order in default of which the Defendant shall be at liberty to apply to this court to have this action struck out and judgment entered for the Defendant.”
   

THE APPLICATION FOR STAY.

The Plaintiff brings his application for stay under the inherent jurisdiction of this Court. It is not in dispute the Court has jurisdiction to order a stay in appropriate circumstances; for instance where there has been an abuse of process.

The ground relied on by the Plaintiff for orders to stay as gleaned from submissions of Counsel for the Plaintiff, was merely for a chance to argue the case for security for costs. Apart from that he has not filed any affidavit in support nor provided evidence which might suggest that the point should be re-heard inter partes. Learned Counsel had sought merely to provide explanation for his absence at the hearing of the Summons on 7th June 2000, but has failed to provide material that would justify granting the orders to stay and to re-hear the question for security for costs.

ORDER FOR SECURITY FOR COSTS.

The Court has discretion to order security for costs where the plaintiff resides out of the jurisdiction of this court (Order 65 Rule 5 of the High Court (Civil Procedure) Rules, 1964). It has not been denied the plaintiff in this action had since termination of his employment with Defendant left the country. The writ was filed after he had left. In my respectful view this is a proper case for security of costs to be required. In Green v. Charnock (1791), 1 Ves. Jun. 396; and Massey v. Allen [1879] UKLawRpCh 228; (1879), 12 Ch. D. 807; it was held security may be ordered where the plaintiff goes to reside permanently abroad after institution of the suit.

NOTICE OF MOTION FOR JUDGEMENT.

The Defendant seeks orders for judgement to be entered against the plaintiff in default of payment of security for costs and in not providing further and better particulars as ordered by this Court on 7th June 2000. Security was required to be paid within 14 days of the Order of 7th June 2000 and further and better particulars to be filed within 7 days. These have not been complied with.

In my respectful view, the motion for judgement should be granted but with a reprieve. It would not be in the interest of justice to have the orders made effective immediately. There has been considerable delay in the delivery of this judgement due to ill health on my part, and had nothing to do with the manner in which progress of this case had been pursued by learned Counsels. In the circumstances I am minded to give the plaintiff a final last chance to comply with paragraphs 1, 2, and 3 of the Orders of this Court dated 8th June 2000. The plaintiff is given 14 days to comply with both orders failing which, the writ be struck out and judgement entered for the Defendant.

ORDERS OF THE COURT:

1. Dismiss Summons filed 20th July 2000 to stay orders of this Court.
   
2. Grant motion for judgement in favour of the Defendant but suspended on the following conditions:
   

(a) the Plaintiff provide security for payment of the Defendant’s cost in this action in the sum of SBD50,000.00 by payment of that sum into court, within 14 days;

(b) the Plaintiff provide the further and better particulars requested of it by the Defendant in the Defendant’s request for further and better particulars of the statement of claim filed on 17th March 2000, within 14 days;

in default, the writ shall be struck out and judgement entered for the Defendant.

3. The Plaintiff to bear the costs of the Defendant in this application.
   

THE COURT