Galokisa v Tropic Islands Enterprises Ltd [2003] SBHC 92; HC-CC 063 of 2002 (14 April 2003)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 63 of 2002

JUNIOR GALOKISA, THERESA TAMOU, VIERA DICK
AND ELIZABETH MORGAN

V.

TROPIC ISLANDS ENTERPRISES LIMITED AND
PANATINA CHEMISTS LIMITED

High Court of Solomon Islands
(Palmer J.)

Date of Hearing: 14^th April 2003
Date of Judgment: 14^th April 2003

B. Upwe for the Applicant/Judgement Creditor
Respondent/Judgement Debtor – no appearance
G. Suri for the Garnishee

PALMER J: The Applicant/Judgment Creditor (hereinafter referred to as “the Plaintiffs”) commenced action by a specially indorsed Writ of Summons filed 7^th March 2002 against Tropic Islands Enterprises Limited (hereinafter referred to as “the Judgment Debtor”) trading as “The Pharmacy now Point Cruz Chemist”. The Plaintiffs claimed redundancy moneys, which had not been paid by the Judgement Debtor totalling $44,414.61 plus interest at 5% from 15^th September 2001 and costs on indemnity basis. By order of this court dated 7^th June 2002, the business name “Point Cruz Chemists” was deleted. On 13^th June 2002 an Amended Writ of Summons was filed. Service was effected by registered post on the registered office of the Judgement Debtor at c/- Goh & Partners, P.O. Box 261, Honiara (see affidavit of service of Charles K Ashley filed 26^th July 2002). Order 9 rule 8(2) of the High Court (Civil Procedure) Rules, 1964 (“the Rules”) permits service on a corporate body such as the Judgment Debtor by registered post on its registered office. This method of service was carried out in this case, as the Managing Director did not reside within the jurisdiction of the court. I am satisfied having read through the affidavit of Charles K Ashley filed 26^th July 2002 that due service had been carried out on the Judgement Debtor. I am satisfied as well the Writ was endorsed on the same date (21^st June 2002) it was sent by registered post. This entitled the Plaintiffs to proceed by judgment in default in the event there was a failure to enter appearance and defence. The Judgement Debtor failed to enter appearance within the required time and so on 26^th July 2002 Plaintiffs filed application for a Judgment of Default of Appearance to be entered by the Court. This was issued by the Registrar of High Court on 30^th July 2002 and served by the Plaintiffs on the Judgment Debtor on 31^st July 2002 (see affidavit of Charles K Ashley filed 9^th August 2002).

On 9^th August 2002, the Plaintiffs filed an application by way of a Garnishee Order to Show Cause on Panatina Chemists Limited (“the Garnishee”) supported by the affidavit of Charles K Ashley filed 9^th August 2002. The matter came before this court for hearing on 22^nd August 2002. On said date the Garnishee sought and was granted an adjournment for seven days in an attempt to have the outstanding issues with the Judgment Debtor sorted out. On 2^nd October 2002 the matter was re-listed for hearing. The court attached $61,000-00 of the amount of money sought from the Garnishee as well as directing that various court documents be served on Mr. Edward Francis Williams, the Managing Director of the Judgment Debtor by facsimile transmission. According to the affidavit of Barnabus Upwe filed 14^th April 2003, service of the documents was carried out by facsimile transmission on 3^rd March 2003.

The Plaintiffs now come to court by Notice of Motion filed 2^nd April 2003 for orders inter alia that the said sum of about $61,000-00 be paid into their solicitor’s trust account in satisfaction of the judgment sum.

Mr. Suri appeared for the Garnishee and made clear his position that he will abide any decision of the court. The Judgement Debtor did not appear although there is a fax on the file records dated 10^th April 2003, which appears to have been sent for this hearing by Mr. Edward Williams. This fax document purports to question the liability of the Judgment Debtor regarding the redundancy claims of the Plaintiffs. Unfortunately, it is too late now to question that claim. The Judgement Debtor has had all the time since about June 2002 to instruct legal counsel and defend the claim of the Plaintiffs for redundancy. Neither the Judgment Debtor nor Mr. Williams have done that. The only recourse now open to him is by appeal to the Court of Appeal.

I am satisfied that as at this point of time there is about $84,000-00 or so being held1 to the account of the Judgment Debtor of which $61,000-00 is subject to the attachment orders of this court. I am also satisfied on the evidence before me that there is a Judgment in Default of Appearance in favour of the Plaintiffs to the tune of $44, 396-64, plus interest at 5% from 15^th September 2001 and costs on indemnity basis. In the circumstances, I am satisfied the sum of $44, 396-64 should be paid to the Plaintiffs plus interest at 5% from 15^th September 2001 and costs on indemnity basis.

Orders of the Court:

1. Order that the sum of $44, 396-64 plus interest at 5% from 15^th September 2001 and costs on indemnity basis to be paid to the Plaintiff’s Solicitor’s Trust Account from the sum of $61,000-00 attached by order of this court dated 3^rd October 2002.
   

The Court.