Emmet v Emmet [2004] SBHC 26; HC-CC 158 of 2003 (24 March 2004)

HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 158 of 2003

ANITA EMMETT

-v-

RONALD DOUGLAS EMMETT

HIGH COURT OF SOLOMON ISLANDS.
(KABUI, J.).

Date of Hearing: 23^rd March 2004
Date of Ruling: 24^{t h} March 2004

A. Radclyffe for the Plaintiff.
J. Apaniai for the Defendant.

RULING

Kabui, J. This is an application by summons filed by the Plaintiff on 16^th March 2004, seeking the following orders-

1. that the Defendant comply immediately with the maintenance order dated 10^th November 2003 and that in default the Defendant’s defence and counter-claim be struck out;
   
2. that the Plaintiff shall be entitled to continue to reside in the house she is currently occupying at Panatina Ridge;
   
3. that the maintenance order be extended for such period as the court thinks fit;
   
4. such further orders as the court thinks fit.
   

The Background.

The Plaintiff filed a Writ of Summons and a Statement of Claim on 10^th July 2003 claiming a number of orders to be made in her favour against the Defendant. The Defendant entered appearance on 16^th July 2003. The Defendant filed his defence on 11^th August 2003 with a counter-claim against the Plaintiff. The Plaintiff filed her reply and defence to the counter-claim on 15^th August 2003. The Defendant joined issue on 25^th August 2003. A consent order for directions was filed on 10^th September 2003. On 11^th September 2003, the Plaintiff applied by Summons seeking restraining orders against the Defendant. The orders sought were granted by Brown, J. on 25^th September 2003. On 4^th November 2003, the Plaintiff again applied by Summons for further orders. Orders by consent were signed by Brown, J. on 10^th November 2003 and later amended on 12^th November 2003. The Defendant did pay the sum of $6,000.00 being the first payment of maintenance under the court orders of 10^th November 2003. No further payments of the same amount have been made since the first payment was made.

The Plaintiff’s case.

The case for the Plaintiff is that set out in her Summons. Firstly, the Defendant must comply with the maintenance order immediately in default of which the Defendant’s defence and counter-claim be struck out. Secondly, the Plaintiff be allowed to continue occupying the present house in which she now lives. Thirdly, the maintenance order be extended for a period of time to be decided by the Court.

The Defendant’s case.

The Defendant’s case is that Emmett Logging (SI) Ltd has not been active since September, 2003 due to lack of funds. Counsel for the Defendant, Mr. Apaniai, argued that the call for the striking out of the defence and counter-claim was not the correct relief to be sought because the correct relief would be contempt of court for disobeying a court order as opposed to disobedience of orders for directions etc. Furthermore, Counsel argued that the house being occupied by the Plaintiff was the property of Billy Emmett, the son of the Plaintiff and the Defendant who was not a party to the proceedings so far. The Defendant also opposed at the hearing the maintenance order being extended.

Should the orders sought by the Plaintiff be granted?

The orders made on 10 and 12^th November 2003 are consent orders. The terms of those orders do represent the mutual agreement of the parties to them. Like any other agreement the terms of the consent orders can be varied by mutual agreement of the same parties to it. (See Fareast Enterprises (SI) Limited v. Martin Tsuki, Civil Case No. 042 of 2001.) In this case, the Defendant did not wish to vary the maintenance order after having failed to abide by the terms of that order. The reason given by the Defendant for non-compliance was financial difficulties encountered by Emmett Logging (SI) Limited since the consent order was made in November, 2003. That I understand but that argument does not take the matter any further than the fact that the consent order stands until varied or set aside. Counsel for the Defendant, Mr. Apaniai, however argued that the terms of the maintenance order was that the parties would make provision from the account of Emmett Logging (SI) Limited for the sum of $6,000.00 per month to be paid to the Plaintiff’s account on the 10^th day of each month. Counsel argued that since Emmett Logging (SI) Limited was not making money that obligation became impossible to fulfill by the Defendant. Counsel for the Plaintiff, Mr. Radclyffe, on the other hand, argued that the Defendant was the person who was expected to make provision for the Plaintiff because he was in charge of the day to day operation of Emmett Logging (SI) Limited and the inability to pay up was due to transfer of moneys from Emmett Logging (SI) Limited to EMCO Pacific Limited. The fact is that I am being asked by the Plaintiff to order the Defendant to immediately comply with the maintenance order and having done so and the Defendant again defaults in complying that the defence and counter-claim set up by the Defendant be struck out. I do not think I can do that in this case. The reason is that the Defendant is already in default of the maintenance order. I cannot make a self-executing order with a time limit. This point was the third argument advanced by Counsel for the Defendant, Mr. Apaniai, to side-step the argument that the Defendant had not asked for a variation of the maintenance order and was therefore bound by the terms of the consent order. Counsel argued that the correct thing to do in this case was to attach the Defendant for contempt of court for disobeying a court order. I agree with this argument. An order having been made by the court and is subsequently disobeyed by one party, that party may be attached for contempt of court under rule 21 of Order 61 of the High Court (Civil Procedure) Rules, 1964 “the High Court Rules”. This is the enforcement procedure for parties who deliberately disobey court orders to the disadvantage of the other party. In the case of disobeying consent orders of the court, the same procedure would apply. See Green v. Rozen [1955] 2 All E.R. 797 at 800). This procedure has not been applied in this case and so I would refuse the order sought in paragraph 1 of the Plaintiff’s Summons.

As to the order seeking continued occupation of the house currently occupied by the Plaintiff, the undisputed position is that it is owned by William Emmett, the son of the Plaintiff and the Defendant, who had instructed Patrick Lavery & Co. to evict the Plaintiff from his house if the Plaintiff did not move out within 7 days. Whilst the Plaintiff is a shareholder and director of Emmett Logging (SI) Limited which purchased the house for the son, the parties are separate legal entities. The son is not a party to this case at this stage. He may well be for obvious reason if there is a dispute over the settlement of properties between the Plaintiff and the Defendant. The house is not obviously the property of the Company of which the Plaintiff is a shareholder and director because the registered owner of it is William Emmett though he is the son of the Plaintiff. The son is entitled to object to his mother occupying his house without his permission. It seems that the mother and son relationship in this case has been affected by the dispute between the parties. That is sad but the fact and the law is that William Emmett is the current legal owner of the house and his permission is required for the Plaintiff to continue occupying the house. No legal basis has been established by the Plaintiff upon which I can act and override William Emmett’s right of ownership in the house. I would also refuse to make the order sought in paragraph 2 of the Plaintiff’s Summons.

The maintenance order lapsed in February this year according to paragraph 3 of the consent order of 10^th November 2003. I am being asked to extend it for such period as I think fit. In terms of paragraph 1 of the consent order of 10^th November 2003, the injunction order imposed on 25^th September 2003 would be discharged automatically upon the first payment being made of $6,000.00. So the injunctive order of 25^th September 2003 is gone. Paragraph 2 prevents the Defendant, his servants or agents from removing money from the account of Emmett Logging (SI) Limited without the knowledge and consent of the Plaintiff, such consent not to be unreasonably withheld as the Plaintiff is a director. The Plaintiff likewise is prevented from taking away or removing any monies from Emmett Logging (SI) Limited without the written consent of the Defendant so long as the Defendant observes the maintenance order. Now that the Defendant has defaulted under the maintenance order, the Plaintiff’s obligation in this regard is in doubt. The fact however is that the maintenance order has lapsed without further payments of the remaining three instalments of $6,000.00 each. The Defendant has now explained the reason for not being able to pay. This being the case the parties may need to talk again. I do not think I can extend the consent order because if I do so it will mean extending the agreement of the parties unilaterally without their mutual consent. An application to extend the period of the maintenance order is a request for the variation of the consent order by substituting 4 months with a further period of time. The words, “ liberty to apply” in paragraph 3 of the consent order of 12^th November 2003 would apply to the working out of the consent order rather than conferring the right upon any party to vary the order made. (See Christel v. Christel [1951] 2 All E.R. 574). At page 577, Denning, LJ said with regards to consent orders-

“...I do not think the court can alter or vary the agreement of the parties under the “liberty to apply.” It can only do what is necessary to carry the agreement into effect...”

The agreement in the consent order was that the maintenance order was to last for 4 months. Any extension would have to be by mutual consent. The need for further negotiation is but obvious to get the need of the Plaintiff back on track. The Plaintiff may need to press her need for maintenance afresh in the event that the consent order for maintenance has lost its teeth to bite due to the reason given by the Defendant and any subsequent lack of communication between the parties. The order sought in paragraph 3 of the Plaintiff’s Summons is also refused. The application as a whole is therefore dismissed. The parties will meet their own costs.

F.O. Kabui
Puisne Judge