Paia v Kure [2007] SBHC 107; HCSI CC 250 of 2007 (30 August 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 250 of 2007

ELLEN PAIA

-v-

DR. JOHN KURE AND FRANCES KURE

Date of Hearing: 26 July 2007

Date of Ruling: 30 August 2007

W. Rano for the Plaintiffs
C. Ashley for the Defendant

RULING on application to continue interim injunctive orders.

Brown, J: The injunction was granted before the material brought by the defendants was disclosed. That material would have been relevant for this courts consideration before the injunction was granted. It was material know to the plaintiff.

There is a presumption that the building has the relevant statutory approvals. Much work has been done.

The plaintiff has by delay it would seem allowed to defendants to act to their detriment.

It is possible that damages will adequately recompense the plaintiff if the plaintiffs case that the defendants have encroached beyond that land boundary agreed, is successful.

It is unlikely this court would order demolition of the building work carried out to date.

In these circumstances Mr. Ashley says I should discharge the injunction. If I do not, he seeks a short time in which the plaintiff is to put an alternate proposal in the light of the material already filed.

The injunction remedy should be sparingly used.

The balance of convenience at this time, [when I realise the building which has progressed with interruption] lies with the defendants. As I say, the plaintiff may be compensated by an award of damages if the defendants are shown to have gone beyond what was agreed.

The stop-work notice was given in January 2006. These proceedings were instituted in July 2007.

Clearly these parties need time to negotiate, if possible a settlement otherwise the matter will proceed. If that happens, it is entirely probable neither party will be satisfied with the outcome.

In terms of the defendant’s summons of the 24 July.

I order

1. That paragraph 2 of the injunctive order be varied by allowing the defendants access to the building on the site in question to maintain protect and secure that building.

2. Such interim injunctions be continued pending suit or further order.

3. Such continuation, of injunctive order is tied to the need for both parties to in good faith, negotiate through their lawyers with the assistance of valuers of their own choosing to resolve the outstanding issues.

4. The matter will be re-listed for mention on the last Thursday of August 30 at 9:30 when the injunction will be reconsidered and directions given for the trial if pleadings have been complete

5. Suggested payments into court are premature at this juncture but the possibility of settlement need be explored before Thursday 30 August.

Costs are reserved.

I give liberty to apply.

NB. [On the matter coming back on the 30 August, on the defendant’s application, the interim injunctive orders were discharged]

THE COURT