Chow v Chow [2010] SBHC 31; HCSI-CC 92 of 2010; 99 of 2010 (10 June 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 92 of 2010
Civil Case No. 99 of 2010

BETWEEN:

FRANCIS CHOW
Claimant

AND:

CATHLEEN ALISI KATIA DOUGHLAS CHOW
Defendant

Date of Hearing: 12 May 2010
Date of Decision: 10 June 2010

Mr. Titiulu for claimant
Ms. Bird for defendant

DECISION ON APPLICATIONS FOR SUMMARY JUDGMENT

Cameron PJ:

1. The claimant seeks summary judgment against his wife (the defendant) in respect of two alleged debts.

CC 92 of 2010

2. The first alleged debt was said to have been created in 2005, when the claimant sold his 5000 shares in the company Lime Lounge Ltd for $900,000. As part of the purchase price a bank cheque for $470,000 was issued by Westpac Banking Corporation in favour of Francis Chow, and crossed ‘not negotiable’. It is alleged that the defendant collected the cheque, negotiated it in her own favour, and applied all the proceeds for her own benefit. The claimant alleges that the shares were held in trust for the two children of the claimant and defendant, which children are still minors.

CC 99 of 2010

3. The claimant alleges that in January 2009 he sold for $50,000 his own vehicle to a company of which he and the defendant were shareholders. He alleges that his wife, being a signatory to the company’s account, signed a company cheque for $50,000 in favour of ‘Cash – Cathleen Chow’, and then cashed the proceeds and used the money for her own benefit.

CCs 92 of 2010
99 of 2010

4. The defendant alleges that the shares in Lime Lounge Ltd. though in the claimant’s name, were in fact held in trust for her, and not for their two children. The defendant says that the claimant had nothing to do with the running of the company’s business, the Lime Lounge, which business the defendant co-managed. She further says that the only reason the shares were not in her own name was that she is not a Solomon Islander citizen. She also asserts that the claimant made no claim on her for the $470,000 until initiating this case.

5. As to the cheque for $50,000 in respect of the vehicle, the defendant says that the claimant acquiesced in her receiving and applying the funds for her own benefit.

6. Both alleged debts were incurred at a time when the parties were living together as husband and wife. There is no evidence that the assets which were realised to create the funds (the share and the vehicle) were other than matrimonial assets acquired during the course of the marriage and to which each party had an entitlement. The fact that the husband took no formal steps to assert his claim to the $470,000 for over 4 years suggests that he, too, may have considered the shares and the proceeds of their sale as matrimonial assets. So, too, the claimant failed to take formal steps in relation to the $50,000 for well over one year.

7. I was advised by Ms Bird for the defendant that the parties separated on 18 January 2010, and that a few days prior to this hearing divorce proceedings had been initiated by the defendant under the UK Matrimonial Causes Act 1950.

8. A strong inference arises that these two sets of proceedings have been initiated by the claimant as a result of the separation. What he asserts as clear cut cases of debts owed to him are in fact not clear cut at all, as there is no evidence that the shares and the vehicle were the separate property of the claimant such that the defendant had no entitlement to them. The fact that those assets were in the name of the claimant is irrelevant to the issue of whether in fact those assets form part of the matrimonial property.

9. In my view both these claims should appropriately be resolved as part of the matrimonial property division which will accompany the divorce proceedings. In that proceeding all matrimonial property claims can be considered at the one time so as to achieve a fair and just result. To single out for separate determination now just two transactions is potentially unfair to the defendant, who may wish to set-off any indebtedness to the claimant against any debts owed to the defendant.

10. For the reasons given, I dismiss both applications for summary judgment. I also dismiss both claims in their entirety as they ought to be brought in the context of a matrimonial property division under the Matrimonial Causes Act 1950. I make no order as to costs.

BY THE COURT

Justice IDR Cameron
Puisne Judge