Sawane v Ashley [2011] SBHC 125; HCSI-CC 132 of 2009 (19 October 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 132 of 2009

BETWEEN:

FRANCIS SAWANE & MOLAISUFA
Claimants

AND:

CHARLES KAUKUI ASHLEY
(Carrying on Business A & A Legal Services)
Defendant

Date of Hearing: 26 September 2011
Date of Ruling: 19 October 2011

A. Radclyffe for Claimants
C.K. Ashley in person for Defendant

RULING

1. This is an application by the Defendant for orders that this proceeding including any judgment, order and bankruptcy be stayed pending further orders; and that costs of this application be costs in the cause.
   
2. On 15 June 2010, an application for summary judgment was upheld and judgment was entered against the Defendant in the sum of SBD1, 110,000-00 together with interest at the applicable commercial rate from 26 February 2009 until payment and costs on an indemnity basis to be agreed or taxed and in any event are payable within 28 days from 16 July 2010.
   
3. Bankruptcy Notice was filed at the High Court on 11 August 2010. On 6 June 2011, and a notice for application for an enforcement order was filed in the High Court.
   
4. On 5 November 2010, the Defendant filed an application referred to in paragraph 1 above. He filed a sworn statement in support of that application on 15 December 2010. In his sworn statement he deposed that on 28 February 2009 Constance Nuaniani Swawane Timothy gave him a letter which purportedly came from the Claimants. He says that the judgment, orders and the bankruptcy notice in this proceeding were obtained based on the fraudulent letter of 28 February 2009. He deposed that he sought the orders in his application as it was clear that the Claimants have chosen to prosecute him for matters which are the subject of this proceeding.
   
5. The Claimant opposed the application for stay because the Defendant had no defence to the claim. The Claimants submit that the application for stay should have been made before judgment was entered. There was no appeal made against the summary judgment, and the Claimant have to enjoy the fruits of the judgment. The tort felony rule does not apply in this case, however, the court has discretion whether to dismiss or grant a stay of judgment.
   
6. This court has discretion to grant or dismiss an application for a stay of a judgment or order or for a stay of an enforcement proceeding.[1]
   

The Defendant will be tried for criminal offences in relation to the Claimants funds which he deposited into his Solicitor Trust Account before the end of this year. That is to say that the trial will start on 14 November 2011 and will run for a period of 4 weeks.

7. This court will exercise its discretion to grant a stay of the summary judgment, orders and enforcement proceedings against the Defendant as from 13 November 2011 until the last day of closing submissions by the Defendant in the criminal trial pending against him. This is to allow him to devote his time during that period to the criminal case against him. Order accordingly.
   

THE COURT

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^[1] Rules 17.77 and 17.78 of the Solomon Islands Courts (Civil Procedure) Rules 2007.