Emmet v Emmett [2011] SBHC 165; HCSI-CC 46 of 2008 (21 December 2011)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 46 of 2008

BETWEEN:

ANITA EMMETT
Applicant

AND:

RONOLD EMMETT
Respondent

Date of Hearing : 28 September 2011
Date of Ruling : 21 December 2011

Dr. P Tagini for Applicant
M Pitakaka for Respondent

RULING

1. The Applicant and the Respondent were married in Australia. They moved to Solomon Islands in 1996 and lived together in Honiara. However, since 2002, the Applicant and the Respondent lived separately following the breakdown of their marriage. A decree absolute was made on 2 December 2008. Their marriage was dissolve on that date.
   
2. The Applicant claims her share of properties that they jointly acquired during the course of their marriage. To protect properties which the Applicant claims ownership of and interests in, the Applicant obtained interim restraining orders against the Respondent from selling those properties listed in the attachment to the schedule to the claim. At the same application though which the Applicant obtained the interim restraining orders, she obtained injunctive orders restraining the sale of the motor vessel, the MV Buccaneer, or if already sold, for the proceeds of such sale to be paid and kept in trust in the joint account in the names of the parties' solicitors.
   
3. On 19 June 2009, Hon. Justice Naqiolevu (as he then was), granted orders in the following terms:
   
   • (a) The Respondent, his servants, or person acting under his instructions be restrained from selling the vessel MV Buccaneer or any other property listed in the Applicants claim for matrimonial property;
     
   • (b) Alternatively, all proceeds from the sale the MV Buccaneer be paid into a trust account in the names of the solicitors for the parties, pending the determination of the Application over the matrimonial property in this case.
     
   • (c) The parties are at liberty to apply for further orders, within 7 days' notice to the other party.
     
   • (d) Costs.
     
4. On 13 July 2009, Hon. Justice Naqioleveu (as he then was), following a hearing in respect of an application for declarations that MV Buccaneer, formed part of the matrimonial properties and that she was entitled to a distribution of the matrimonial properties found as follows:
   
   • (a) The Applicant was entitled to distribution of the properties;
     
   • (b) Declined to grant declarations sought...........

"Until satisfied as to the individual proprietary rights of the parties in the matrimonial property".

5. In an Amended Application filed on 27 November 2009 the Applicant applies for the following relief:
   
   1. Declaration that the Applicant is entitled to 50% of the total value of Emmett Logging (SI) Pty Ltd based on the list of items in schedule A estimated at SBD4,148,363.76;
      
   2. Declaration that the Applicant is entitled to 50% of the total value of the properties transferred from Mintane Pty Ltd and to Emmett Logging (Aust) Pty Ltd to Emmett Logging (SI) Ltd currently estimated at SBD4,073,090.00;
      
   3. Order that the Respondent produce statement of accounts for Emmett Logging (SI) Pty Ltd and Emco Pacific (SI) Ltd, account for all assets acquired since the formation of these companies, their whereabouts and their current values for those sold, account for the sale proceeds;
      
   4. Order that the Respondent account for all proceeds received from the sale of MV Buccaneer;
      
   5. Declaration that the residential property in PN: 191-002-93 is a family home and so the Applicant is entitled to 50% of its true value;
      
   6. Order that the Applicant be named a beneficiary in half of the Respondent's life insurance policy MLC No. 16699700D;
      
   7. Order that the Respondent pay half his take home pay from the date of commencement of separation to the date when the Applicant found employment;
      
   8. Order that the Applicant is entitled to half of the total refund for the down payment on the property in PN: 192-002-92 estimated at $130,000;
      
   9. Order that the property in PN: 192-002-93 be delivered free of any encumbrances to the Applicant;
   10. Permanent injunction restraining the Respondent, his supporters or any person acting under his authority from removing, selling or transferring any of the properties covered by this case except by consent of the Applicant;
       
   11. Any other order the court deems fit;
       
   12. Costs.
       
6. The parties to this proceeding have not agreed to the identities matrimonial the properties. The court could not do that task unaided by the parties. What the court could do though is to reproduce documents with properties and values in them to do that job. Some of the properties in some of the documents may have already been disposed off by sale or other ways. There may be further hearings after the documents have been perused by the parties to make submissions on the properties which form part of the matrimonial properties and those which are not.
   
7. Emmett Logging (Aust) Pty Ltd Mintane Pty Ltd Assets
   

No	Items		Make	Model	Attachments	AUD$ Purchased list	AE2 Exhibit
Australian Company Assets
1	1	Caterpillar		D7G Dozer		$ 80,000.00	1a,1b
2	2	Komatsu		D65E8 Dozers		$ 140,000.00	2a, 2b, 2c, 2d
3	1	Mack		Log Truck		$ 50,000.00	3a
4	1	Caterpillar		966D Loader	Log Forks & Bucket	$ 80,000.00	4a,4b,4c
5	1	Caterpillar		966C Loader	Log Forks	$ 55,000.00	5a,5b
6	1	Caterpillar		528 Log Skidder		$ 85,000.00	6a
7	1	Komatsu		220-6 Excavator	Log Forks & Bucket	$ 70,000.00	7a, 7b
8	1	Nissan		Twin Cab – Red		$ 5,000.00	8a, 8b
9	1	Toyota		Tray – White		$ 3,114.00	9a
10	1	Toyota		Land Cruiser Blue		$ 45,000.00	10a
11	1	Nissan		Tray – Silver & Green		$ 35,000.00	11a, 11b
12	1	Toshiba		Lap Top Computer		$ 2,000.00
13	1	Celron		Computer		$ 1,423.00	13a
14	1	Honda		Trail Bike		$ 1,000.00	14a
15	1	Triumph		Motor Bike		$ 10,000.00	15a
16	1	12' Aluminium		Boat	25 HP Motor	$ 2,000.00
17	1	Mobile		Fuel Tanker		$ 2,000.00	17a
18	2	Freight		Containers		$ 4,500.00	18a
19	1	Honda 4x4		Motor Bike		$ 3,000.00	19a
20	1	Pansonic		Fax Machine		$ 500.00
21		Tools & Parts		Assorted		$ 100,000.00	21a
22	1	Satelite Phone		NEC		$ 6,081.00	22a
23	1	Welder		Trailer		$ 4,000.00	23a
24	1	Mercedes Benz		Dump Truck		$ 30,000.00	24a
25		MLC Life Insurance					25a, 25b
						$ 814,618.00

8. Emmett Logging (SI) Ltd trading as Emco Pacific (SI) Ltd
   

No	Items	Make	Model	Attachments	AUD$ Purchased	SBD$ Purchased	AE3 Exhibit
Solomon Islands Company Assets
1	2	Caterpillar	527 Track Skidders		$200,000.00	$1,040,176.00	1a
2	1	Mercedes	Dump Truck		$35,000.00		1a Photo
3	2	Hino	Dump Truck			$ 20,000.00
4	1	Caterpillar	Grader 12G			$ 35,000.00	4a
5	1	Komatsu	Loader	Bucket		$ 70,000.00	5a
6	1	Range Rover				$ 67,000.00	6a
7	1	Isuzu	Twin Cab			$ 28,000.00	7a
8	1	Kia	Sportage			$ 22,000.00	8a
9	1	Toyota	Tray – Green			$ 10,000.00	9a
10	1	Dell	Computer		$2,275.90		10a
11	1	Acer	Computer		$2,000.00
12	1	Miller	Welder		$5,000.00
13	1	Wilson	Generator			$ 43,743.00	13a
14	1	Mahoe	Sawmill			$ 211,035.40	14a, 14b
15	1	Co' Aluminium	Barge			$ 5,000.00	15a
16	2	2x Yanmar	Boat Motors			$ 20,000.00	16a
17	1	1x Yanmar	Boat Motors			$ 20,000.00	17a
18	1	Aluminium	Single Hull			$ 5,000.00
19	1	Fibreglass	Ray Boat			$ 18,000.00	19a
20	6	Sthil	Chan Saws			$ 22,894.96	20a
21	2	Radios	SSB			$ 3,116.85	21a
22	1	Sharp	Fax Machine			$ 1,500.00	22a
23	1	Canon	Fax Machine			$ 500.00
24	1	Canon	Photo Copier			$ 1,500.00
25	1	Electronic	Time Card Machine		$400.00
26	1	Pentax 100	Digital Camera		$800.00
27		Office	Desks & Chairs			$ 1,374.00	27a
28		Assorted	Steel Sheets			$ 28,600.00	28a
29	1	Satellite Phones				$ 7,776.67	29a
30	4	Mobile phones			$800.00
31	1	Cargo Ship	Buccaneer		$230,000.00		31a,31b,31c
32	1	Barge	Frazer Coast Ship Brokers_Part payment			$ 49,552.28	32a
33	1	Fridge	Office			$ 1,754.40	33a
34	3	Compressors				$ 11,372.00	34a,34b
35	1	Hose Cutting Machine				$ 2,000.00
36		Tools & Parts	Assorted			$ 20,088.70	36a
37				TOTAL	$476,275.90	$1,766,984.26

9. EMCO PACIFIC (SI) LTD
   

PLANT & EQUIPMENT REGISTER

(CURRENT)

Skidder	Model 528 CAT Engine 3306 Trans Winch 528	S/No: 96C 00730 S/No: 08Z 57081 S/No: TA01378 S/No: 3GB00688			ARR – 8V9004 ARR – 2W0817 ARR – 8P8278 ARR – 3P2800
Skidder	Model 527 CAT Engine 3304 Trans Winch 527-D00110	S/No: 3DS00334 S/No: 09216610 S/No: 2ZY01087 S/No: 9700866			ARR – 1387501 ARR – 1298177 ARR – 1319269 ARR – 1382449
Skidder	Model 527 CAT Engine 3304 Trans Winch 527-D00110	S/No: 3DS00333 S/No: 09Z16599 S/No: 2ZY01086 S/No: 9700854			ARR – 1387501 ARR – 1298177 ARR – 1319269 ARR – 1382449
Mack-Superliner	Chassis No: Engine No: Delivery Date:	R722RS-13356A E9-5009W1274 23/11/90
Air Diesel DEUTZ	Model: Motor No:	F3L 1011 00043745
Dump Truck	Model Chassis No: Type Model: (To suit Australian Standards)		Daimler Benz 3953226X4 683907 2632S/32 6X4
Dozer	Model D64-8 Komatsu Hyster Winch W6F-6000		S/No: 47015 S/No: W6FPIF5279K42
Dozer	Model D76 CAT Engine 3306 Trans Winch CAT 57	S/No: 65V04975 S/No: 10206269 S/No: 7KA01749 S/No: 3P4463-4		ARR – 398930 ARR – IW0543 ARR – 9P5382
Wheel Loader	Model 966C CAT Engine 3306	S/No: 78G3572 S/No: 44V15712		ARR – 395716 ARR – 7N3601

10. 
    

	Machine/Vehicle	Type	Reg No:	Purchase Date	Previous owner	Remarks
1	Toyota 4WD	Dual Cab	AB525	26/09/2007	KFPL
2	Land Rover	Discovery	AB3939	27/03/2007	SI Government	Registered under Tukia to hide from spouse
3	Isuzu	Big Horn	AB3936	2006 or 2007	Bought 2nd hand in NZ when Ron & Tukia were there	Brought in from NZ arrived 27/04/07 and registered under Terry.Ron gave me vehicle and later reclaimed vehicle saying I had falsified ownership documents. Never bothered opening case as I'm no digger but surprised of such a person who eats his vomit. A true liar and con.
4	Isuzu	D Max	AB4109	25/07/2007	New	Bought through Credit Corp for Billy.
4	Aluminium Work Boat			07/01/2008	New	Bought from Oceanic Marine for Bucaneer but was not included with ship sale.
5	Caterpillar	Forklift		28/01/2008	Delite Bakery	Sold to Silent World
6	Caterpillar	3306 engine		29/01/2008	Delite Bakery	Sold to Steve Abana
7	Hitachi Excavator	Zaxis 200		2006	New	Court hearing on both machines for ownership between KFPL and Emco.
8	Hitachi Excavator	Zaxis 210		2007	New
9	Nissan Log Truck	CW520	K422	16/11/2007	KFPL	Re-registered AB6792
10	Toyota 4WD	Single Cab	K139	30/09/2007	KFPL	Re-registered AB586
11	Toyota 4WD	Land Cruiser	K141	30/09/2007	KFPL
12	Toyota 4WD	Land Cruiser	K142	30/09/2007	KFPL
13	Timber jack	Skidder	K425	30/09/2007	KFPL
14	Caterpillar	Wheel Loader	K437	30/09/2007	KFPL
15	Caterpillar Excavator	3208	K411	30/06/2008	KFPL
16	Caterpillar Excavator	320B	K427	30/06/2008	KFPL
17	Caterpillar Excavator	320C (Burnt)	K435	30/06/2008	KFPL
18	Isuzu	Fuel Tanker	K1413	30/06/2008	KFPL
19	Yamaha	40hp OBM		2006	New
20	Toyota 4WD	Dual Cab	AB1240			Billy had exchanged with Buccaneer Shipping Blue Land Cruiser

11. List of Assets Brought into Solomon Islands

	ITEM	VALUE (AUD$)
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 8 1 1 1 1	20' Caravan Parts and tools No 2 Container 20' Caravan Parts and tools No 2 Container Komatsu PC 220-6 Excavator GD 300 Grader Komatsu D65E8 Dozer Komatsu D65E8 Dozer Caterpillar D7G Dozer Caterpillar 528 Skidder Trailer Welder Hains Hunter 25' Boat Nissan Navara Double Cab Nissan Navara Single Cab Ute Nissan 720 Ute Mobile Fuel Tanker View master Laptop Computer Pentium 11 Computer 4 wheel Motorbike Sthil Chain saws Mack Superliner Truck & Log Junker Caterpillar 966 wheel Loader Mercedes Benz Dump Truck Loader Log Grab Total	5,000 150,000 4,000 5,000 150,000 4,000 140,000 35,000 105,000 95,000 120,000 100,000 4,000 35,000 20,000 16,000 10,000 3,000 4,000 3,000 7,000 12,000 105,000 70,000 32,500 5,000 $1,080,500	sold (SI)$95,000 sold (SI)$91,213
1 1 1	Toyota Land cruiser 4x4 No 1 Container Excavator Bucket	AUD 3,114	(SI) 40,000

12. LETTER OF AGREEMENT

At a meeting between EMCO PACIFIC(SI) Ltd. (Silverio Buin & Mike Hammond) and UTA SHIPPING (Patterson Aris) at Emco Pacific Ltd offices, Ranadi at 1:00p.m. Friday 19-06-09, the following was agreed.

1. UTA Shipping would purchase the M.V.Buccaneer from Emco Pacific (SI) Ltd for the sum of $1,399,500 sbd (One million dollars sbd on signing of a Bill of Sale.
   
2. Payment as follows: One million dollars sbd on signing of a Bill of Sale.
   

(a) The Bill of Sale to state the M.V. Buccaneer is free from all encumbrances.
(b) The Bill of Sale to register all ancillary equipment relating to the MV Buccaneer that will be included in the sale.

3. The balance of $399,500 sbd (Three hundred and ninety thousand, five hundred dollars) will be paid in four (4) monthly instalments of $99,875 sbd (Ninety nine thousand; eight hundred and seventy five dollars) First payment to commence three (3) months after the signing of the Bill of Sale and a further three (3) payments each of the three month thereafter.
   

(a) Emco agrees to look favourably at the possible granting of an extension of the three (3) month period prior to payment should some 'Act of God' or some other reasonable unforeseen acceptable circumstance cause a delay in the registration of MV Buccaneer beyond the three (3) months of signing the Bill of Sale.

4. The parties acknowledge that this agreement is to be sent to Ron & Bill Emmett for approval prior to a Bill of Sale being drawn up.
   

Signed:___________________________ Patterson Aris, UTA Shipping

Signed:____________________________ Silverio Buin, Emco Pacific (SI) Ltd.

Signed:____________________________ Mike Hammond, Witness.

13. Emmett Logging (SI) Ltd trading as Emco Pacific (SI) Ltd
    

No	Items	Make	Model	AUD$ Purchased	SBD$ Purchased	AE4 Exhibit
Solomon Islands Company Assets
1	1	Panatina	House 1		$257,988.90	1a, 1b
2	1	Panatina	House 2	$20,000.00	$30,000.00	2a,2b,2c
				$20,000.00	$287,988.00

14. EMCO Pacific (SI) Ltd
    

Land valuation for Parcel No: 191-010-283 located at Ranadi Industrial Area, Honiara.

Considering the foregoing, it is my candid opinion that the fair and reasonable value for the subject property is $7,700,000.00 (Seven million and seven hundred thousand dollars only)

Land only	$7,687,200.00
Say;	$7,700,000.00

Disclaimer:

This report is solely prepared for the purpose requested. I have no responsibility to any third party should the property is sold at a figure other the figure in this report.

15. For the meantime, any restraining orders by the court will continue to be in force until further orders of the court. Further declared orders sought by the Applicant would be considered at and when the matter of matrimonial properties has been considered and decides.
    
16. The Respondent is to pay the Applicant's costs of this part of this application.
    

Order accordingly.

THE COURT