Sikua v Tradewinds Investment Company Ltd [2011] SBHC 178; HCSI-CC 138 of 2009 (23 August 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Registrar Withers)

Civil Claim No. 138/2009

BETWEEN:

Honourable Derek Sikua
1st Claimant

-And-

Jeremiah Manele
2nd Claimant

-And-

Tradewinds Investment Company Ltd
(T/A The Island Sun Newspaper)
1st Defendant

-And-

Priestley Habru (as Editor of the Island
Sun Newspaper)
2nd Defendant

-And-

Melanesian Holdings Limited
(T/A Provincial Printing Press)
3rd Defendant

Mr P Afeau for Judgment Creditor/Claimant
Mr W Rano for 1st & 2nd Judgment Debtors/Defendants
Mr A Radclyffe for 3rd Judgment Debtor/Defendant (granted leave to withdraw on 29 June 2011)

Date of Hearing: 10 August 2011
Date of Judgment: 23 August 2011

1. This matter initially came before me as Registrar to conduct an Enforcement Hearing under r21.38. This provides a remedy for the Enforcement Creditor to have the Enforcement Debtor attend before the Registrar and be examined about their financial circumstances and how they propose to pay the judgment debt.

2. An Enforcement Hearing was conducted on 29 June 2011 and Priestly Habru as editor of the Island Sun Newspaper was examined on oath as to the financial affairs the 1st Defendant Tradewinds Investment Company Ltd trading as The Island Sun Newspaper. At the commencement of this hearing Mr Radclyffe was granted leave to withdraw as there was an indemnity agreement between his client the 3rd defendant and the 1st & 2nd defendants.

3. Following the hearing the matter was adjourned to allow counsel and their respective clients to review the material submitted and for the Judgment Creditor to consider an offer as to terms of payment.

4. The matter subsequently came before me again on 10 August 2011.

5. I was informed that by letter dated 27 July 2011 a repayment schedule was forwarded by the 1st Judgment Debtor to the Judgment Creditor and following consideration this was accepted. The acceptance was however conditional upon costs being awarded in respect of the Enforcement Proceedings and in particular these costs were being sought on an Indemnity basis.

6. Mr Afeau submitted two Invoices in support of his contention that costs should be awarded on an indemnity basis. This earlier invoice dated 20 January 2011 appears from the document to relate to work completed for the period 9 August 2010 until 21 September 2010 when the court ruled on the issue of damages and costs.

7. As this invoice relates to work prior to the issue of enforcement proceedings I have no hesitation in determining that these costs do not form part of the costs of enforcement.

8. The second invoice submitted is dated 10 August 2011 and relates to costs incurred in respect of enforcement proceedings.

9. The rules as they apply to enforcement proceedings allow for costs of the enforcement r21.32 (c) (i). As such they are to be stated in the form of enforcement order. In this instance the Enforcement Hearing Order served on the Judgment Debtors did not seek or advise the Judgment debtor of any costs being sought for enforcement.

10. I am prepared in this instance to use the provisions of r1.16 and allow the Judgment Creditor to seek to recover its costs in respect of enforcement of the High Court Judgment.

11. In respect of whether these costs should be on an indemnity basis as requested by counsel for the Judgment Creditor, Counsel submitted that as costs on an indemnity basis were awarded in the High Court, this same costs regime should continue until the judgment debt is paid. It was submitted that the 1 year delay since costs were awarded in the High Court were sufficient reason to apply on an Indemnity basis to the enforcement costs.

12. For the 1st and 2nd Judgment Debtors, Mr Rano suggested that as no time limit was placed for the payment of the High Court award it was not unreasonable for his client to await enforcement proceedings before making a commitment to pay. He submitted that his client was prepared to pay for the costs of enforcement however these should be awarded according to scale.

13. In the Judgment on damages delivered by Justice Chetwynd on 21 September 2010 at paragraph 15 he has given his reasons why costs on an Indemnity Basis were awarded. In particular he has stated..................

a. There is no doubt that the 1^st and 2^nd defendant's conduct of the proceedings prolonged them and increased the costs incurred.

14. I have no information submitted by either counsel as to earlier attempts made directly between the parties as to proposals for payment. In fact on the basis of the documents on file it appears that although Judgment was delivered on 21 September 2010 nothing was done in relation to payment or enforcement until the Application for an Enforcement order was filed on 12 May 2011.

15. If a proposal had been made earlier as to payments by the 1st and 2nd Judgment Debtors it would have been unnecessary for the Judgment Creditor to apply to the court for enforcement proceedings. It was only after an Enforcement hearing was conducted that a schedule of payments was submitted to the Judgment Creditor.

16. On that basis I am prepared to rule that costs should be allowed on an Indemnity basis under r24.11 as enforcement proceedings were required by the Judgment Creditor to be brought due to the non-compliance with the order of the court made on 21 September 2010 requiring the payment of damages and costs.

17. I see no reason why Mr Afeau's costs for enforcement as set out in the invoice dated 10 August 2011 in the sum of $5,500.00 should not be allowed.

Order

The 1st and 2nd Judgment Debtors to pay the amount of the judgment entered as perfected by order sealed and signed on 15 March 2011 together with Enforcement Costs in the sum of $5,500.00.

Payments to be made as advised in the letter from Island Sun dated 27 July 2011 with any necessary adjustment for costs.

Dated this 23rd day of August 2011.

Gavin J Withers
Registrar