Li v Guo [2011] SBHC 61; HCSI-CC262 of 2008 (12 August 2011)

HIGH COURT OF SOLOMON ISLANDS
Mwanesalua J

Civil Case No. 262 of 2008

BETWEEN:

GUO FENG LI
Claimants

AND:

ROBIN GUO
First Defendant

AND:

MATHIAS SIMUKAHI
Second Defendant

AND:

ATTORNEY-GENERAL (Representing the Registrar of Titles)
Third Defendant

HEARING: 18 July 2011
RULING: 12 August 2011

R Kingmele for the Applicant
M Tagini for the Claimant
K Levi for the First and Second Defendants
J Muria (Jr) for the Third Defendants

RULING

Mwanesalua J:

1. This is an application by Solomon Breweries Limited ("SBL"), filed on 12 July 2011, for an Order that it be added as the Fourth Defendant in this claim, and for consequential orders and amendments that would follow such order.
   
2. The Second Defendant is the registered owner of the fixed – term estate in parcel no. 192-010-230 ("PN 230"). PN 230 is situated at Ranadi in Honiara on Guadalcanal.
   
3. Ranadi Auto Spares Limited was granted a fixed-term estate in Parcel No. 192-010-207 ("PN 207") on 1 January 1995. This fixed –term estate was transferred to the Second Defendant for valuable consideration on 28 October 2003.
   
4. On 27th June 2008, the Second Defendant sold PN Nos. 230 and 207 to SBL. This sale is subject to reservations, exceptions and conditions contained in the Fixed-Term Estate Register and the Grant of Fixed-Term Estate by the Commissioner of Lands pursuant to the Land and Titles Act (Cap.133)
   
5. The transfer of the Fixed-Term Estate in PN 207 to SBL has yet to be signed by the Registrar of Titles. While the Claimant has not lodged any caveat over this Estate, SBL has lodged its caveat over it on 20 September 2008.
   
6. On 27 May 2005, the Second Defendant signed an agreement with the Claimant to loan $150,000.00. The Second Defendant pledged PN 230 as security for that loan, and subsequently made further loans from the Claimant. The First and Second Defendants now owe the Claimant the sum of $650,000.00 on these loans to date.
   
7. The Claimant lodged a caveat over fixed-term estate PN 230 on 14 May 2008. This caveat was registered on 19 June 2008 and still remains in force.
   
8. The Claimant filed this claim against the First and Second Defendants on 19 August 2008. It was subsequently amended on 15 October 2008. The Claimant seeks an order among others, that "2. Order freezing (freezing order) the sale of the property described as parcel No. 192-010-230 and the adjacent property both situated at Ranadi in Honiara pending further orders or the final determination of this claim; 3. Order that the First and Second Defendants pay the sum of $650,000.00 being the total monies owing to the Claimant to date together with interest to be determined from the date of the judgment to the Claimant; and 4. Alternatively, an order that the property described as Parcel No. 192-010-230 and the adjacent property both situated at Ranadi be sold by public tender with the total amount owing to the Claimant to be deducted from the total sales proceeds". It is clear that the adjacent property [1] mentioned in order 2 in this claim is PN 207.
   
9. The Claimant obtained interim orders against the First and Second Defendants in this court on 6 November 2008. These orders, among others, are that: "2. An order freezing the sale of the two properties described as parcels Nos: 192-010-230 and 192-010-207 both situated at Ranadi, Honiara, Solomon Islands until the final determination of this suit."
   
10. The court has power to add parties to a proceeding as provided under Chapter 3 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (The Rules). For purposes of this claim, the relevant rules would be 3.5 and 3.6 of the Rules. These rules are in the following terms:
    

"3.5 The court may order that a person becomes a party to a proceeding if the person's presence as a party is necessary to enable the court to make a decision fairly and effectively in the proceeding.

3.6 A person affected by a proceeding may apply to the court for an order that the person be made a party to the proceeding."

11. The Claimant knew that SBL had signed a purchase contract with the Second Defendant in relation to PN Number 207 and 230[2]. However, SBL had not been included as a party in the proceeding.
    
12. In this Application, SBL also seeks an order to discharge the order freezing the sale of PN 207 by Izuako J for non-compliance with the Rules. That is to say that in her application for the interim orders, the Claimant has not given proper description of PN 207 and its value [3]; failed to include the name of the SBL and how SBL may be affected by the freezing Order [4]; failed to explain how to preserve PNS 207 and 230[5]; gave no reason for not issuing any notice to SBL as owner PN 207[6]; no usual undertaking as to damages was given[7]; the Claimant's sworn statements in support of the Application did not adequately explain why dealing with PN 207 by SBL should be restrained[8]; and the freezing order did not fix a date on which the Claimant was to report back to the court on what has been done under the freezing order [9].
    
13. The Claimant has two main objectives in this claim. The first is to obtain judgment and an order against the Defendants to pay the $650,000.00 still owning to her. The second is to obtain an order to sell PNs 207 and 230 by public tender to settle this money if the Defendants do not pay up. This would affect SBL as it holds equitable interests in both properties. It's presence in the claim is necessary to enable the court to make a fair and effectively decision in this proceeding. That would also save time and costs as all issues would be decided in a single proceeding.
    
14. A party may apply for an interlocutory order during a proceeding. But the application must name as Defendant anyone whose interests are affected by the order sought[10]. However, a failure to comply with the Rules merely amount to an irregularity and does not make the order a nullity[11]. It is evident that the Claimant did not comply with the Rules, as pointed out by BSL in this application. As a consequence, this court may exercise its discretion in accordance with Rule 1.16, and the evidence adduced by the SBL in this application to set aside part of the interim order granted by Justice Izuako on 31 October 2008.
15. The court will allow SBL's application and grant the relevant orders sought.
    

ORDER

1. SBL be added as a Fourth Defendant in this claim.
   
2. Freezing Order for the sale of PN 207 be discharged.
   
3. The Claimant file and serve an amended claim and statement of case particularising any claim which the Claimant has against SBL (including any claim to any right, title or interest in or to the fixed term estate in Parcel Number 192-010-207) by 4.00pm on 24 August 2011.
   
4. Orders sought in paragraphs 6 to 10 in this application are granted.
   

THE COURT

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^[1] See sworn statement of the Claimant filed on 31 October 2008.
^[2] Claimant’s Solicitor’s letter to BSL of 9/7/2008 Exh HF9 and Para 7 of Amended of 15 October 2008
^[3] Rule 7.18 (a) (i)
^[4] Rule 7.18 (b) as readmit Rule 7.14;
^[5] Rule 7.18 (d) (ii)
^[6] Rule 7.18 (d) iii
^[7] Rule 7.18 (e)
^[8] Rule 7.19 (a) ii
^[9] Rule 7.21 (a)
^[10] Rule 2.9 (b)
^[11] Rule 1.16