Kuo Fung Chi v Premium Products Limited [2012] SBHC 117; HCSI-CC 161 of 2004 (8 October 2012)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 161 of 2004

BETWEEN:

KUO FUNG CHI
Claimant

AND:

PREMIUM PRODUCTS LIMITED
Defendant

J Iroga for Claimant
M Pitakaka for Defendant

Ruling : 8 October 2012

RULING

Mwanesalua J

1. This is an application filed on 18 October 2010 by the Claimant ("Applicant") for orders that: (1) the order striking out the claim dated 27 May 2011 be set aside and the claim be reinstated; (2) such further orders as the court thinks fit to make in the circumstances and costs.
   
2. The brief facts of this claim are these: The Applicant engaged her first solicitor to deal with the claim in 2004. That Solicitor filed the claim on 27 April 2004. The claim was for specific performance of a contract; An order that the Defendant ("Respondent") execute the transfer of the fixed term estates in Parcel Nos. 192-010-71 and 192-010-72 to the Applicant; damages limited to $100,000.00; interest and costs.
   
3. The Respondent opposed the application. It contends that the order striking out the claim was final and can merely be reinstated by way of an appeal, as there was no mutual consent between the parties for an appeal. The Respondent went on to contend that the claim was struck out because the Applicant took no step to advance the proceeding for 12 months under rule 9.72 (d) of the Rules. That there was delay in concluding the proceeding.
   
4. It is not disputed by the Applicant that there was delay in this claim. I have read the materials on the claim and consider that it would not be fair to lay the entire blame on the Applicant. The Applicant engaged her first Solicitor to deal with her claim in 2004. That Solicitor filed the claim on 27 April 2004. The Respondent filed its defence on 17 June 2004. The Applicant then sought further and better particulars of the defence from the respondent on 18 June 2004. There was no response from the Respondent. On 30 March 2005, the Applicant filed notice of change of Solicitor. The Applicant's second solicitor took no further steps to move the claim forward for 15 months. As a result, the Applicant engaged a third Solicitor, Watts and Associate, which gave notice of change of Solicitor on 27 July 2006. On 11 September 2007, Watts and Associate again sought further and better particulars of defence from the Respondent. On 13 November 2008, the claim was adjourned to 27 November 2008 to enable the Defendant to provide better particulars of its defence. By 27 November 2008, the Respondent had failed to do so. The claim progressed slowly in 2009 due to unavailability of Mr. Watts who was dealing with the claim. Eventually there was no step taken to move the claim forward in 2010. It because apparent then that Mr. Watts fell ill and took no steps at all to deal with the claim.
   
5. The Applicant endeavoured to change Solicitor by seeking assistance from the Public Solicitors Office. She was advised to see a private solicitor. She saw a solicitor but she could not afford legal fees as she had insufficient finds at the time. So she decided to wait until Mr. Watts got better to continue with her claim. In early 2011, she enquired with the office of the Registrar of the High Court about the status of her claim. She was informed that her claim had not been struck out. On 21 April 2011, Mr. Watts wrote to the Registrar's office to re-list the claim for further direction. He explained that there was no step taken on the claim for the last two years due to his illness. The claim was set down for mention on 26 may 2011. However, on 25 May 2011, Mr. Watts fell ill again. On 26 May 2011 he visited the Point Cruz Medical Centre and was given 7 days sick leave and therefore he did not appear in court on 26 May 2011. The Applicant went to court that day and produced a copy of Mr. Watt's medical certificate to the court via the judge's associate with the purpose of adjourning the claim to a day on which Mr. Watts would be well to attend to the claim in court. However, on 27 May 2011, the court noted that Mr. Watts had not attended court on 26 May 2011 and so struck out the case under rule 9.72 of the Rules. It is evident from the evidence set forth in this paragraph that the Respondent significantly contributed to the delay in this claim as well, by failing to file better particulars of its defence in court.
   
6. Mr. Watts was obviously sick on 26 May 2011 as shown by the medical certificate dated 26 May 2011 and Dr. Obed Alemaena's correspondence of 27 May 2011. These documents were not considered by the court when the claim was struck out. It does not appear right that an innocent client's claim was struck out because a solicitor having carriage of the claim was ill and therefore unable to attend court with the client.
   

The court would exercise its inherent jurisdiction to set aside the order of 27 May 2011 to strike out the claim.

Order: 1. Application allowed.
2. Civil Claim No. 161 of 2004 be reinstated.
3. Parties to bear their own costs.
4. Claim to be mention in court on 18 October 2012 at 9:30am.

THE COURT