Samlimsan v Toronto Connection (SI) Ltd [2012] SBHC 91; HCSI-CC 442 of 2011 (21 August 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Civil Case No. 442 of 2011.

BETWEEN:

SAMLIMSAN (SI) LIMITED
Claimant.

AND:

TORONTO CONNECTION (SI) LIMITED
First Defendant.

AND:

GREAT WOODS (SI) LIMITED
Second Defendant.

Date of Hearing: 22nd July, 2012.

Date of Ruling: 21st August, 2012.

Mr. Pitakaka for the Claimant.
Mr. Kingmele for the second Defendant.
No one for the first Defendant.

	RULING.
1.	Faukona J: An application for freezing orders pursuant to Rules 7.14 – 7.15 was filed by the Claimant on 29th February, 2012, supported by a sworn statement of Mr. Pau Kiew Hu, and an undertaking as to damages filed on the same date.
2.	The Claimant seeks the following orders,
	(1)	A freezing orders that the first and second Defendants and any other person be restrained from moving the equipment described as 1 unit bulldozer Komatsu 70 LE 60076 valued at SBD$840,000.00 and 1 unit bulldozer Komatsu 70 LE J10392 valued at SBD$840,000.00.
	(2)	An order restraining first and second Defendant from removing those two properties from Solomon Islands.
	(3)	Any other orders deem fit by the Court.
3	The purpose of freezing order is to prevent a defendant from disposing of his actual assets so as to frustrate the process of the Court by depriving the plaintiff of the fruits of any judgment obtaining in the action[1]. Such orders can only be granted in the circumstances such that there is danger of the defendant absconding, or a danger of his assets being removed out of jurisdiction or disposed of within the jurisdiction..., and the danger that a successful plaintiff will not able to have his judgment satisfied[2].
4.	The Claimant's argument embraces the fact that it has triable issue or a good and arguable case has been established. It further argues that the issue of title or ownership of the assets is not disputed because there was admission by the second Defendant that he knew of the meeting held on 12th September, 2011, which Mr Wong of the first Defendant, Mr Jong of the second Defendant and Mr Pau Kiew Hu of the Claimant met in Honiara at second Defendant's office and agreed that Mr Wong would sale all the machineries owned by the first Defendant and the Claimant to the Second Defendant. The second Defendant will pay directly to the Claimant before 19th September, 2011, concerning the machineries being subject of this case. Neither Mr Wong nor Mr Jong paid anything to the Claimant.
5.	It is notable that the title of the assets is in issue. Lord Denning pronounced that only a person who has the title can part with the property. That being true, Mr Kingmele argues that the test for a good arguable case is in the case of Maritime Corporation V Trave and Co KG[3], where Mustill J concluded
		"I consider that the right course is to adopt the test of a good arguable case, in the sense of a case which more than a barely capable of serious argument, and yet not necessarily one of the judge considers would have better than 50% chance of success".
6.	Further evidence adduce to prove title to the assets which Mr. Pitakaka refer to the bill of lading and custom entry. This is to affirm ownership of the machines which were brought from outside into Solomon Islands.
7.	On the other hand Mr. Kingmele argues that the bill of lading carries no description of exactly which equipment was owned by the Claimant. It does not include any distinguishable mark. Without description the Court cannot determine that the machines were truly owned by the Claimant.
8.	From material evidence and submissions the issue of ownership of the machineries are good arguable case which has to be determined as a substantive issue by the Court.
9.	Having determined that the Claimant has an arguable case the next step is to determine whether the prospective judgment will remain whole or partly unsatisfied. Meaning the Claimant needs to show there is danger that assets will be dealt with in a way preventing the Claimant from recovering any judgment.
10.	At this juncture Mr. Kingmele opposes the application that the Claimant fail to adhere to Rules 7.13 – 7.15. I have read the sworn statement of Mr Pau Kiew. In deed I find there is nothing in the sworn statement of Mr Pau as a material evidence to suggest that the second Defendant is about to abscond, or that the assets are being removed from Solomon Islands as required by Rule 7:15, or likely to be removed from Solomon Islands or deal with under Rule 7.17 or disposed them so that there is danger that the Claimant if successful will not have a judgment satisfied.
11.	Being consumed by the worry about the conduct of the second Defendant and fear the machines would be sold is not sufficient ground to come to Court to seek freezing orders. There must be tangible material evidence, or belief on reasonable ground that the machines will be sold or dispose of or that the second Defendant will abscond. Rule 7.19 in particular (a) specifically require those must be included in the sworn statement. They were not included in Mr Pau's sworn statement.
12.	I am not satisfied on obvious reason that the Claimant has failed to address those issues, therefore I must dismiss the application with costs.
	Order of Court.
	1.	Application refused and dismissed.
	2.	The Claimant is to pay costs of this application to the second Defendant.
	The Court.

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^[1] Jackson v Sterling Industries Limited [1987] HCA 23; [1987] 162 CLR 612 at 625.
^[2] Ibid at para 3 first part.
^[3] [1984] 1 411 ER 398 at 404.