Maure v Mega Enterprises Ltd [2013] SBHC 161; HCSI CC 36 of 2011 (6 December 2013)

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

Civil Case No. 36 of 2011.

Between:

DAVID MAURE
First Claimant

And:

MEGA ENTERPRISE LIMITED
Second Claimant

And:

LUKE ETA
First Defendant
(Trading under the firm name or style of West
Barora Forest Resources Development)

And:

SUNWAY (SI) LIMITED
Second Defendant

And:

COMMISSIONER OF FOREST RESOURCES
Third Defendant.

Date of Hearing: 29th November, 2013.
Date of Decision: 6th December, 2013.

Mr S. Tabo for First and Second Claimants.
Mr M. Tagini for the First and Second Defendants.

DECISION ON ASSESSMENT OF DAMAGES.

Faukona J: This is an application by the First and Second Defendants for assessment of damages it was filed on 7th May, 2013.

2. On 17th February, 2011, the Claimants obtained restraining orders against the First and Second Defendants with the usual undertaking as to damages. On 2nd March, 2011, the Claimant's application for interim relief was heard inter-parte. At the end thereof, the Court dismissed the application with costs. On 13th April 2013, the Claimants filed notice for discontinuance against all the Defendants.

3. The issue is whether the First and Second Defendants are eligible for loss of business earnings suffered for a period of nine (9) days, the course of the interim injunction.

Under taking as to damages:

4. 2-1 Schedule 4 of the Rules defines "usual undertaking as to damages" means "that the party giving the undertaking undertakes that in the event that the party is ultimately successful in the proceedings or it is otherwise shown that the order to which the undertaking relates ought not to have been made, then the given of the undertaking shall be liable (without further orders) to pay such damages as any other party or person may have suffered as a result of the order being made, such damages to be assessed if not agreed".

5. The submissions by Mr Tagini is that, from the date of the restraining orders to when they were dismissed, the Second Defendant stopped its logging operation for nine (9) days of which it suffered financial losses. The losses were assessed by Yam and Company Chattered Accountant see Exh. YE3 attached to sworn statement of Yu Yuebo filed on 7th May, 2013. The assessment was calculated based on a formulae; Average production X Loss on days X Average price. The total loss on production for nine (9) days is US$63,024.45.

6. Mr Tabo submits this issue has never been litigated and has not received instructions in that regard. Hence a sworn statement was filed in response and deposed by Fox Pasa and filed on 25th November, 2013. Mr Tabo further submits that they have never obtained instructions that the restraining orders had been dismissed. Information adduced in Court was never in their company file. For those reasons, Mr Tabo seeks adjournment so that instructions are sought. Mr Tagini opposes any adjournment.

7. The sworn statement of Mr Pasa furthers states that the costs incurred were consequence to the restraining orders obtained. The application was filed after the notice of discontinuance was filed on 13th April, 2012. Costs in discontinuing of the matter and losses of business are two separate issues.

8. It is accepted that costs of the hearings are different from loss of business earnings. There is no dispute that the Second Defendant incurred loss of business earnings when the interim restraining orders were in place for nine (9) days.

9. I noted Justice Goldsbrough heard the application for restraining order inter-parte on 2nd March, 2011. On 9th May 2011, the Registrar of the High Court delivered the Ruling dismissing the application for interim relief. From 9th May 2011, to 13th April 2012 (the date the proceedings discontinued) nothing was done by the Second Defendant, in particular filing this application for assessment of damages. Perhaps he was expecting finality of the substantive proceedings before application for assessment of damages is filed. It could be viewed as late against Claimants for loss of business earnings. In my respectable view, whether a new case is filed, there is no difference. The parties will be the same except for the Third Defendant (Commissioner of Forest).

10. The core of this application is that it allows the Claimants opportunity to re-consider that restraining orders they obtained are secured by an undertaking which themselves submit to abide by. Simply, they are willing to pay the Second Defendant's loss of earning should they lose the case at the end of the day. Subsequently they lost. They cannot hide behind their act of discontinuing the case and escape their legal obligations. They have to meet it now, or even later. Should they disagree, they have the liberty to challenge. A copy of the ruling dismissing the restraining orders was filed and served. There is no excuse that they don't have a copy. Opportunity to challenge the application is at hand, and to seek adjournment for further instructions is not a tactic I would prefer to accept.

Orders:

1. Order for loss of business earnings against First and Second Claimant to be assessed in the sum of US$63,024.45, and be payable to the Second Defendant.

2. Cost of this hearing is payable to the Second Defendant.

The Court.