Brown v New World Ltd [2013] SBHC 191; HCSI-CC 66 of 2013 (6 December 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

Civil Case 66 of 2013

BETWEEN:

JOHN BROWN, MOCKSON JEPE, HAYLISH ALICK and JOHN PITU (Determined representatives of Irureqo clan)
Claimants

AND:

NEW WORLD LIMITED
Defendant

Mr. G. Suri for the Claimants/Applicants.
Mr. M. Tagini for the Defendant/Respondent.

Date of hearing: 12th November 2013
Date of Judgment: 6th December 2013

RULING

Apaniai, PJ:

1. This is an application by the Claimants, John Brown, Mockson Jepe, Haylish Alick and John Pitu, (representing the Irureqo clan ("Applicants"), for summary judgment on the ground that the Defendant, New World Ltd ("Respondent"), has no viable defence to the claim.
   
2. The Applicants have filed a category B claim on 8 March 2013 claiming royalty payments in the sum of $341,045.51, block completion fee in the sum of $5,974.65 and log wastage penalty in the sum of $191,619.05. The sum claimed as log wastage penalty is said to be calculated at the rate of 200% on royalty or "such amount to be assessed".
   
3. In addition to the amounts claimed referred to in paragraph 2, the Applicants have also claimed exemplary or aggravated damages to be assessed. The claim for exemplary or aggravated damages is based on failure to rehabilitate or maintain the soil, streams and roads and failure to decommission the log pond as well as for breach of contract.
   
4. The Defendant has filed a response on 14 March 2013 and a defence on 24 April 2013. This application was filed on 22 April 2013 which is after the filing of the response but before the defence was filed.
   
5. There is nothing wrong with the Applicants filing this application before the filing of the defence. Rule 9.57 of the Solomon Island Courts (Civil Procedure) Rules 2007 ("Rules") allows a claimant to seek summary judgment after a response or defence has been filed if he believes that the defendant does not have any real prospect of defending the claim. After all, the purpose of the summary procedure under Rule 9.57 is to provide an early judgment in a case in which the defendant has no hope of success and any defence he raises will merely have the effect of delaying judgment. The Rule enables the court to grant summary judgment at an interlocutory stage without the delay and expense of a full trial if it is shown that no trial is necessary.
   
6. Where an application is made for summary judgment, the task of the court is to determine whether there ought to be a trial. To defeat the application the defendant does not have to show a good defence. He only need to show an arguable defence or some other reason why there ought to be a trial. This means that as long as there is an issue for investigation, summary judgment will not be granted[1]. As stated by McPherson JA in Allison v Medlin [2] at p. 12:-
   

"The jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the court is satisfied that it has the requisite material and necessary assistance from the parties to reach a definite and certain conclusion."

7. So the question in this application is whether or not there is an arguable defence to this claim. Defendant had filed its defence on 24 April 2013. Although the defence was filed late, the court cannot simply ignore the contents of the late defence. It must use the contents of the late defence to assess whether or not the Defendant has an arguable defence[3]. If an arguable defence is shown by the late defence, that is a good reason for proceeding to trial, instead of granting summary judgment[4].
   

Royalty and block completion fee.

8. In its late defence, the Defendant has admitted in paragraph 4 of the defence that it had not paid any royalties and block completion fees to the Claimant. The Defendant has also not denied the amount of royalties, $341,045.51 nor the amount of the block completion fee of $5,974.65, claimed by the Claimants. It simply said that the reason for not paying the royalties and the block completion fees was because the Claimants have 'stolen" its properties which are valued at $647,018.06 and it intends to offset the amount of royalties and block completion fees against the value of its stolen properties. Clearly, this is not a defence for it does not deny liability for the royalties or the block completion fees. All that the defence amounts to is a setoff. Since the Defendant has not denied liability for the outstanding royalties and block completion fees, summary judgment should be entered for the Claimant in the sum of $341,045.51 for royalties due and unpaid as well as $5,974.65 for block completion fees as claimed.
   

Log wastage penalty.

9. In paragraph 8 of their claim, the Claimants have claimed log wastage penalty in the sum of $191,619.05. This represents 200% of the royalties payable on the wasted logs which is said to be 18 logs with a volume of 69.926 cubic meters. The price of the 69.926 cubic meters is said to be USD93.90 . In paragraph 5 of the defence, the Defendant merely said that the "calculated price of the logs is misconceived". In other words, the Defendant does not deny liability for log wastage. What it denies is the correctness or accuracy of the calculation of the amount of penalties. Since liability is not denied, the Claimants are entitled to judgment but with damages to be assessed.
   

Aggravated or exemplary damages.

10. The Claimants have also claimed exemplary or aggravated damages on the basis of failure to rehabilitate or maintain the soil, streams and roads, for failure to decommission the log pond and for breach of contract.
    
11. This is a contentious issue which I think cannot attract summary judgment. Whether or not the Claimants are entitled to claim such type of damages is a matter that should be investigated and argued at trial.
    

Orders.

12. The orders of the court in this application are as follows:-
    

[1] Judgment is granted in respect of the claim for unpaid royalties in the sum of $341,045.51.

[2] Judgment is granted in respect of the claim for block completion fees in the sum of $5,974.65.

[3] Judgment is granted in respect of the claim for log wastage in such amount to be assessed.

[4] The application for summary judgment for aggravated or exemplary damages is refused.

[5] Costs in the cause.

THE COURT

James Apaniai
Puisne Judge

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^[1] Miles v Bull [1969] 1 QB 258.
^[2] Allison v Medlin Civil Appeal no. 7 of 1996; see also Golden Springs Ltd v Paia [1999] SBCA 11; CA-CAC 19 of 1998 (24 November 1999).
^[3] Lethy v Luluku [1998] SBHC 13; HC-CC 104 of 1996 (23 February 1998).
^[4] Te’eu v Sanau [2001] SBHC 74; HC-CC 090 of 2001 (16 October 2001).