Barlet v Hai Way International Ltd [2013] SBHC 41; HCSI-CC 244 of 2011 (1 May 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 244 of 2011

BETWEEN:

ALEX BARTLETT
Claimant

AND:

HAI WAY INTERNATIONAL LIMITED
First Defendant

AND:

LEE KWOK KUEN COMPANY LIMITED
Second Defendant

AND:

ATTORNEY GENERAL
Third Defendant
(For Commissioner of Lands and Registrar of Titles)

Date of Hearing : 18th February 2013
Date of Ruling : 1st May 2013

Mr. Keniapisia for Claimant
Mr. Faitoa for First Defendant
Mr. Getu for the Second Defendant

RULING

[1] This is an application filed by the Second Defendant on 29 June 2012 for the following:

[i] A declaration that any reliance by the Claimant, his Servants or Agents on the Memorandum of Understanding dated 28 February 2007 is void for uncertainty and is unenforceable.

[ii] A declaration that the contract entered into by Hai Way International Company Limited and Lee Kwok Kuen Company Limited dated 24 November 2005 was first in time and clause 12 of that agreement dated 24 November 2005 prevails over whatever, however, wheresoever, equitable interests if any that the Claimant may have over the said PN: 192-007-192.

[iii] The inclusion of the Attorney-General of Solomon Islands as the 3rd Defendant, does not in any way alter the right of the Second Defendant as the registered owner of PN: 192-007-192 on the basis that the Claimant has failed to demonstrate that the 3rd Defendant, servants or agents have through their actions breached the provisions of the Land and Titles Act (Cap. 133) in the dealing with the subject property.

[iv] The surrender of PN: 192-007-192 by the Claimant to the 3rd Defendant, especially the Commissioner of Lands [COL], is admission of his questionable dealing with the subject property by placing duress on Ms Kuo Fung Chi, the Resident Directors of Hai Way International Company Limited, the First Defendant in this matter, through the Claimant's servants and/or agents.

[v] Consequently, the applicant prays for declaration that the subject property in Fixed Term Estate (FTE) in PN 192-007-192 is owned by Lee Kwok Kuen Company Limited and as such only employees, agents or servants of Lee Kwok Kuen Company Limited are entitled to be upon the said land. Any other persons not Lee Kwok Kuen Company Limited's employees, servants or agents found upon the land shall be declared as trespassers, and whatever properties brought onto the PN 192-007-192 by such Trespassers not the properties of Lee Kwok Kuen Company Limited are to be removed forthwith.

[vi] Costs

[vii] Other orders the court deems just.

[2] This case came before this court on an application for strike out on 30 November 2011. The court dismissed the application. The Second Defendant then appealed to the Court of Appeal which dismissed the appeal. That court said that the claim needed to be amended to ensure that all relevant matters are fully and properly litigated. On 29 August 2012 Claimant filed an amended claim. The First Defendant had filed its defence on 27 September 2012. The Second Defendant has yet to file defence.

The Claimant opposed this application, but the First Defendant supports it. This court has considered the parties' oral submissions, the statement of the case for the application and Sworn Statements of the parties. There important issues to be determined in the amended claim. There are remaining steps to be taken before the case is ready for trial. The Claimant has a case to put before the court for determination.

This court is of the view that this application should be dismissed with costs and the case be expedited for trial.

THE COURT