In re Application of DNS & Partners Law Firm [2014] SBHC 135; HCSI-CC 72 of 2009 (10 November 2014)

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

CIVIL CASE NO. 72 OF 2009.

BETWEEN:

DAVID AND MARILYN GANIFIRI
Judgment Creditor

AND:

MALAITA DEVELOPMENT AUTHORITY
Judgment Debtor

AND:

DNS & PARTNERS LAW FIRM
Applicant

Hearing Date: 6th October 2014
Date of Ruling: 10th November 2014

Mr G. Fa'aitoa for the Claimant, Judgment Creditor
Mr M. Tagini for the Defendant, Judgment Debtor
Mr D. Marahare for Applicant, previously for Judgment Creditor

RULING ON APPLICATION FOR LEAVE FOR PAYMENT INTO COURT

Faukona J: The application for leave to transfer or paid the amount of $84, 768.60 into Court was filed on 12th November 2013. The Applicant also seeks an order authorising itself to deduct its legal fees in the sum of $31,450.00 from the above sum, leaving the balance of $53,314.60 payable into Court.

2. Originally there was a Civil litigation between the Judgment Creditor and the Judgment debtor. On 22nd March 2011 the parties signed a consent order of which was perfected by the Court on the same date. Order 4 specifically stated that the debtor to pay the creditor a judgment sum of $169,537.014 whereby the amount of $107,182.50 to be paid by the debtor within 90 days from 22nd March 2011 and the balance of $62,254.64 to be paid on equal monthly instalments over 12 months period.

3. On 6th September 2012, the sum of $84,768.60 was paid by the agents of the Judgment debtor and which amount is still in the possession of the Application. On the same date an order for sale of property PN 171-001-343 at Auki was granted. A notice for sale by tender was printed in Solomon Star on 21st November 2012. Again the property was retendered at the end of February 2013. After the property was retendered there was no action done since then. Even the amount of $22,927.86 as part of full amount outstanding as ordered, was not paid, in fact no any evidence to verify so.

4. The significant point of all is, whilst the legal processes are still available to resort to, the Judgment Creditors terminated the service of their Solicitor per Mr Ganifiri's letter dated 10th October 2012, a month after the amount was paid. Since then the money is still in the custody of the Applicants (previous solicitors). Premise on that very reason that the Applicant applies to have monies paid into Court for Safe Custody until the case is finally done.

5. Mr. Fa'aitoa objected to any transfer of money into Court. In fact, as he submitted, the Applicant had never concurred with the custody of the payment by the Applicant. That was contrary to the instructions by the Judgment Creditors who preferred that the sum of $107,182.50 be paid within 90 days as ordered by Court. What may have meant is that any payment less than that is unacceptable? Supporting his contention was a letter written by Mr. Ganifiri to the Applicant on 26th August 2011, that no commitment should be made with MDA until there was an acceptable outcome of their discussions in which he would affirm acceptance in due course.

6. In spite of the letter of instructions the Counsel representing Judgment Creditors accepted $84,768.60 on 6th September 2012 in defiance of the amount contain in the orders. There can be no doubt and a non-issue that this case concern money claim. However, any amount payable which falls short of the Court order, before it can be accepted and retained, must have the consent of the Judgment Creditor. Should he accept it, that should offset part of the money order and enforcement be executed on the remaining portion. In this case, the consent orders were executed on 22nd March 2011. Payment was made on 6th September 2012, after one year and six months in defiance of 90 days grace period. It is normal in human feeling that after waited for far too long, in defiance of Court orders, the Judgment Creditor would like the full amount be paid at once. This has not been materialised even after order for sale of property was granted on 6th September 2012.

7. I noted the services of the Applicant had been terminated and should have been paid his legal fees. The fact is that the amount of $84,768.60 is a mere offer. An offer which the Judgment Creditor did not accept; for two reasons, it was paid below in contravention of the orders, and secondly it was paid one year and six months late, also in contravention of the consent orders. And so the money has never been accepted and hence part of it cannot be deducted for legal costs. In reality the money is still belonging to Judgment Debtor and should return to it wholly in the same manner. Bills of costs incurred for legal representations and advices should properly be directed or billed to the Judgment Creditor to be paid personally.

8. With the assistant of the new legal advocate, it is anticipated he would carry on from where the case was left, that is conducting of the tender processes.

Orders:

1 Application for payment into Court of $84,768.60 as part payment of order 4 of 22nd March, 2011, refused and dismissed.

2. Order for deduction of legal fees from the above amount and payable to the Applicant refused and dismissed.

3. The amount of $84,768.60 is to be paid back to the Judgment Debtor as the amount had never been accepted.

4. Cost of this hearing is paid to the Judgment Creditor.

The Court.