Solomon Imports & Exports Ltd v Bingtang SI Mining Ltd [2016] SBHC 105; HCSI-CC 229 of 2016 (29 June 2016)

IN THE HIGH COURT
OF SOLOMON ISLANDS Civil Case No. 229 of 2016

Civil Jurisdiction

BETWEEN: SOLOMON IMPORTS & EXPORTS LTD Claimant

-V-

BINGTANG SI MINING LTD Defendant

E. Toifai for the Claimant
W. Togamae for Defendant

Date of Hearing: 29 June 2016
Date of Decision: 29 June 2016

REASONS FOR DECISION AND ORDERS

Brown J.

Following a short hearing on the 9^th June, when by consent the application for injunctive orders was stood over to today for inter parte hearing, the application came back before me when Mr. Toifai for the claimant filed in court a category B Statement of Claim, identical in terms with that statement in support of injunctive orders but with the inclusion of a paragraph claiming an agreement for the storage and berthing of vessels at $3,000 per vessel for one day. No particulars of the agreement have been provided, whether oral or in writing for instance.

Mr Togamae for the defendant has indicated he has instructions to defend if settlement cannot be effected. The claim for interlocutory orders will be dealt with today, and the material filed received upon by Mr. Toifai.

The claim is by nature in the form of an application for a Mareva injunction since it claims to restrain the two large and two tug boats currently off the claimant’s property at Ranadi, where they have been berthed and anchored. The claimant has given invoices to the defendant company, with a registered office at Hyundai Building, Honiara claiming the sum of $2,811,600.00. In support of the application the claimant relies on the sworn statement of John Parsad who has annexed evidence of the claimant’s ownership of the parcel of land at Ranadi. No agreement was originally pleaded or exhibited. This is not relevant when considering this urgent application. Rather there is only the evidence of the invoices.

The undertaking as to damages states that in the event that the defendant wins at the end, the claimant will meet the usual costs incurred by the defendant. There is not drafted as a “money claim”, so that there is no basis for this court to relate the undertaking to any claim where the defendant may win at the end. It is solely a claim to seize the vessels.

1. No particular of the basis for the invoices, are provided by way of liquidated claim, or the basis of any agreement by the defendant to meet the claimed invoices.
2. There would appear to be matters in the claimants’ knowledge concerning his arrangement with the defendant not fully and frankly disclosed to the court.
3. While the vessels are claimed to be the assets of the defendant, the undertaking as to damages is deficient if it purports to cover the loss to the defendant should the vessels be unable to work, or the ships be owned by a 3^rd party.
4. There is no evidence of an unacceptable risk of non-recovery of any judgment in an action properly commenced against the defendant.
5. The undertaking as to damages is wholly unacceptable when such large assets, the vessels are concerned and appears to relate only to costs of the proceeding, not loss to the company were the orders to be given. This court has discretion to award costs, by order. An document of this type cannot affect the Courts discretion to award costs in any proceedings.
6. There is no evidence that the defendant is likely to deal with the vessels so as to defeat any properly awarded judgment in proceedings properly instituted ^[1]
   

The application for interlocutory order is refused.

That claim is dismissed.

The Category B Claim shall proceed in accordance with the Rules and pursuant to my usual directions.

The costs of the Appearance of Mr. Togamae to interlocutory application shall be paid by the claimant.

BROWN J

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^[1] See Third Chandris Company v Uni Marine SA (1979) QB 645; [1979] 2ALL ER 972.