Olsson v Kimberly [2016] SBHC 155; HCSI-CC 417 of 2006 (8 September 2016)

IN THE HIGH COURT
OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

WILLIAM FREDERICK OLSSON -
First Enforcement Creditor

AND:

GLORIA ELIZABETH OLSSON

Second Enforcement Creditor

AND

SOLOMON TIME LIMITED
Enforcement Debtor (in liquidation)

AND

PAMELA KIMBERLY

Respondent to Enforcement Proceedings

Date of Hearing: 8 September 2016
Date of Judgment: 8 September 2016

Mr. G. Suri for the enforcement creditors
Mr. K. Levi for one of the parties sought to be joined.
Ms. P. Kimberly in person.

Application for renewal of enforcement of judgment orders and to join parties.

Reasons Extempore.

Brown J:

On the 15^th April Mr. Suri made application for leave to renew his application for renewal of enforcement; leave was given in the absence of the respondents on that day. I regret I have no record of the terms of that leave but Mr. Kelly Levi of counsel for Tavanipupu Island Resort Limited and Mrs. Pamela Kimberly come to court today on the hearing of that application for renewal of enforcement and a second application for joinder of Tavanipupu Island Resort Limited and Island Gold Limited in these proceedings.

The proceedings, since the Court of Appeal decision on the 25 October 2012 setting aside the earlier High Court orders for joinder of these parties, has had a checkered history for Mr. Suri points to a number of mentions and a date set for judgment day, before my brother judge. Yet it would seem the application remains for consideration before me today. The grant of leave should not be seen as the grant of the application, in the absence of the respondent parties, when the leave was given on a motion day, but rather leave to argue the question.

In any event, Mr. Suri has argued cogently why the application for renewal of enforcement should be allowed.

His first point relates to the absence of argument in the Court of Appeal that by R. 21.13 of the High Court Civil Rules, a filing in court had occurred within the 12 month period allowed for continuation of proceeding pursuant to the judgment given 6^th November 2009.

So the fact that application was with the Registry with-in the time allowed should revive the right for renewal, in the absence of any order or direction by the Court of Appeal.

This argument is attractive, since the Court of Appeal did address the point. –
“The rule in this matter is rule 21.13 which provides that an application for renewal must be made before the order ends. That obviously was not done in this matter”.

The Rule provides for any application to be dealt with without a hearing and in the absence of the parties.

The fact remains there was no renewal and the Court of Appeal, while speaking of the application may be seen to be addressing the necessary incident of the Rule, the actual address by the court to the application. It is not necessary to deal with this point further for without the grant to enforce, envisaged by R. 21.14, the act of filing cannot be argued to be tantamount to a grant, necessarily given by a judge, of extension to afford the claimant any right.

The absence of the grant is fatal to Mr. Suri’s argument, for the original enforcement order lapsed on the 7 July 2011, one year after it was made. On the 7 December Chetwynd J granted leave to continue enforcement. The Court of Appeal set aside that order since the High Court was without power to grant leave beyond the 12 month period allowed by the Rules. For whatever reason, Mr. Suri sought to suggest why from the Bar table No renewal required by R.21.14 was given.

The second argument of Mr. Suri goes to the issue about schedule 5 of the Companies (Insolvency & Receivership) Act. The Court of Appeal made plain that any application could only be brought by fresh proceedings. The phrase fresh proceeding has implicit the requirement for fresh material, lacking in this case.

In any event as Mr. Kelly say, enforcement proceeding are now statute barred. Section 6 (11) provides for a limitation period of 6 years from the date of judgment. The period has expired.
Where a set-off or counter-claim is sought, for the creditors are seeking to join these two parties for perhaps these reasons, the same limitation period applies so precluding such application. [Rule 16(1)]

Fresh proceedings are statute barred

Orders.
The applications to proceed to recovery and for joinder are refused.
The proceeding are dismissed pursuant to R 9.75 as showing no cause of action.
The costs of today shall be paid by the applicant.

BROWN J