Sosimo v Kwan [2016] SBHC 99; HCSI-CC 116 of 2012 (6 July 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTIONS

Civil Case No: 116 of 2012

BETWEEN:
SAMUEL SOSIMO AND IVY SOSIMO
Claimants

AND:
DENNIS KWAN AND DEBBY KWAN
First Defendants

AND:
KVA STORE LIMITED
Second Defendant

Civil Case No. 117 of 2012

BETWEEN:
SAMUEL SOSIMO AND IVY SOSIMO
Claimants

AND:
DENNIS KWAN AND JAMES KWAN
First Defendants

AND:
JK STORE LIMITED
Second Defendant

Date of Hearing: 1^st June 2016.
Date of Ruling: 6^th July 2016.

Mr. M. Tagini for Claimants in both cases.
Mrs. K. Ziru for All Defendants in both cases.

KENIAPISIA; PJ:

RULING ON AMENDED APPLICATION FOR ENFORCEMENT ORDERS

Introduction

1. This is the claimants’ application for enforcement orders as per the “amended application” filed 30/9/2015, in cc: 116/2012 and cc: 117/2012 (“the consolidated cases”). Claimants and Defendants mean claimants and defendants in the consolidated cases.
   

Background

2. Claimants filed Category C claims in the consolidated cases on 20/4/2012. Pleadings in the consolidated cases were completed on or around 5/7/2012. On 28/3/2014, a perfected order by Faukona J; struck out the defendants’ defence for non-compliance with an earlier “Unless Order” of the Court. On 5/9/2014, a perfected order by Faukona J, again struck out the defendants’ attempts to re-instate the defendants defences (earlier struck out on 28/3/2014). Claimants succeeded on their claims, because the defendants’ defences were struck out, in the consolidated cases.
   
3. On 16/12/2014, claimants filed an application for enforcement orders, intended to be heard by the Registrar. On 30/9/2015, claimants filed an “amended application” for enforcement orders. The “amended application” is referred to a judge, because new and additional orders/reliefs are being sought, that were different from the original application and hence different from the reliefs sought in the original claims.
   

Issue

4. The issue before me is whether I should entertain the new and additional reliefs in the “amended application” or should I confine the reliefs to the ones sought in the original application and hence the reliefs sought in the original claims.
   

Non-Contentious Reliefs

5. I deal first with the straight forward reliefs in the “amended application” that resembles the reliefs sought in the original application and hence the original claims. I should grant the three main reliefs sought in the consolidated cases original claims, as follows:
   
   • 5.1 Claimants are the Shareholders, Directors and Owners of the two defendant companies namely “JK Store Limited” and “KVA Store Limited”.
     
     • 5.2 Parties to take appropriate/necessary actions to implement orders in 5.1, in a concerted effort with the relevant government agency, the Registrar of Companies.
       
     • 5.3 Claimants are awarded costs of the “amended application”, plus costs in the substantive proceedings, on standard basis, to be taxed, if not agreed.
       

Contentious Reliefs

6. The contentious new reliefs sought in the “amended application”, I deal with as follows:
   
   • 6.1 I reserve to grant the reliefs sought in 2, 3, 4 and 5 because I have no evidence before me to warrant the grant of such reliefs. I do not know if there are any liabilities of the two named defendant companies incurred by James Kwan, Dennis Kwan and Debby Kwan. I do not know if there are profits made by the two defendant companies. I do not know if the two said companies own the property on Lot 1902, at Ranadi, Honiara.
     
   • 6.2 Reliefs sought in 1 and 6 are covered under order 5.1 above.
     
   • 6.3 As to relief sought in 8, I make costs orders already in 5.3 above.
     

Way Forward, Conclusion and Orders

7. Claimants should take back ownership and control of the two defendant companies as per orders in 5.1 and 5.2 above. Once in control, claimants can then ask the Court again, for the orders, I refused, providing evidence in support. Such action will become necessary as part of the claimants efforts to restore the two defendant companies back to normalcy.
   
8. Accordingly, the orders of the Court are made in paragraphs 5.1, 5.2 and 5.3 above.
   

THE COURT

-----------------------------
JOHN A KENIAPISIA
PUISNE JUDGE