Oceania Islands Ltd v Poy Loy Pty Ltd ACN 100 903 553 [2018] SBHC 26; HCSI-CC 148 of 2017 (23 February 2018)

OCEANIA ISLANDS -V- POY LOY PTY LTD
LIMITED ACN 100 903 553,
(Claimant) (Defendant)

AND BY COUNTERCLAIM

POY LOY PTY LTD ACN
100 903 553 (Counter claimant)

OCEANIA ISLANDS
LIMITED (1^st Defendant by
Counterclaim)

JASON EVLOGOSIS
(2^nd Defendant by Counterclaim)

HIGH COURT OF SOLOMON ISLANDS
(BROWN J)
Civil Case No.148 of 2017

Date of Hearing: 31 October 2017
Date of Judgment: 23 February 2018

M. Pitakaka with J.S. Taupongi for claimant and 1^st and 2^nd defendants by Counterclaim
J. Sullivan QC with E. Soma for defendant and claimant by Counterclaim

Moneys claimed under quasi-contract with cross claim for recovery of moneys paid by the defendant to the claimant for the use and benefit of the defendant

Brown J:
In April 2016, I granted an ex parte application for the arrest of this ship, “Cape Peron”, for the application was in the nature a Mareva injunction^[1] (to prevent the risk of the ship removing from the jurisdiction of this court before judgment where a cause of action has been shown against the defendant). The cause of action was, in my reasons, stated to be a claim for “demurrage”, (or a claim by the claimant for “keeping the ship”, a property claim). On the 6 June 2016, the court made the following orders by way of directions by consent;
“Upon hearing Mr. Pitakaka with him Mr. Taupongi of Counsel for the Claimant, and Mr. Sullivan of Queens Counsel, with him Mr. Soma of Counsel for the Defendant on 2 June 2017
And upon the Defendant and its owner, Poy Loy Pty Ltd’s payment of the sum of $146,000.00 to the trust account of Sol-Law to abide judgment or further order in these proceedings and consenting to the same being paid in due course into a joint trust account in the names of the solicitors for the Defendant and Claimant with the case number of these proceedings noted to abide judgment or further order in these proceedings.
And upon Sol-Law by its Counsel is undertaking to hold the said sum in trust to abide judgment or further order in these proceedings and to pay the same to the said joint trust account if, and when, the same is established;” the court discharged the earlier warrant of arrest of the ship and made directions for the further conduct of the claim, allowing Poy Loy Pty Ltd to be substituted as defendant (in lieu of the Ship).

On the 15 June 2017 a defence and counterclaim was filed, the counterclaimant Poy Loy Pty Ltd (the substituted “defendant”) suing both the claimant Oceania Island Ltd (1^st defendant by counterclaim) and Jason Evologosis (2^nd defendant by counter claim).

The basis of the counterclaim included detail of the various dealing by persons for the two named incorporated companies, Oceania Islands Ltd (the claimant/1^st defendant by counterclaim hereinafter called “Oceana”) and Poy Loy Pty Ltd (the defendant/counterclaimant hereinafter called “Po Loy”).

Harry Zhao (the son of Annie Zho, the sale director and shareholder of the Australian Company Po Loy, owner of the ship) and Jason Evologosis (for Oceania) had discussed a joint venture in Solomon Islands, using Oceania as the “vehicle” for carrying on a fisheries business. The counter claimant Po Loy pleaded Jason Evologosis, (as agent for Oceania) represented that the Company had and would maintain a cray fishing licence in the Solomon Islands for the purposes of the venture. As a consequence of the discussions, a Memorandum of Understand was signed between Harry Zhao and Wild Harvest Seafood of P. O. Box 157 Jannali, NSW (represented by Chris. Evologosis) (owner of Oceania of Box 1759 Honiara^[2]).

The MOU was pleaded in the Defence as void for uncertaintly and of no force or effect.

In its claim,^[3] by statement Oceania at 5, relied on the MOU.
“On or about September 29, 2015, Po Loy, through Harry, executed a Memorandum of Understanding with the Claimant and WHS (“MOU”) by which Po Loy was to purchase 90% shares in WHS for USD 300,000. Po Loy was given the option of outright purchase, or enter a joint venture in Solomon Islands with the Claimant and WHS and pay the purchase price in instalments from Po Loy’s share of profits from that joint venture. Po Loy chose the joint venture option. Under that option, Po Loy was to provide working capital to the Claimant.”

The MOU was expressed, in the body of the document (with stamp affixed) to be a Deed of Agreement.

The MOU document provided an either/or clause; there was expressed to be consideration by way of share of profits from the joint venture [although if by deed, it failed in the absence of “seal”], and in any event, the offeror, Oceania was to transfer as legal owner the beneficial interest in the business free from all lien, charges and encumbrances “to the nominated entity on full payment on the term and condition hereinafter contained and for the consideration herein after expressed.” The either/or option was executory if a contract and no agreement in reliance on the supposed MOU has been evidenced. I find the MOU cannot be a contract for it fails the essential nature, there is no genuine agreement between these parties in these proceedings, Oceania and Po Loy; the offeror Oceania has not been shown to have contracted with Po Loy; the “term and condition” was never evidenced and frankly the venture was doomed to failure for uncertainty.

The other Agreement relied upon by the Claimant, Oceania was a Boat Lease.^[4]
This document, dated 4 February 2017 (stamp affixed) was stated to be between Po Loy (represented by Harry Zhao) as “owner” and Oceania as “renter” of the ship “Cape Peron” for one year “as per revised MOU”.
The terms included;
“4. Rental Rate
4.1 The Rental hereby agrees to pay the owner at the rate of US$1,000 per month
4.2 All costs, fuel etc used shall be paid for by owner
4.3 There shall be no additional Rental fee for the lifesaving and Safety equipment nor for any other equipment.
5. Insurance
5.1 ........
5. Return of Boat
5.1 The Renter hereby agrees to return the above described boat etc to the owner at end of period as per MOU revised MOU agreement
10. Jurisdiction Solomon Islands.”

The owner of the ship, Po Loy denies Harry Zhao’s right to contract on the companies behalf. As well the Defence pleads the agreement in void for uncertainty, as by clause 1 it is dependent upon a “revised MOU”. There was none shown.

I do not accept the Boat Rental binds, according to it terms (for they again are void for uncertainty) Po Loy. The ship was made available in the Solomon Islands, however and Harry Zhao obviously had ostensible authority to treat with the ship of Po Loy, a ship brought from Australia with the companies’ permission.

The Monetary claim has been detailed in paragraphs 10, 11, of the statement of case. That claim may be seen in paragraph 24 of Jason Evologosis statement^[5] and his exhibit JE-12”.
The expense, shown in exhibit “JE-12” are,

1. Wages (seamen and security) SI $17,000.00
2. Food and essential $10,129.10

100. Fuel and Oil supplied to the vessel $8,928.10

4. Freight and clearance expense $19,970.00
5. Tools, parts and maintenance $108,446.07

The expenses are claimed to relate to the period 8 February – 18 April.

The defendant relies on evidence of moneys paid [in satisfaction of claims] by Harry Zhao^[6] following demand of Jason Evlogosis on or about the 4 February 2017 for wages, port fees and customs clearance fees. By evidence of ANZ Bank deposit receipt and electronic transfer^[7] a cash deposit of AUD$7,500 was paid to account David Leong Lee and transfer of AUD$6,000 to the same account was made on the 7 February. I accept moneys were paid David Leong Lee on account of Jason and Chris Evlogosis at their direction. These amounts approximate to SI$83,850.93. By statement of case and by expenses claimed, above at a) and d) some SI$36,970 was claimed.

In his statement, Harry Zhao deposes to other moneys paid “to Jason and Chris via such account previously for materials under the MOU”^[8]. No detail of such payments were furnished, apart from a payment of AUD$40,000 made on the 9 January 2017 following request of Jason^[9]. This payment shows the beneficiary to be Annie Shao-account 291745335 ANZ Sunnybank. I accept this payment relates to the dealings then carried on between Harry Zhao and Jason. Such AUD payment approximates SI$240,240.24.

Further moneys were paid on the 20 February 2017 by direction of Jason to one Karen A. Tran to her Australian bank account to be set off against moneys sought for parts, and maintenance and materials. Two separate payments of AUD$5,000 were paid Ms. Tran totaling AUD$10,000.^[10] These payments represented some SI$61,957.86

I accept the sworn evidence supports such payments. In total some AUD$63,500 appears to have been advanced Jason and Chris on account of Oceania. The amount claimed to have been paid, AUD$63,530^[11] appears to include the AUD$30 bank transfer fee to be borne by the transferor. Using the apparent variable bank exchange rate [used by the company, Po Loy] of approximately 6*1 to arrive at an equivalent SI$, I accept the sum of SI$394,391.33 was paid.

I am further satisfied full and frank disclosure had not been made the court at the time the order for the arrest of the ship had been made, for acknowledgement of payment of such moneys in pursuance of the venture had not been made.

On release of the ship on the 6 June 2017, the maintence work claimed for the refrigeration and other matters going to the safety of the ship, had not been carried out as claimed in the statement of case. The issue then, in relation to e), (tools, parts, and maintenance costs) has not been satisfactorily proven, given that the work to the cooler/freezer systems had not been shown. I am not satisfied the amount of SI$108,446.07, item e) in the claim, is supported by the evidence and disallow such claim. The sum of the claims allowed total SI$46,970

The amount paid exceeds the allowed money claim of SI$46,970 by some SI$347,421.33. No allowances have been shown to have been made by the claimant in relation to the claim for any moneys advanced by Po Loy or Harry Zhao. Again the court sees any such suppression of facts as evidence of deliberate misstatement sufficient to discharge the interlocutory injunctive order without anything further. The injunction was discharged for the reasons given although the defendant argues that no moneys are due by the Defendant in relation to its “money claim”. I accept the defendant’s argument on this point.

As I have shown, the “money claim” [which I initially described as “demurrage” to afford the claimant the benefit of a cause of action] cannot rely on either the boat charter agreement (void for uncertainty) or the MOU in the absence of agreement; it may be seen to rely on a quasi-contractual claim for benefits to be conferred Po Loy under some invalid agreement.

The Counterclaim.

By order made on the 8 September 2017, judgment was entered on the counterclaim against the 1^st and 2^nd defendants in default of a response or defence.

By terms of the order, the court acknowledged the sum of AUD$63,500 as moneys had and received by the defendants to the use and benefit of Po Loy.

In terms of the claim, since the vessel had been made available and moneys paid to the claimant, Oceania to accommodate the vessels use by Oceania pending some agreement never concluded, I am willing to allow the Claim by way of quantum meruit for services rendered Po Loy, in the sum of SI$46,970, thus reducing the sum received by the defendants to the use and benefit of Po Loy to SI$347,421.33 awarded by Order of the 11 September, payable by the defendants.

Since on the findings leading to the discharge of the warrant of arrest of the ship, MV Peron, it is apparent deliberate misstatement led the court into error, I award damages for wrongful arrest in the sum of SI$2,000. I award unliquidated damages for wrongful arrest of the ship in the sum of SI$20,000. Interest calculated from the institution of the counterclaim on the 15 June 2017 to date of judgment on these monetary awards totaling SI$369,421.33, at 5% pa [calculated monthly] in the sum of SI$12,314.00 shall be included in the total amount of the judgment.

In accordance with orders made against the 1^st defendant, orders perfected on the 11 September 2017, I further order release to the counterclaimant of the sum of SI$146,000 held in trust to abide this decision.

I give liberty to apply.

The defendant/counterclaimant shall have its costs of these proceedings and I certify costs for senior counsel.

BROWN J

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^[1] Mareva Campania Naviera SA v International Bulk Carries SA “The Mareva” (1980) l All ER 2,3,2 Lloyd’s Report 509
^[2] Annex “HZ-1” to sworn statement of Harry Zhao filed 2/6/17
^[3] Filed 19/04/17
^[4] Exhibit “JE-9” in statement of Jason Evologosis
^[5] Statement filed 19/4/17
^[6] Statement filed 2/6/17, para 20, Exhibit, pages 27, 28
^[7] Pages 27, 28 of Annexure “HZ-1”
^[8] Statement para 21
^[9] Statement of Harry Zhao filed 2 June 2017, para.10; page 25 annexure “HZ-1”
^[10] 29,30 of annexure “HZ-1”
^[11] Statement of “HZ”, para42