Solomon Airlines Ltd v Alufurai [2023] SBHC 136; HCSI-CC 298 of 2021 (22 November 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Solomon Airlines Ltd v Alufurai
Citation:
Date of decision:	22 November 2023
Parties:	Solomon Airlines Limited v Lemuel Alufurai and Joy Alufurai
Date of hearing:	22 November 2023
Court file number(s):	298 of 2021
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The application to stay the enforcement of the judgment debt is dismissed. 2. The Defendants are to pay the costs of the application on an indemnity basis if not agreed then to be taxed.
Representation:	Ms S Kabau for the Claimant No Appearance for the Defendant
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IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 298 of 2021

BETWEEN

SOLOMON AIRLINES LIMITED
Claimant

AND:

LEMUEL ALUFURAI AND JOY ALUFURAI
(Trading under the name Charis Travel Service)
Defendants

Date of Hearing: 22 November 2023
Date of Decision: 22 November 2023

Ms S Kabau for the Claimant
No Appearance for the Defendant

RULING

1. This case commenced with the filing of the claim on 4 June 2021. On 22 June 2021 the Defendants filed a response acknowledging service.
2. On the same day counsel for the Defendants wrote to the Claimant’s counsel advising that the claim would not be contested and the Defendants are prepared to consent to an order for judgment against them. He sought indulgence from the Claimant to allow an instalment arrangement to be put in place.
3. On 19 August 2021 the Claimant applied for judgment to be entered by default following the failure of the Defendants to file a defence. The application was listed for hearing at 11:30 on 12 October 2021. On that date the Court heard from both counsel Kabau for the Claimant and Mona for the Defendants. The Court entered judgment together with interest and costs.
4. The order was subsequently filed then on 1 November 2021 was perfected. On 8 August 2022 the Claimant brought an application to enforce the judgment order. Counsel certified that the debt had not be paid.
5. The Defendants then chose to change counsel. On 21 June 2022 Just Law Attorneys filed an application to stay the enforcement and a further application to set aside the default judgment that had been entered by consent. Counsel also filed a sworn statement of Lemuel Alufurai (one of the Defendants). That sworn statement had annexed to it a document titled Defence. However a perusal of the document does not disclose a defence. The blame for the failure to pay the debt was placed on the huge difficulties faced by businesses during the COVID-19 Pandemic. Essentially the Defendants alleged that they were entitled to retain 3% of the ticket sales for international tickets and 5% for domestic tickets as their commission and remit the balance to the Claimant. They did not remit those balances.
6. The defence details the difficulties faced and say they did not comply with their obligation to make the remittances as they needed to sustain their business operations. They say they endeavoured to secure a loan from the Development Bank of Solomon Islands but were not successful.
7. It is apparent that monies to be remitted were held in trust for the Claimant. There is no doubt that any business involved in the air travel sector suffered as a result of the pandemic. That does not mean that the Defendants were entitled to retain the funds that were to be remitted to the Claimant whose business was also no doubt challenged by the pandemic.
8. The applications were called for mention on 22 July 2022. Counsel for both the Claimant and the Defendant were present and agreed to the applications being heard on 5 August 2022.
9. On 5 August 2022 Counsel for Defendants failed to appear. The Court then recorded that failure to appear and adjourned the applications to 2 September 2022 at 9:30 am for mention. The Court also made an order that unless counsel appears on 2 September 2022 the application to set aside the default judgment and the application to stay enforcement each filed on 21 June 2022 will be struck out.
10. On 2 September 2022 counsel for the Claimant again appeared but counsel for the Defendants did not. Accordingly the applications filed on 21 June 2022 were both dismissed with the Defendants ordered to pay the Claimant’s costs on the standard basis.
11. On 15 September 2022 the Defendants applied to set aside the orders made on 2 September 2022 and also filed a sworn statement from counsel.
12. The application was called for mention on 28 October 2022. Counsel raised an issue as to whether the application could be heard. A further mention date for counsel to update the Court was set for 17 February 2023.
13. Both counsel appeared on that date. A date was fixed for 8 March 2023 with the consent of both counsel to determine whether the setting aside application could be heard.
14. The Defendants were directed to file written submissions by 21 February 2023 with the Claimant to file submissions in reply by 28 February 2023.
15. No submissions were filed. On 8 March 2023 the Court recorded that no payments to reduce the debt had been made. The Court directed that the setting aside application and the stay application would be heard on 21 April 2023. The Defendants were directed to pay the judgment sum into Court by the close of business on 17 April 2023. The Court ordered that if payment is not made by that time the application to set aside and the application to stay execution will be dismissed and the fixture on 21 April 2023 will be vacated. The Court recorded that the above order was made on the basis that there was no apparent defence and the defendants have acknowledged the debt and previously offered to pay instalments but had failed to make any payments. No payment into Court was made and the applications were therefore dismissed.
16. On 26 June 2023 the Claimants issued a bankruptcy notice. On 15 November 2023 the Defendants filed a further Application for a stay of enforcement and allege that at all material times the Defendants have had a mentorious defence and counterclaim. They filed a sworn statement by Lemuel Alufurai in support. That sworn statement annexed a draft defence and counterclaim. The application was listed for 22 November 2023 with notice of the listing being given on 18 November 2023. The Claimant appeared to oppose the application. There was no appearance by the Defendants nor their counsel. The application and the conduct of the Defendants failing to comply with the previous orders appears to amount to an abuse of process.
17. There being no appearance in support of the application the application is dismissed.

Orders

1. The application to stay the enforcement of the judgment debt is dismissed.
2. The Defendants are to pay the costs of the application on an indemnity basis if not agreed then to be taxed.

By the Court
Hon. Justice Howard Lawry
Puisne Judge