Chow v Podarua [2023] SBHC 167; HCSI-CC 125 of 2010 (10 November 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Chow v Podarua
Citation:
Date of decision:	10 November 2023
Parties:	Mary Chow v Aggie Podarua
Date of hearing:	23 and 24 October 2023
Court file number(s):	125 of 2010
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	(1) The application for leave to enforce the judgment of 3 August 2010 is refused (2) The parties are to meet their own costs.
Representation:	Ms F Waeta’a for the Claimant/Applicant Mr J Seuika for the Defendant/Respondent
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rules 2007, r 21.6, 21.5, 21.11, 21.13, 21.7,R 17.72 Limitation Act [cap 18] S 39, S 33, S 34 to S 36, S 39 (3), S 39 (2),
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 125 of 2010

BETWEEN:

MARY CHOW
Claimant/Applicant

AND:

AGGIE PODARUA
Defendant/Respondent

Date of Hearing: 23 and 24 October 2023
Date of Decision: 10 November 2023

Ms F Waeta’a for the Claimant/Applicant
Mr J Seuika for the Defendant/Respondent

RULING

1. The Claimant has brought an application for leave to enforce orders pursuant to rule 21.6 of the Solomon Islands Courts (Civil Procedure) Rules 2007. The proceedings have been quite protracted. The Claimant and the Defendant were in a landlady-tenant relationship. Judgment was entered in favour of the Claimant by this Court in a judgment dated 3 August 2010. The Defendant did not pay the judgment debt. An enforcement order was granted by the Registrar on 9 September 2010.
2. The High Court entering judgment in favour of the Claimant had accepted the evidence of the Claimant that the tenancy agreement was oral and had not been reduced to writing. Subsequently the Defendant located a signed copy of the agreement. As a result of the Claimant was charged with perjury. Initially she was convicted in the Magistrates’ Court. That conviction was quashed in this Court and sent back for a hearing before another Magistrate. She was then acquitted.
3. Before the criminal proceedings in the Magistrates’ Court were concluded the Registrar had placed a charging order over the fixed term estate of parcel number 191-013-12 which was jointly owned by the Defendant and another. While awaiting trial in the Magistrates’ Court the Claimant brought an application for leave to sell the property of the Defendant. The High Court refused to grant leave because of the outstanding criminal proceedings for perjury. The Claimant appealed to the Court of Appeal. The Court said:
   • “If ultimately perjury is established then the Respondent would have a right to have the judgment of the 3rd of August 2010 set aside because it was tainted by fraud, and of course all subsequent attempts at enforcing that judgment would also be set aside. If that judgment was set aside, it seems clear that it would be open to the Appellant to have a trial Judge re-calculate on a proper basis the amount, if anything, owing by the Respondent to the Appellant for rental during the relevant period.
   • If the Appellant were acquitted of the perjury charges that would not necessarily be the end of the matter. It would still be, as I have already indicated, that there was now clear evidence that the $350,000.00 the subject of the judgment of 3 August 2010 was calculated on an incorrect basis. What remedy the Respondent must then have would depend upon a consideration of a number of rules of practice and on advice that she may be given. But the important aspect for present purposes is that this Court could not entertain the hearing of this appeal because by so doing, it has the potential of giving effect to a judgment which was obtained by fraud.”
4. The Court of Appeal went on to adjourn the appeal awaiting the outcome of the criminal proceedings. As set out above the Claimant was eventually acquitted in the Magistrates’ Court. The Claimant discontinued her appeal to the Court of Appeal. The Claimant brings her present application based on the ruling made on 3 August 2010. As set out in the quotation at paragraph 3, the Court of Appeal noted that there is clear evidence that the subject judgment was calculated on an incorrect basis. The Defendant has not successfully appealed the ruling made on 3 August 2010. She has not applied to set it aside on the basis that it was obtained by fraud. This Court is then left with the ruling of 3 August 2010.
5. The Claimant relies on her two sworn statement filed in support of this application for leave. In the first, sworn on 20 April 2023 the Claimant confirmed that the judgment was entered on 3 August 2010 in the sum of $350,000.00. She does not depose on the other matters set out in Rule 21.29. That may not be an issue as the application is for leave not for an enforcement order. She said that on 23 May 2017 the Magistrates’ Court issued a certificate of Acquittal which relates to the perjury charges. She said that her lawyer filed an application for renewal of enforcement orders in 2018. She said that application was not progressed as she and her lawyer were misled by the Court Registry. She does not say in what way they were misled. From the bar counsel said the Court had misplaced the application. There is no evidence of that before me. The Claimant said in a second sworn statement deposed on 28 June 2023 that she travelled in and out of the country in 2017 and 2018. She said her lawyer was running for the National General Election in 2019 and in 2020 she was overseas and could not return to Solomon Islands because of the COVID-19 restrictions.
6. Rule 21.5 permits an applicant to apply for an enforcement order at any time within 6 years after the date of the order. An enforcement order remains in force for only 1 year after the date it is made. [Rule 21.11]. A person who has obtained an enforcement order may apply to renew that order but that application must be made before the previous enforcement order comes to an end [Rule 21.13]. The enforcement order granted on 9 September 2010 therefore came to an end in September 2011. There is nothing before me to show it was renewed. Counsel has accepted that it was not renewed. It followed that the application for renewal applied for in 2018 could not be granted. No doubt that is the reason leave is now being sought to enforce the order. Rules 21.6 and 21.7 provide:
   • “21.6 An enforcement applicant must get the court's leave to enforce an enforcement order if: (a) it is more than 6 years since the order was made; or (b) there has been a change in the enforcement applicant or enforcement respondent, by assignment, death or otherwise. 21.7 The court may grant leave if it is satisfied in relation to the matters set out in section 39 of the Limitation Act [CAP 18].”‘
7. It is now more than 13 years since the order was made. Rule 21.6(b) does not apply. Rule 21.7 gives the Court the discretion to grant leave if satisfied that there should be an exception to the lime limits provided in the Limitation Act as set out in section 39 of that Act. Section 33 of the Limitation Act provides:
   • “33. Except as otherwise provided in sections 34 to 36, but subject to section 39, the expiry of the prescribed period in relation to an action, or the commencement of an arbitration, as the case may be, bars the legal remedy by that action or arbitration, it does not bar the legal right involved therein or abate the cause thereof.”
8. Sections 34 to 36 have no application to the matter before this Court. Section 39 provides:
   • “39. (1) If it appears to the court that it would be equitable to allow an action to proceed or an arbitration to commence having regard to the degree to which-
     • (a) the provisions of this Act prejudice the plaintiff; and
     • (b) any decision of the court under this subsection would prejudice the defendant,
   • the court may direct that those provisions shall not apply to the action, or arbitration or shall not apply to any specified cause of action to which the action or arbitration relates.
   • (2) In acting under this section the court shall have regard to all the circumstances of the case and in particular to-
   • (a) the length of, and the reasons for, the delay on the part of the plaintiff;
   • (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought or the arbitration had commenced within the prescribed period; or
   • (c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;
   • (d) the duration of any disability of the plaintiff, if any, arising after the date of the accrual of the cause of action;
   • (e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the cause of action was attributable, might be capable at the time of bringing an action or commencing an arbitration;
   • (f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
   • (3) In any case where the time limit, or one of the time limits, depends on the date of knowledge of a person other than the plaintiff, this section shall have effect with appropriate modifications, and shall have effect in particular as if references to the plaintiff included references to any person whose date of knowledge is or was relevant in determining a time limit.”
9. Counsel has not made any submissions to the Court on section 39. However, the section requires the Court to consider all the circumstances of the case in order to determine whether it would be equitable to allow the enforcement to proceed and in particular whether the Claimant is prejudiced by the requirement to apply for an enforcement order within 6 years of the order or whether the Defendant would be prejudiced by making an exception to the time limits provided. The Court must be satisfied that it is equitable to put the statutory time limits to one side.
10. The Court must consider whether it is equitable to enforce a judgment obtained and calculated on an incorrect basis. The Court must also consider the matters set out in section 39(2). The Court also notes that this is not a case where section 39(3) has application as the Claimant has not received knowledge at a later date that August 2010.
11. Dealing with paragraphs (a) to (f) in turn, the Court first notes that the delay from the date of the order is 13 years, that is more than twice the prescribed time limit. There is not an enforcement order that has been kept current by renewals. The passage of time in the present case must give cause for concern about cogency as back in 2010 the Claimant appears to have forgotten that there was a written signed tenancy agreement between the parties. There is no reason to think memories have improved in the 13 years that have passed. In addition for the hearing of this application counsel were directed to provide details of the dates of occupation, the amount of rent paid in addition to providing submissions on the effect of the written agreement in light of the ruling of the Court of Appeal. No details of occupancy nor rent actually paid have been provided by either party. The Court is left to draw its own inferences of the cogency of available evidence on that subject.
12. The actions of the Defendant have not contributed to the delay in the sense set out in paragraph (c). She has not delayed by responding to requests or by making payments to reduce the sums that are clearly owing. There is no evidence before me that the Claimant suffers from any disability that may have contributed to the delay. Apart from the initial application for an enforcement order in 2010 the Claimant has not at any time acted promptly. Paragraph (f) has no application.
13. Clearly the Claimant could have kept the enforcement order obtained in 2010 current but she has not done so. While she may have been delayed while she dealt with the perjury allegations that cannot account for the delay of a further 6 years since the Certificate of Acquittal was obtained. It is true that her counsel became a Member of Parliament but the need to change counsel is not unusual. The restrictions from COVID-19 did prevent regular travel in and out of Solomon Islands from mid March 2020 but there has been nothing put forward as to why she could not have returned had she wished to, later in 2020 nor instructed counsel while she was out of Solomon Islands. The Courts of Solomon islands experienced a month in 2020 when the Courts were not sitting however throughout most of 2021 they sat as usual. From late November 2021 there were civil disturbances and in January 2022 there was an outbreak of COVID that prevent the Courts from operating as usual until April 2022. Since then they have continued to work without interruption.
14. The disruption to the Courts cannot account for the inaction of the Claimant from the time she was acquitted in the Magistrates’ Court until she brought the present application. The Defendant’s submission that she owes nothing is clearly untenable given the findings of the High Court in 2010 which she did not appeal or have set aside.
15. It is recorded that the Claimant seeks to enforce the whole of the judgment even though it was obtained on an incorrect basis. She has also through her counsel sought interest calculated on an incorrect basis. She has sought compound interest. The interest to which she would be entitled is interest on the judgment sum as set out in rule 17.72. She has calculated interest on the judgment sum increased by the interest each year without setting out any basis why that should be so. Notwithstanding the failure of the Defendant to pay amounts that are clearly owed, this the Court has come to the clear conclusion that this is a case where the delay is such that to grant leave would fly in the face of the requirements set out in the Limitation Act and in Rule 21.6. Leave then is refused.
16. Although costs ordinarily follow the event, I am satisfied that the circumstances in the present case require the parties to meet their own costs.

Orders

1. The application for leave to enforce the judgment of 3 August 2010 is refused
2. The parties are to meet their own costs.

By the Court
Hon. Justice Howard Lawry
Puisne Judge