Solomon Islands Tobacco Co Ltd v Liuas's Trading Ltd (trading as Liua Bottle Shop) [2023] SBHC 64; HCSI-CC 648 of 2020 (9 August 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Solomon Islands Tobacco Ltd v Liuas’ Trading Ltd Trading as Liua Bottle Shop
Citation:
Date of decision:	9 August 2023
Parties:	Solomon Islands Tobacco Company Limited v Liuas’s Trading Limited, Trading As Liua Bottle Shop, Liuas’s Trading Limited, Trading As Liua Bottle Shop V Solomon Islands Tobacco Company Limited
Date of hearing:	17 July 2023
Court file number(s):	648 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	I therefore order that the defendant/cross-claimant’s defence and counterclaim filed on 10 November 2022 and their amended defence and counter-claim filed on 25 January 2023 are hereby struck out. Consequently I enter judgment in favour of the claimant/cross defendant in the terms of their claim filed on 9 December 2020. I also order cost against the defendant/cross claimant on the standard basis. I hereby order accordingly. Right of appeal.
Representation:	Mr Primo Afeau for the claimant/cross-defendant Mr Bitibule Kaehuna for the defendant/cross-claimant
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IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No.648 of 2020

BETWEEN

Initial Claim
SOLOMON ISLANDS TOBACCO COMPANY LIMITED
Claimant

AND:

LIUAS’S TRADING LIMITED, TRADING AS LIUA BOTTLE SHOP
Defendant

Cross-Claim

LIUAS’S TRADING LIMITED, TRADING AS LIUA BOTTLE SHOP
Cross Claimant

AND:

SOLOMON ISLANDS TOBACCO COMPANY LIMITED
Cross Defendant

Date of Hearing: 17 July 2023
Date of Decision: 9 August 2023

Mr Primo Afeau for the Claimant/Cross-Defendant
Mr Bitibule Kaehuna for the Defendant/Cross-Claimant

Ruling on application on unless order

Bird PJ:

1. This claim was initially commenced by the claimant/cross defendant as a simple category B claim. As pleadings were exchanged, it became obvious that it was a complicated category B claim. Default judgment was entered by the court on the 7^th June 2021. That default judgment was set aside by the court upon application on the 5^th August 2022. Thereafter an amended defence and counter claim was filed by the defendant/cross-claimant on the 25^th January 2023. A request for further and better particulars was filed on the 14^th March 2023 by the claimant/defendant. When the matter was called for mention on the 2^nd May 2023, no issues were raised by Mr Kaehuna of counsel for the defendant/cross-claimant about the filed request for further and better particulars. Mr Kaehuna merely sought time to provide the requested particulars. He was given time to the 16^th May 2023.
2. When the matter was called again on the 30^th May 2023, Mr Kaehuna of counsel for the defendant/cross claimant did not appear to represent his client. The requested particulars were also not filed by then. On that date, the court made an unless order and perfected on the 1^st June 2023 in the following terms:
   • “Unless the defendant files and serves its full and complete response to the claimant’s request for further and better particulars filed and served on 14 March 2023 by 6 June 2023 the defendant’s defence and counterclaim filed on 10 November 2022 and its amended claim and counterclaim filed on 25 January 2023 are struck out forthwith with cost”.
3. On 6 June 2023, the defendant/cross-claimant filed their further and better particulars. The matter was called again for mention on the 7^th June 2023. It then appeared that Mr Kaehuna has not filed full and complete disclosures even to that date and he requested a further 7 days to fully comply with the orders. He was given until 21 June to fully comply. By 11 July 2023 when the matter was again called for mention, Mr Kaehuna had yet to fully comply with direction orders perfected on 1 June 2023. Questions 5 and 6 of the request were not sufficiently answered by Mr Kaehuna and he conceded during the hearing. He nonetheless stated that the particulars were contained in a huge further sworn statement by Joseph Nene Maneagu filed on the 5^th May 2022. However, in his answer, there were no page references made by him to the said sworn statement to assist Mr Afeau on his request. I then listed the matter for argument on the 17^th July 2023.
4. Owing to the above background information, it is argued by Mr Afeau of counsel for the claimant/cross-defendant that Mr Kaehuna had not made a full and complete response to his client’s request for better and further particulars filed on 14 March 2023. The unless order requires Mr Kaehuna to make full and complete response and he had failed to do that. The effect of non-compliance of the unless order in self-executing meaning that the defendant/counter-claimant’s defence and counter-claim filed on 10 November 2022 and their amended defence and counterclaim filed on 25 January 2023 should be struck out.
5. Mr Kaehuna of counsel for the defendant/cross-claimant do not dispute that he had not made full and complete response to the application of the claimant/cross-defendant for better and further particulars. He nonetheless submitted that the required documents and information are also contained in the further sworn statement of Joseph Nene Maneagu filed on 5 May 2022. He also conceded that he did not refer to the documents in that huge sworn statement in his answers to the request made by Mr Afeau.
6. The initial claim of the claimant/cross-defendant was filed in court on 9 December 2020. For more than two and half years, the matter is still in the pleading stage. It is very concerning that this matter had not progressed past the pleading stage for a long period of time. A number of direction orders were made by the court since I took carriage of this case in order to progress it to trial. Those direction orders were not complied with. It was upon those circumstances that an unless order was made by the court on 30 May 2023 and perfected on 1 June 2023. The defendant/cross-claimant had about 41 days from 1 June 2023 to 11 July 2023 to make full and complete response. He had failed to do so without any reasonable excuse.
7. Owing to the above discussion, the unless order perfected on 1 June 2023 comes into play. I therefore order that the defendant/cross-claimant’s defence and counterclaim filed on 10 November 2022 and their amended defence and counter-claim filed on 25 January 2023 are hereby struck out. Consequently I enter judgment in favour of the claimant/cross defendant in the terms of their claim filed on 9 December 2020. I also order cost against the defendant/cross claimant on the standard basis. I hereby order accordingly. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge