Global Digital Press Co Ltd v Tomasusukeni [2023] SBHC 76; HCSI-CC 131 of 2014 (8 September 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Global Digital Press Co. Ltd v Tomasusukeni
Citation:
Date of decision:	8 September 2023
Parties:	Global Digital Press Company Limited v Agnes Tomasusukeni
Date of hearing:	16 August 2023
Court file number(s):	131 of 2014
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	The value of legal fees sought in paragraph 4 of the application are refused on the basis of rule 24.7 of the CPR as read with schedule 3 part 3 of the CPR (High Court Proceedings). I award legal fees in the sum of SBD$2,085.00 as per paragraph 7 (1) of the application. The order sought in paragraph 5 is granted but subject to paragraph 22 above on commencement date of interest at 5%. The orders sought in paragraph 6 is also granted and except in respect of sub-paragraph (a), all other orders sought in paragraph 7 are also granted. The issue of cost in this application is subsumed in the sum of SBD2, 085.00 as earlier stated and I make no further orders for cost. I hereby order accordingly.
Representation:	Ms Julia Sogedy for the Claimant/Judgment Creditor Mr Lauta for the Defendant/Judgment Debtor
Catchwords:
Words and phrases:
Legislation cited:	Limitation Act S 6 [cap 17], S 39, S 6 (1)Solomon Islands (Civil Procedure) Rule 2007 r21.6, r 21.11, r31.13(a)
Cases cited:	Guo Fengli Chi v Guo Fengli [2012] SBCA 11

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 131 of 2014

BETWEEN

GLOBAL DIGITAL PRESS COMPANY LIMITED
Claimant

AND:

AGNES TOMASUSUKENI
Defendant

Date of Hearing: 16 August 2023
Date of Decision: 8 September 2023

Ms Julia Sogedy for the Claimant/Judgment Creditor
Mr Lauta for the Defendant/Judgment Debtor

RULING

Bird PJ:

1. The Claimant/Judgment Creditor filed an application for Enforcement Order and supporting sworn statement on 28 April 2023 to enforce part of the order of the court dated 17 March 2015. On 30 July 2015, the Claimant/Judgment Creditor obtained an Enforcement Order. The sum of SBD$80,000.00 was recovered with the assistance of the Sheriff of the High Court. The remaining balance of SBD$40,000.00 with interest and cost remained outstanding due to agreement by the parties to settle. The Enforcement Order had expired and was not renewed until an application for Renewal of Enforcement Order was filed on 28 April 2023, more than five years later. The court then invited submissions from counsel on the provision of the Limitation Act (cap17).
2. On that issue, Ms Sogedy of counsel for the Claimant/Judgment Creditor submits that notwithstanding the provision of s. 6 of the Limitation Act (the “Act”) that provision will cause them substantial prejudice. That section provides –
   • S.6 (1) No action shall be brought upon any judgment after the expiration of six years from the date on which the judgment became enforceable.
3. Based on the above provision, it is submitted by counsel that the court must consider two starting points. One starting point is the date of judgment being 17 March 2015 which would be a time lapse of 8 years. The other starting point would run from the date of the expiry of the last Enforcement Order. Counsel submits that it will run from 30 July 2016. The time lapse would then be 6 years, 8 months and 27 days. According to the circumstances of this case, it is submitted by counsel that the starting point should commence on 30 July 2016 when the last Enforcement Order expired. The delay would therefore be one of 8 months and 27 days.
4. Counsel also made submission on the provision of rule 21.6 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR). That rule states:
   • r. 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;
   • b)there has been a change in the enforcement applicant or enforcement respondent, by assignment, death or otherwise.
5. It is therefore the Claimant/Judgement Creditor’s case that the court in its discretion may grant leave to issue an Enforcement Order.
6. Ms Sogedy of counsel also relate her submission on s. 39 of the Limitation Act which refers to the condonation of the court of the delay in actions. That section provides:
   • s.39 (1)If it appears to the court that it would be equitable to allow and action to proceed or an arbitration to commence having regard to the degree to which –
   • a)the provision 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 within appropriate modifications and shall 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.

7. Having stated the law, Ms Sogedy argues that there is reasonable cause of delay in this case and she relies in the principle enunciated in the case of Guo Feng Chi v Guo Fengli [2012] SBCA 11; CA-CAC 30 of 2011. In that case, the Court of Appeal stated that a reasonable man’s test must be done to access reasonable cause. It has to be judged in a common sense fashion and the court should assess whether any particular excuse or explanation amounts to reasonable cause.
8. It is therefore submitted by counsel that the Claimant/Judgment Creditor has stated reasons why he did not renew his application for enforcement order as required by the rules. Firstly, the defendant has made an undertaking to settle the said amount. The proprietor of the Claimant/Judgement Creditor wanted to maintain his cordial relationship with the Defendant/Judgment Debtor because they had built a house in the area and his employees were living in that house. At the same time, he had no intention of foregoing the debt. It was after the proprietor had realised that the Defendant/Judgment Debtor had sold the area to a third party that he had filed the application for Enforcement Order pursuant to rule 21.6(a) and 21.7 of the CPR.
9. The other requirement of such an application of this nature is whether in allowing the application, it would cause substantial prejudice to another party. It is submitted that the only other party to this application is the Defendant/Judgment Debtor. It is submitted that the application is merely to revitalise the judgement of this court of 17 March 2015. It is submitted that the only prejudice that could be caused in this case would be to the Claimant/Judgment Creditor for loss of part of the judgment made in its favour on 17 March 2015. It is submitted that no prejudice would be caused to the Defendant/Judgment Debtor. It is therefore submitted that the application of the Claimant/Judgment Creditor should be allowed under those circumstances.
10. On behalf of the Defendant/Judgment Debtor, it is submitted by Mr Fiuta of counsel that the application of the Claimant/Judgment Creditor is statute barred under s. 6 (1) of the Limitation Act and should be dismissed with cost.
11. It is submitted by counsel that the order against his client was made on 17 March 2015. The Enforcement Order dated 30 July 2015 had expired on 30 July 2016 as per rule 21.11 of the CPR. By virtue of r.21 13 (a) of the rules, an application for renewal of Enforcement Order must be made before the order ends. That was not done by the Claimant/Judgment Creditor in this case.
12. It is further submitted by counsel that the Defendant/Judgment Debtor had already paid the principal amount of SBD$80,000.00 to the Claimant/Judgment Creditor. The further claim of SBD$14, 514 and SBD40, 000.00 are neither effective nor effectual under s. 6 (1) of the Limitation Act.
13. Having discussed the submission of both counsel for the Claimant/Judgment Creditor and the Defendant/Judgment Debtor, there is consensus that the order, the subject of the application before me was made by the court on 17 March 2015. Upon perusing the enforcement file related to this proceeding, the last Enforcement Order was dated 24 April 2017 which could ordinarily expire on 24 April 2018.
14. There is also no issue that paragraph 1 of the judgment dated 17 March 2015 have been settled by the Defendant/Judgment Debtor. The amount of $40,000.00 as stipulated in paragraph 2 of the judgment remains outstanding to this date as well as interest and cost.
15. Upon expiry of that order, the provision of rule 21.6 of the rules come into play. The party applying must seek leave of the court to enforce an enforcement order. In their application filed on 28 April 2023, the Claimant/Judgment Creditor had sought leave pursuant to r. 21.6 (a) and 21.7 of the rules to enforce the judgment of the court dated 17 March 2015.
16. So the next question to discuss is the timing as stipulated under r. 21.5 of the CPR. That rule provides:
    • R.21.5 An enforcement application may enforce an order (a money order or a non- money order) at any time within 6 years after the date of the order.
17. The above provision in my view means that the time of enforcement of orders start to run from the date of the order which is sought to be enforced. That provision is specific in that it states “an enforcement application may enforce an order”. That would necessarily goes to mean ‘the order’ that had determined the issue as between the parties to that case. So in this case, the date of the order which is sought to be enforced is the order of 17 March 2015. That being the case, the time lapse in this case would be a period of 8 years, I month and 11 days. I do not think that the order which is sought to be enforced in this case is the Enforcement Order of 30 July 2015 or the one dated 24 April 2017 alluded to in paragraph 13 above.
18. Having discussed that issue, I will now consider the provision of s. 39 of the Limitation Act as required under r. 21.7 of the CPR. I have to determine if the court could condone the delay of 8 years, 1 month and 11 days as the time lapse pertaining to this application. Pursuant to s.39 (1), I must have regard to the degree to which the provision of this Act prejudice the plaintiff and any decision of the court under this subsection would prejudice the defendant. Pursuant to subsection (2), I must also have regard to all the circumstances of the case as stipulated in paragraph 6 above. So from the facts of this case, the period that the Claimant/Judgment Creditor is seeking condonation of this court is a period of 2 years, 1 month and 11 days.
19. As per requirement of s.39 2 (a) of the Limitation Act, and the submission of Counsel Ms Sogedy, I have noted the reasons advanced by counsel for the delay in pursuing the application for enforcement order. There was an undertaking by the defendant/Judgment Debtor to make full payment of the balance of the order of 17 March 2015. That was not done by the Defendant/Judgment Debtor. There was also mutual understanding between the parties as to repayment but that was aborted when the Defendant/Judgment Debtor decided to sell the subject land on which the Claimant/Judgment Creditor had built a house on.
20. I have also considered the likely prejudice the court’s order could have to the parties in this case. This is a judgment whereby the Defendant/Judgment Debtor is fully aware of. There were indications by the Defendant/Judgment Debtor of making further payment to the Claimant/Judgment Creditor in satisfaction of the order of 17 March 2015. In light of those circumstances, it is my considered view that the party that is likely to be prejudiced is the Claimant/Judgment Creditor.
21. In light of the above discussion on the provision of s.39 (2) of the Limitation Act, and the principle stated by the Court of Appeal in the Guo Fengli Chi case, I able to say that the character of explanation given by the Claimant/Judgment Creditor is a reasonable explanation as to the delay in their pursuing the application for enforcement order. I am also able to say that since the order of the 17 March 2015 was an order made by the court with full knowledge of the Defendant/Judgment Debtor, I am of the view that any order to enforce it would not prejudice her in any way. On the contrary and if the application is refused, the Claimant/Judgment Creditor would have suffered prejudice. I hereby hold that it is equitable for this court to condone the delay of 2 years, 1 month and 11 days in favour of the Claimant/Judgement Creditor under s. 39 (1) and (2) of the Limitation Act (cap 18). Leave is hereby granted to the Claimant/Judgment Creditor to continue to enforce the judgment of 17 March 2015 under rule 21.6 and 21.7 of the CPR.
22. As a consequence of the granting of leave under paragraph 1 of the Claimant/Judgment Creditors application, order 2 of the application is also granted. Taking into account the discussion in this ruling and more especially on the length of delay occasioned in this case, interest on the sum of SBD$40,000.00 as claimed in paragraph 3 of the application is refused. I nonetheless order that interest of 5% will only commence on 28 April 2023, the date of filing of the application, until the amount is fully paid.
23. The value of legal fees sought in paragraph 4 of the application are refused on the basis of rule 24.7 of the CPR as read with schedule 3 part 3 of the CPR (High Court Proceedings). I award legal fees in the sum of SBD$2,085.00 as per paragraph 7 (1) of the application. The order sought in paragraph 5 is granted but subject to paragraph 22 above on commencement date of interest at 5%. The orders sought in paragraph 6 is also granted and except in respect of sub-paragraph (a), all other orders sought in paragraph 7 are also granted. The issue of cost in this application is subsumed in the sum of SBD2, 085.00 as earlier stated and I make no further orders for cost. I hereby order accordingly.

THE COURT
Justice Maelyn Bird
Puisne Judge