Asia Pacific Investment Development Ltd v Bintan Mining SI Ltd [2024] SBHC 9; HCSI-CC 388 of 2021 (21 February 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Asia Pacific Investment Development Ltd v Bintan Mining SI Ltd
Citation:
Date of decision:	21 February 2024
Parties:	Asia Pacific Investment Development Limited v Bintan Mining SI Limited, Bintan Mining Corporation
Date of hearing:	16 February 2024
Court file number(s):	388 of 2021
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. Judgment is entered for the Claimant against both the First Defendant and the Second Defendant is the sum of SBD5, 400,000.00 together with costs in the sum of SBD39, 839.00. 2. The judgment sum and costs are ordered to be paid within 21 days of the perfected orders being served on the First Defendant and the Second Defendant, such service to be effected by email to the liquidators of the First Defendant and the Second Defendant. 3. If the First Defendant and/or the Second Defendant fail to pay the sums set out in order 1 hereof within 21 days, the Claimant may enforce the judgment, transporting if necessary items restrained in the order of 17 December 2021 to Honiara for that purpose.
Representation:	Mr G Suri for the Claimant No Appearance for the Defendant
Catchwords:
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Legislation cited:
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 388 of 2021

BETWEEN

ASIA PACIFIC INVESTMENT DEVELOPMENT LIMITED
Claimant

AND:

BINTAN MINING SI LIMITED
First Defendant

AND:

BINTAN MINING CORPORATION
Second Defendant

Date of Hearing: 16 February 2024
Date of Decision: 21 February 2024

Mr G Suri for the Claimant
No Appearance for the Defendant

RULING

1. The claim in this matter was filed on 9 July 2021, and was amended on 12 July 2021. The amendment made reflected that First Defendant was not in liquidation but the Second Defendant was. The Court granted an application for substituted service on the Second Defendant. The Court was satisfied that the amended claim was served by envelope sent via DHL to Vistra (Bui) Ltd, Vistra Corporate Service Centre, Whickham Cay 11, Road Town, Tortola VG1110.
2. On 17 December 2021 the Court granted an urgent injunction in favour of the Claimant, the application for which had been served on both Defendants together with the amended claim. That order was in the following terms:
   • “ 1. Until further orders, all machineries, equipment, tools or any form of asset belonging to any of the Respondents and used or currently stored or kept at the mine Site on Parcel No. 298-005-1 or anywhere in West Rennell Renbel Province shall not be removed, transferred, sold or damaged by any of the Respondents or their agents.”
   • 2. Any of the parties may seek an inter parties hearing for consideration of the interim injunction.
   • 3. This matter shall return for mention on 4 February 2022.
   • 4. Costs in the Cause.”
3. No party has sought an inter parties hearing in respect of this injunctive order.
4. On 29 March 2022 the Claimants filed an application to further amend the claim. The amendment was necessary as by that time, the First Defendant had gone into liquidation.
5. On 4 August 2023 the Court granted leave to the Claimant to file a further amended claim. Orders for substituted service were made directing the Claimant to serve the further amended claim by email to the liquidator of the First Defendant and the Liquidator of the Second Defendant. The Court ordered that the respective defences be filed within 28 days of the service by email. The Claimant was given 14 days after the filing and service of the defences to file its reply. The Court granted leave to the parties to file an application on 7 days’ notice.
6. Neither Defendant filed any application nor a defence to the further amended claim. On 24 November 2023 the Claimant filed an application for default judgment. That application came before the Court on 28 November 2023. The Court made an order in the following terms:
   • “UPON HEARING COUNSEL Mr. Suri G of Counsel for the Claimant and no one appearing for the Defendants;
   • AND UPON READING the Claimant’s Application for default judgment and the supporting sworn Statements filed in Court;
   • AND UPON BEING SATISFIED that the Further Amended Claim, Application for Default Judgment and Notice of Hearing have been duly served on the Defendants through their appointed liquidators by email pursuant to leave granted by this Court;
   • IT IS HEREBY ADJUDGED AND ORDERED that:
   • Judgment in default be entered against the Defendants in the terms prayed for in the Further Amended Claim filed on 4 August 2023.
   • These orders shall take effect immediately after 14 days from 28^th November 2023. The Defendants, who failed to attend, may file and serve an application for setting aside of the default judgment within the said 14 days.
   • Costs and incidental to the proceeding, including the application for default judgment, be paid by the 1^st and 2^nd Defendants to be assessed if not agreed.
7. On 20 December 2023 the Claimant filed a sworn statement of William Tino in support of the Claimants’ application for assessment of damages, filed on the same day.
8. On 1 February 2024, the date for the hearing of the application for assessment of damages was set for 16 February 2024. The Claimant had filed a proof of service of the application on 1 February 2024. In that proof of service the deponent provided evidence of serving the application on 4 January 2024 and serving the sworn statement of William Tino on 31 January 2024.
9. On 8 February 2024 there was an amended application for assessment of damages and for an application for a money enforcement order, together with evidence in support.
10. On 16 February 2024 the Court received a sworn statement from Natasha Rita, a personal assistant to counsel for the Claimant. That sworn statement provided evidence of service of the amended application and the further sworn statement of William Tino. Importantly the sworn statement annexed an email which was sent to Natasha Rita from Steve Agosta, who I understand is solicitor at Nelson McKinnon, Lawyers based in Sydney. The email concerned the application. In that email he included the following:
    • “ In the above circumstances, I am instructed to a request confirmation by reply email - by no later than 10.30am tomorrow, 16 February 2024 – that your client:
    1. Agrees to adjourn the hearing of its Damages Application for a period of no less than twenty-eight (28) days so that my client can engage legal representation in the Solomon Islands to assist with the preparation and filling of the foreshadowed application to set aside the default judgment entered on the claim;
    2. Will not otherwise tomorrow see any orders the subject of the Damages Application; and
    3. Will bring this correspondence to the attention of the High Court of the Solomon Islands at the commencement of the hearing of your client’s Damages Application.
    • I await the requested confirmation by reply email, however please do not hesitate to contact me should you wish to discuss this matter in the interim.”
    • The Court understood that Mr Agosta represented the First Defendant but had placed nothing before the Court other than the email provided by counsel for the Claimant.
11. At the hearing on 16 February 2024, Mr Suri for the Claimant brought the sworn statement of Natasha Rita and the email to the Court’s attention. He also drew the Court’s attention to the number of occasions emails had been sent to the liquidators. There was no appearance on behalf of either Defendant. Mr Suri indicated that he was not seeking an adjournment and addressed issues relating to the power to set aside default judgment. No such application was before the Court and no application was made to adjourn the hearing of the application. Whether or not a hearing is adjourned is for the Court to determined based on the material before it. The Court proceeded to hear submissions from counsel. Counsel took the Court through the sworn statements filed in support of the application for damages. The Court is satisfied that damages were suffered by the Claimant of not less than SBD 5,400,000.00 and that costs on the standard basis are no less than $39,839.00.
12. No submission was made to the Court to challenge the material placed before the Court upon which the Claimant relied. The Court is satisfied that the Defendants had knowledge of the hearing and elected to not instruct counsel to appear to make submissions.

Orders

1. Judgment is entered for the Claimant against both the First Defendant and the Second Defendant is the sum of SBD5, 400,000.00 together with costs in the sum of SBD39, 839.00.
2. The judgment sum and costs are ordered to be paid within 21 days of the perfected orders being served on the First Defendant and the Second Defendant, such service to be effected by email to the liquidators of the First Defendant and the Second Defendant.
3. If the First Defendant and/or the Second Defendant fail to pay the sums set out in order 1 hereof within 21 days, the Claimant may enforce the judgment, transporting if necessary items restrained in the order of 17 December 2021 to Honiara for that purpose.

By the Court
Hon. Justice Howard Lawry
Puisne Judge