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CP Homes Ltd v Dai Island Sawmilling Ltd [1997] SBHC 83; HC-CC 293 of 1996 (4 March 1997)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 293 of 1996.

CP HOMES LIMITED

-V-

DAI ISLAND SAWMILLING LIMITED

High Court of Solomon Islands
(Palmer J)

Hearing: 19th December, 1996
Judgment: 4th March, 1997

A. Radclyffe for the Applicant/Plaintiff
T. Kama for the Respondent/Defendant

PALMER J.: The Applicant applies by Summons filed on 29th November, 1996 for the following orders:

"1. That the Plaintiff have leave to amend the Writ as follows:-

The Plaintiffs claim is for $155,767.58 being bulldozer hire charges to 30th September 1996 and continuing at the rate of $924.88 per day from 1st October 1996 until payment with interest at the rate of 1.5% per month due from the Defendant to the Plaintiff under an agreement in writing dated the 14th December 1995 and the cost of the return of the Plaintiffs bulldozer to the Plaintiff in Honiara and the cost of putting the said bulldozer into serviceable condition.

2. That out of the sum of money which is the subject of an injunction in civil case 372/95 between John Manui and the Defendant the sum of $209,925.62 or such amount as the court thinks fit to be transferred into an account in the joint names of the parties solicitors until further order.
   
3. That the Plaintiffs bulldozer in the possession of the Defendant be returned to the Plaintiff in Honiara at the Defendant’s expense forthwith."
   

As to the order sought in paragraph (1) of the Summons seeking leave to amend the Writ of Summons filed on 16th December, 1996, I am satisfied leave should be granted.

As to the order sought in paragraph (2) of the Summons, I am not satisfied that this can be granted in the circumstances of this case. The proceeds of sale of log exports currently under restraining orders in Civil Case No. 372 of 1995 is already the subject of a dispute between the parties in that case. The deductions permitted by the court in that case are in respect of reasonable expenses incurred in the course of felling, extracting, hauling and transportation, and export of the said logs. The claim in this case is for outstanding hire charges but which are disputed apart from the sum of $50,000.00; being hire charges for two months at the rate of $25,000.00 per month. The claim of the Plaintiff being disputed at this stage, it would not be proper in the circumstances to have those proceeds paid out into a trust fund in Counsels names in this case. It should be borne in mind that the Plaintiff in Civil Case No. 372 of 1995 claims ownership of Ndai Island and therefore if at the end of the day, he succeeds in winning his case, then the Defendants may be liable for damages for trespass and or conversion to a greater amount than what is currently restrained in that case. On the other hand, if the Defendants in that case should win their case, then the Plaintiff in this case would be in a stronger position to seek restraining orders in respect of whatever proceeds are left. Of-course those proceeds in turn would be subject to further restraining orders pending determination of this case. I am not satisfied therefore that the order sought for should be granted in the circumstances of this case.

As to the order sought in paragraph (3) of the Summons, I do not consider it necessary or that any useful purpose would be served, for a court order to be issued when it is clear from the submissions of learned Counsels that the bulldozer has not been used for sometime now and is merely sitting idle on Ndai Island. Also that the Defendant does not in any way seek to prevent the removal and transport of the said bulldozer back to Honiara. In fact, there had been an attempt once to remove the bulldozer from Ndai Island but without success. Mr Kama had made it clear in his submissions that the Plaintiff should assist in having the bulldozer removed. I see no difficulties with such a request for the Plaintiff to have its bulldozer removed and then claiming for the costs of removal and transportation. It seems clear at this stage that the agreement between the parties is now at an end, and that the parties should now consider it so in view of the fact that there is no longer any logging activity taking place there, despite what parties may want to think otherwise.

ORDERS OF THE COURT:

1. Grant leave for the Writ of Summons to be amended as sought in paragraph (1) of the Summons filed on 29th November, 1996.
   

2. Deny order sought in paragraph (2) of the said Summons.

3. Deny order sought in paragraph (3) of the said Summons.

4. Costs of this application to be borne by the Applicant.

THE COURT