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Gemstar Seafood Ltd v Bycroft [2000] SBHC 77; HCSI-CC 370 of 1999 (23 February 2000)

CC 370 99 HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 370 of 1999

GEMSTAR SEAFOOD LIMITED

V

ROBIN BYCROFT

High Court of Solomon Islands
(Muria CJ)

Civil Case No. 370 of 1999

Hearing: 22 February 2000
Judgment: 23 February 2000

Charles Ashley for Plaintiff
Dennis McGuire for Defendant

MURIA CJ: On 11 November 1999, the plaintiff sought and was granted an ex parte injunction restraining the defendant and/or his solicitors from accepting any offer of sale as a result of the advertisement in the Solomon Star on 27 October 1999 and 8November 1999 for the sale of Pacel Nos. 097-005-147 and 097-005-93. The defendant now applies to have that order set aside.

The plaintiff company was incorporated in Solomon Islands and was formerly called Indian Pacific Seafood Limited (IPS) which owns Parcel Nos. 097-005-147 and 097-005-93 at Gizo, Western Province. The said parcels of land was said to be used by the plaintiff for its fishing operations. The defendant is a resident of Australia.

Although the amount is in dispute, it appears that the plaintiff owes some money to the defendant. It is pursuant to monies lent to the plaintiff by the defendant that a Deed or Acknowledgment of Debt and Forbearance dated 15 July 1999 was entered into between the defendant and plaintiff. By a letter addressed to the plaintiff through Misi & Associates dated 22 August 1999 the defendant demand repayment of $442,000.00. Todate, the defendant affirms that the plaintiff still owes him the sum of AUD410, 000.00

As the plaintiff failed to repay the sum owing, the defendant, through his solicitors, advertised the plaintiffs Parcels of land mentioned earlier, for sale. A sale by tender notice, was published on 27 October 1999 issue of the Solomon Star Newspaper. It was that tender notice that gave rise to these proceedings.

The question for the Court in this application is whether the order of the 11 November 1999 ought to be set aside or not. In support of the application to set aside, the defendant relied on the affidavits of Gregory Thompson and Robin Bycroft in particular, emphasis was placed on the Deed of Acknowledge of Debt and Forebearance. It was contended on behalf of the defendant that the Deed empowered the action taken by the defendant in advertising the land for sale. Counsel for the plaintiff, on the other hand, strongly argued that, the action of the defendant was a breach of the Land and Titles Act as well as the Deed itself.

It is not the function of the Court at this stage to go into the merit of the case in order to show whether or not the ex parte order ought to be discharged.

So the argument that the defendant was entitled to exercise his right under the Deed to sell the plaintiffs land by public tender or by auction cannot be adequately considered in an application such as this. That will have to wait until the substantive case is dealt with at the trial.

At this stage, all that the defendant needs to show is that the ex parte injunction should be discharged on one of the following grounds namely, that the ex parte order was improperly obtained or that it has an oppressive effect on the defendant or that the terms of the order have not been fulfilled.

In this case I do not think it can be said that the order was improperly obtained nor can it be said to have an oppressive effect on the defendant. The right of the defendant under the Deed to enforce his security over the money lent to the plaintiffs remains intact. On the other hand, if the defendant is allowed to sell the property at this stage, the then claim by the plaintiff that the arrangement for sale of the properties by the defendant was in breach of the Land and Titles Act and Deed would be defeated without it being determined by the Court.

The ex parte Order is necessary in this case to maintain the status quo. It does not disentitle the defendant from relying on his rights under the Deed while at the same time enabling the substantive claim by the plaintiff of beaches of the Land and Titles Act and Deed to be determined by the Court. The appropriate course to adopt would therefore be to allow the ex parte order to continue.

For those reasons the application to discharge the ex parte injunction granted on 11 November 1999 is refused. In order to facilitate the speedy settlement of this matter, I shall, in addition, make the following orders directing

1. Discovery of documents within seven (7) days from the date hereof;

2. Inspection within seven (7) days thereafter

3. Interrogatories (if any) within 14 days thereafter

4. Answers to interrogatories within 14 days thereafter

5. Matter to be set down for trial within 60 days thereafter with Certificate of Readiness and bundles of documents for the trial Judges.

I feel that these directions will assist in the’ resolution of this dispute as soon as possible.

There will be no order for costs in this application.

Sir John Muria
CHIEF JUSTICE