(Kabui, J): The
Plaintiff by an ex
parte Summons filed on 21st March, 2001, sou the following orders -
ote>
1.
That thp Resntnded oand or his Agents, Associations and
&nbssp;&nnbsp;;&nbssp;&nnbsp; <Assignees be restrained from
shipping the two containers of
&nnbsp;;&nspp;&nsp; &nsp;
laan="EN-US" -US" style="font-size: 12.0pt">timber referred to as
containe MLCU 265and CRXU
&nbbsp;
2733160 respectively, which are the propertthe
Appli
ass="rmal" style="text-indent: -14.2-14.2pt; mpt; marginargin-left-left: 14.: 14.2pt; 2pt; margimargin-top: 1; margin-bottom:
1">
2. ;&nbssp;&nnbsp;&bsp;&nsp;&nsp; That the
Applicant be alle allowed to take possession of the said containers of timber and
e theorted and or sold.
<
3. &nbssp; &nsp; Any ordeas this
Cour Court deems fit to make.
/p>
>
<
At the hearing of the ex
parte
Summons, Counsel for the Plaintiff, Mrs. Samuel, sought an amendment to the
Summons by inserting an order requiring
the proceeds of the sale of the
timber be deposited into an interest bearing deposit account in any of the
commercial
banks in Honiara in her name as the Solicitor for the Plaintiff.
Counsel also asked that the order for costs be costs in the
cause. The
Orders sought therefore became 1,2,3 and 4 as opposed to 1,2 and 3 above in
the original ex
parte Summons. I was told by Counsel for the Plaintiff. Mrs.
Samuel, that the matter was urgent so that the Defendant who is
in Gizo
could not be served. In fact, the annexure to the affidavit filed by Mrs.
Samuel on 21st March, 2001, did confirm that containers numbered
MLCU 2656141 and CRXU 2733160 were due to be shipped on the Kokopo Chief
in
the afternoon of the date of the Plaintiff�s Application. The matter was
indeed urgent. The ex
parte Summons was filed on 21st March, 2001
at 10:45 am and so it would have been difficult to serve the Defendant at
Gizo before lunchtime and the hearing
of the Application at 1:30 pm. I
granted the orders sought and said I would give my reasons today at 10:00
am. I do so
now.
Facts
Undeontract signed by the
Plaintiff and the Defendant on 2nd October 2000, the, the Plaintiff
provided the fund with which the Defendant was to purchase timber in the
Western Province.
Upon being exported, the Plaintiff would recover its
capital fund plus 20% of the profits. The balance of the profits would
be
shared between the Plaintiff and the Defendant on an agreed basis. In
accordance with the terms of that Agreement,
the Plaintiff provided to the
Defendant the sum of $100,812.00 for the purchase of timbers. The Defendant
did purchase
timber from Swift Shipping Division in the Western Province and
packed them in two containers and stored them at Noro awaiting
shipment to
Honiara for export. The Plaintiff paid $1,836.55 as storage charge at Noro.
The total volume of timber packed
in the two containers at Noro were 34.437
cubic meters of timber. On arrival at Honiara, the Plaintiff discovered that
the total volume of timber in the two containers were 54.04 cubic meters.
The two containers MLCU 2656141 and CRXU 2733160
are under the name of
Willisman Nori and not the Defendant. The Plaintiff claims that the timber
purchased with its fund
is its property and the Defendant has no ownership
rights to it.
lass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1">
This Application
The Plaintiff�s ex
parte
application was based upon a Writ of Summons together with a Statement of
Claim filed on 21st March, 2001. I found that there is a triable
issue between the Plaintiff and the Defendant. The Plaintiff also filed a
written undertaking on 21st March, 2001 for damages in the event
that the Court should rule in favour of the Defendant in the main dispute
between
the Plaintiff and the Defendant. In terms of balance of convenience,
the Plaintiff stood to loose its money if I did not grant
the orders sought
in its ex
parte Summons. The Plaintiff�s Application therefore succeeded. I
granted the Plaintiff�s application accordingly. For the sake
of
convenience, the orders I made are these �
1. p;&nbbsp;&nsp; &nsp; The respondent
and or his Agents, Associates and Assi are ained shipping anng and or
removing and or moving andg and or
transporting and or selling and or dealing with the containers of timber referred to as MLCU 2656141 and CRXU
2733160.
&nbp>
2. &nbssp;&nnbsp;&nsp; &nsp; The Applibe
allowed owed to take possession of the above mentioned containers and have the
timbers exported and or sold.
3. &nnbsp; nbsp; The proceeroceeds
s
of the sale of the timber be deposited into an interest bearing deposit
account
with any of the commercial banks in Honiara in the Solicitor�s name.
4. & p; bsp; Costs be in the
cause
 
p class=lass="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
F. Oui
Judge
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