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Tion v Court Appointed Manager (CBSI) [2011] SBHC 150; HCSI-CC 479 of 2010 (8 December 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 479 of 2010

BETWEEN:

ROSITE TION AND AGNESS TION
Claimants

AND:

THE COURT APPOINTED MANAGER (CBSI) OR DEVELOPMENT BANK OF SOLOMON ISLAND
First Defendant

AND:

ATTORNEY-GENERAL
(Representing Commissioner of Lands, Western Provincial Government, Noro Town and Country Planning board
Second Defendant

Date of Hearing: 18 November 2011
Date of Ruling: 8 December 2011

C. Ashley for Claimants
Keniapisia for First Defendant

RULING

1. This is an application by the Claimants filed on 1 April 2011. They seek the following Orders:

(1) That the Counter-Claim of the First Defendant be dismissed pursuant to rule 9.75(c) of the Solomon Islands Courts (Civil Procedure) Rules 2007 ("the Rules") as an abuse of the process of the Court in that the said Counter-Claim had been pleaded and strike Out in High Court in Civil Case No. 550 of 2004 ("the 2004 case") on 11 December 2009; and

(2) The First Defendant pays the Claimants' costs of this application on an indemnity basis pursuant to rule 24.12 of the Rules; and

(3) Any further Order the Court may deem fair and just.

2. In 2004 the Claimant filed Civil Case No. 550 against the Defendants, who are now the Claimants in this case Civil Case No. 479 of 2010 ("the 2010 case"). Civil Case No. 550 of 2004 was struck out by the Registrar of the High Court on 11 December 2009 under rule 9.72(d)[1] after the Claimant failed to take further steps in the claim under rule 9.71(a).

3. The main reason for this application is to strike out the First Defendant's Counter-claim for the reason that it was the same Counter-Claim being struck out in Civil Case No. 550 of 2004 on 11 December 2009. The Claimants contended that the re-litigation of that Counter-Claim is an abuse of the Court process.

4. The First Defendant opposed the application because there was no abuse of the Court process as the matters pleaded in this 2010 case are different from the matters pleaded in the 2004 case. The 2004 case and the 2010 are based on different causes of actions. The set of facts are different. These are fully set out in submissions of Counsel for the First Defendant in the 2010 case.

5. The 2004 case was struck out by the Registrar of the High Court because of non- progress of the case.

6. I have considered the submissions made by Counsel for the Claimants and First Defendant in this application and conclude that the facts and causes of actions in the 2004 case and 2010 case are different.

7. I accordingly refuse and dismiss the application.

Order 1: Application dismissed.

Order 2: The Claimant pay the First Defendant's costs of the application. Order accordingly.

THE COURT

^[1] Solomon Islands Courts (Civil Procedure) Rules 2007