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Walalau v Dora [2011] SBHC 171; HCSI-CC 377 of 2009 (30 November 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 377 of 2009

BETWEEN

BROOK HUGH WALALAU
(Representing the Walalau Family Tribe)
Claimant

And

HENRY RUDOLPH DORA
Defendant

Mr Tigulu for the Claimant
Mr Nimepo for the Defendant

Date of Hearing: 8th November 2011
Date of Judgment: 30th November 2011

Judgment

1. The Claimant's initial claim was based on the hire of a chainsaw. The Claim was dated 1st October 2009 and served on the Defendant on 9th October 2009. Judgment in default was entered on 12th November 2009. It was eventually set aside by the Court of Appeal in October 2010. An Amended Claim was filed on 15th November 2010 and served shortly thereafter. A Defence was filed on 3rd December 2010. It is a relatively simple dispute, the Claimant says there was an oral agreement for hire, the Defendant says the chainsaw was on loan.

2. The Amended Claim did not materially change the initial claim. It has always been the Claimant's case that sometime in 2007 the parties entered into an oral agreement for the hire of a Stihl 090 chainsaw at the rate of $250 a day. The Defendant did not pay anything to the Claimant in respect of the hire. In a draft defence dating from around November 2009 and more or less repeated in the Defence to the Amended Claim the Defendant says there was no hire agreement and the Claimant agreed to lend him the chainsaw. It was understood the Defendant would borrow the chainsaw, use it for some time and then return it. On returning the chainsaw the Defendant would give the Claimant "some reward or a token of appreciation". The draft defence also rather coyly says," the chainsaw is not in the Defendant's possession at present" but does not give any indication where it is. Nothing is said about the whereabouts of the chainsaw in the latest defence.

3. The Amended Claim is more detailed and describes how the chainsaw was acquired by the "family tribe" in 2004 through their then member of Parliament. It was hired out to the general public and to members of the family at more favourable rates ($200.00). Sometime in early 2007 the "head" (meaning the chainsaw less bar, chain and other attachments) was fully serviced by UMW (SI) Ltd in Honiara. In his Defence to the Amended Claim the Defendant denies the chainsaw was serviced. The Defendant also denies he is a businessman although in his sworn statement filed 8th September 2011 he describes himself as "Company Director". The Claimant says there was some discussion round about July 2007 when it was agreed the chainsaw would be hired by the Defendant at the rate of $250 a day. It was going to be used at the Defendant's logging operation at Aola on Guadalcanal. The agreement was to start in August 2007. The Defendant denies any such agreement to hire. He asserts there was discussion and an agreement but it was to the effect he would "borrow" the chainsaw, use it for some time and then return it. He would then give the Claimant a "reward" or a "token of appreciation as a form of goodwill either in cash or in kind".

4. The Amended Claim recites approaches being made to the Defendant for payment and how eventually the Claimant started sending invoices. The Defendant admits receiving a number of invoices from about August 2009. He says he refused to respond to them, "..based on the fact that amounts of monies demanded were not part of the arrangement between the Claimant and the Defendant". The Claimant says he was paid $1,500.00 in July 2009 and the Defendant agrees a "goodwill" payment was made. In evidence both agreed the $1,500.00 was in respect of a family obligation and had nothing to do with the arrangement between themselves.

5. Directions were given but despite that no real evidence about the matter was filed until the sworn statement dated 8th September 2011 by the Defendant and one dated 31st October 2011 by the Claimant. The case came to trial on 8th November 2011. Both the Claimant and the Defendant gave evidence.

6. After hearing the Defendant in the witness box I have to say I found him to be evasive and unhelpful. Much of his evidence lacked any credibility. He wanted to portray himself as someone who was self-employed, a modest man. His reference elsewhere to being a Company Director has already been mentioned. When asked about the "omissions" from his sworn statements he explained that he was too busy moving in and out of the Country to instruct his lawyers properly. He did not explain what his frequent trips overseas were for. Hardly the picture of a modest self-employed man.

7. He was too ready to blame everyone else and took no responsibility for the situation he and the Claimant found themselves in. For example, in his initial draft defence he says words to the effect the Claimant said it was his own chainsaw and not owned by the family and so he (the Claimant) is guilty of misrepresentation. He does not explain why this "misrepresentation" has any bearing on a claim based on his failure to pay for and/or return the chainsaw. In his evidence he said he could not go to Aola on Guadalcanal because he is Malaitan and would not be safe. He does not amplify this point. It is implied the civil unrest on Guadalcanal meant he could not go to Aola. The arrangement which gave rise to this case was negotiated several years after the arrival of RAMSI. There was no widespread civil unrest on Guadalcanal in 2007. Certainly by 2009 when this case commenced and five years on from the arrival of RAMSI this excuse is very flimsy. He says in his sworn statement filed 8th September 2011, "....I acknowledged to my cousin Mr Walalau that due to factors beyond my control, my friend failed to return the chainsaw to me...". In other words the blame lay with his friend and Defendant was not at fault. When asked about the possibility of going to the police he answered he had thought about that in 2007, even 2008 and 2009 but took no action because to do might have ruined the chance of getting the chainsaw back. He did not expand on that explanation. It is difficult to understand why the involvement of the police would make it harder to get the chainsaw back. He repeats he was also being threatened because he was from Malaita. That point has been dealt with earlier.

8. He said in evidence he told the Claimant before the claim was filed that he would replace the chainsaw and/or if the original was returned to him by his friend he would return it to the Claimant. There is no indication of this either in his draft defence or the actual Defence filed. I accept the Claimant's evidence that no offer to replace the chainsaw was ever made until very recently, after the date when this matter was set down for trial but before trial.

9. The least credible evidence from the Defendant concerns the invoices sent to him and which he acknowledges he received. He says he ignored them and did not respond because they did not reflect what he thought was agreed. That seems most unlikely. If he did not agree with the invoices, if they did not accord with what he thought had been agreed surely he would have contacted the Claimant, who after all he says was a close relative, and said so. It defies logic that someone in his position would simply do nothing. The invoices and statements all contained telephone numbers (landline and mobile), an Email address and a fax number. It makes no sense at all for someone to simply ignore demands for payment and do absolutely nothing when they do not accept any payment is due.

10. The Claimant's evidence is far more credible. However, it is not even really necessary to rely on it to dispose of this case. The Defendant admits he was given possession of the chainsaw sometime in August 2007. According to his version of events he was going to borrow it, improve it and then return it to the Claimant. On his own admission he is unable to return it. Even on the basis of the arrangement he claims to have existed as he cannot return it he must replace it. The Claimant gave evidence a new chainsaw of similar kind would cost, in round figures, $21,000.00. The Defendant did not challenge that figure. Judgment will be entered against the Defendant for that sum. The Claimant is entitled to interest as well. Interest, at the judgment debt rate, should run from the date of the first invoice. At that time the Defendant could have either returned the chainsaw or agreed to the hiring. Interest on the sum of $21,000.00 will run from 16th August 2009 to the date of judgment.

11. The Claimant is also entitled to the loss of hire. As indicated above, the Claimant's evidence is to be preferred and there is no doubt the Defendant was aware the chainsaw was usually hired out and the Claimant was intending to hire it to him. The Defendant is liable to pay for the loss of hire from the time he received the chainsaw to the date that he could have returned it or agreed with the hiring as set out in the invoices [1]. The Defendant is liable to pay for loss of hire from 1st September 2007 (we do not know the exact date in August he took possession) until 16th August 2009. The Defendant did not dispute the Claimant's evidence the chainsaw was usually hired out at a rate of 200$ per week for family members and $400 per week for others. The Defendant merely said he was unaware the chainsaw was hired out, or as he put it he thought the chainsaw belonged to the Claimant, not the Walalau family tribe. As indicated above, I do not accept that. However, giving the Defendant the benefit of the doubt and accepting he is a "family" member, albeit from the female side, damages for loss of hire will be assessed at $200.00 per week. The period 1st September 2007 to 16th August 2009 is 102 weeks. The Defendant will pay damages for loss of hire of $20,400.00. Interest will apply to that sum from the date of judgment.

12. In summary, the Defendant will pay the replacement cost of the chainsaw of $21,000 plus interest from 16th August 2009 to date of judgment. He will also pay $20,400 for loss of hire. From the date of judgement interest at the judgment debt rate will apply to the total sum of the judgment.

13. The Defendant will also pay the costs of the Claimant. Those costs to be taxed at a standard rate if not agreed. In accordance with the order made by the Court of Appeal, the costs incurred in the Court of Appeal are to be paid by the Defendant to the Claimant as well.

Chetwynd J

^[1] See paragraph 10 above