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Peters v Credit Corporation (SI) Ltd [2012] SBHC 24; HCSI-CC 469 of 2010 (23 March 2012)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 469 of 2010

BETWEEN:

HANS PETERS
Claimant

AND:

CREDIT CORPORATION (SI) LIMITED
Defendant

AND:

AARON GINA
Third Party

Date of Hearing : 7 December 2011
Date of Judgment : 23 March 2012

W Rano for Claimant
A Radclyffe for Defendant

JUDGMENT

Mwanesalua J:

1. The Claimant filed his claim against the Defendant on 16 November 2010. He seeks (1) damages of $70,000.00 for loss of property (bus); (2) damages for loss of business at the rate of $500.00 per day up until judgment at interest of 12%; (3) aggravated damages for deprivation of property; (4) interest of 12% per annum on the judgment sum and costs.
   
2. The Claimant and his wife bought a Toyota bus registered number AB2977 from Aaron Gina ("the Third Party"), for the sum of $70,000.00 on 18 October 2007 and used it to run public transport in Honiara. The daily income from the bus was $500.00 on average per day. In 2008 the Defendant confiscated the bus from the Claimant without notice, when the Third Party failed to repay his loan of $67,000.00 under a Bill of Sale with the Defendant.
   
3. The Bill of Sale provides, inter alia, that (a) in the event of default by the Third Party the Defendant could reposes the bus; (b) ownership of the Bus would remain with the Defendant until repayment in full of the loan; the Third Party had no right to sell or otherwise dispose of the Bus without the Defendant's consent. The Third Party was in default in that he failed to repay the loan. And that the Third Party did not obtain the consent of the Defendant to sell the Bus to the Claimant.
   
4. On 14 September 2011 after hearing Mr. Rano of Counsel for the Claimant and Mr. Radcliffe of Counsel for the Defendant, the court adjudged and ordered that (1) verdict be entered for the Claimant; (2) Damages for deprivation of property in the sum of $70,000.00 be paid within 7 days; (3) Claims for aggravated damages and loss of earnings be heard on a date to be fixed by the Registrar; and (4) the issue of whether cost should be paid on indemnity or standard basis be dealt with on the said date to be fixed by the Registrar. The court heard evidence from the Claimant himself and his witnesses, and submissions from Messrs Radclyffe and Rano on 7 December 2011.
   
5. As pointed out above, the court has already awarded damage for loss of the bus in the sum of $70,000.00. That occurred by order of the court on 14 September 2011 and perfected on 15 September 2011.
   
6. There is claim by the Claimant for loss of income through the confiscation and sale of the bus by the Defendant. According to evidence of the Claimant, he normally earns an income of $500.00 per week and income of $7,500.00 per month. He claims loss of income for part of 2008 to end of 2011. The loss of income to the Claimant for that period was calculated to be $337,500.00. This loss of income seems to be speculative but the fact is that it was based on income received before the bus was removed from the Claimant. The court does not have any doubt that the amount would have been earned between 2008 and 2011. The Claimant ensured that he would run his business for that period by putting new parts to the bus.
   
7. The Claimant was unaware that the bus was subject to a Bill of Sale when it was confiscate from him at a garage in Honiara. He was then deprived of possession and ownership of the bus when the Defendant removed the bus from the garage. He therefore sought exemplary damages for loss of the bus. However, this was not pleaded as required and therefore such damage will not be awarded.
   
8. The Claimant seeks interest of 12% for the judgment sum in this claim. Having considered this interest carefully, the court holds the view that interest should only be paid at the rate of 5% as provided for under the Solomon Islands Courts (Civil Procedure) Rules 2007.
   
9. The Defendant is to pay the Claimant's costs, inclusive of the assessment of damages.
   

Order:

1. The Defendant to pay $70,000.00 to the Claimant if not already paid.

2. The Defendant to pay $337,500.00 to the Claimant for loss of income subject to tax.

3. The Defendant to pay 5% interest on total judgment sum to the Claimant.

4. The Defendant to pay the Claimant's costs inclusive of assessment of damages on standard bases.

THE COURT