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Radford v Miki [2018] SBHC 5; HCSI-CC 347 of 2014 (24 January 2018)

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION
(KENIAPISIA; PJ.)

Civil Case Number 347 of 2014

BETWEEN: RODGER RADFORD AND JANITA RADFORD - Claimants

AND: WILLIAM GEORGE MIKI AND LYDIA NEDI MIKI - Defendants

Date of Hearing: 2^nd November 2017.
Date of Ruling: 24^th January 2018.

Mr. B. Upwe for the Applicants/Defendants.
Mr. A. Radclyffe for the Respondents/Claimants.

RULING

Keniapisia; PJ:

Introduction

1. By application filed 3/10/2017, the applicants/defendants applied for determination of two preliminary issues pursuant to Rule 12.11. Once successful, the application brought under this Rule has the potential to resolve this matter without going to trial.
   

Issue 1: Claim is statute barred

2. Claimants’ debt recovery claim was filed in October 2014, for a debt that has accrued since 7^th November 2005, the applicants submit. This is about 3 years outside of the 6 years period allowed and prescribed by the Limitation Act (Cap 18). Section 5 of the said Act stated the general rule and provides for exceptions as follows:
   

“Except as otherwise provided in this Act, no action shall be brought, nor any arbitration shall commence, after the expiration of 6 years from the date in which the cause of action accrued."

3. Claimants/Respondents on the other hand rely on Section 30 (4) and (5) of the Act, as an exception to the general rule in Section 5. The exception states that an acknowledgment of a debt or part payment during the 6 years period means that time starts to run again. Counsel Radclyffe submitted that acknowledgement by Mr. Miki occurred in 2011 (in Miki’s letter dated 21/9/2011). Also part payments were made prior to that in 2007/2008. Court has seen evidences in support of these contentions.
   
4. On the materials and the law; Court will accept submissions by Counsel Radclyffe and distinguish the case authority relied on by applicants’ counsel. In that case^[1] money was not received by the claimant from the defendant directly or at all; during the 6 years limitation period. Here claimants did received monies/payments from defendants directly in 2007/2008; within the 6 years limitation period. As to acknowledgment of debt, claimants did receive acknowledgement of debt from defendants directly in 2011; also inside of the 6 years limitation period.
   
5. In De Good, a third party was involved, making the defendant company (who was sued) not a privy to the initial contract under dispute. And therefore no monies was received by the sued defendant company directly, during the 6 years limitation period. Additionally no acknowledgement of debt was received, because the sued defendant company took over ownership from a third party company and was awaiting license approval from the Foreign Investment Board, at the material time.
   
6. One of the approved license conditions was for the sued defendant company to pay all former creditors of the initial contracting company from whom the sued defendant company has taken over ownership. That license condition was not acknowledgment of debt; by the sued defendant company, the Court concluded. Furthermore that the case was not a normal debt recovery case, with the involvement of a third party company.
   
7. Debt is not statue barred, because the cause of action had accrued within the 6 years period from November 2005 by 2007/2008, with part payment and again in 2011, by acknowledgment through letter from defendant Miki. I find that with part payment and acknowledgment of debt; time starts to run again in 2011. By the time of filing claim in 2014, the debt had accrued 3 years only, into the 6 years limitation period.
   

Issue 2: Personal or Company debt

8. Evidence before the court is a mixture. There are evidences suggesting there was a company debt. Other evidences are pointing towards a personal debt.
   
9. Evidences that the debt is owed by defendant personally are: Exhibit AR 2 to A. Radclyffe’s statement filed 11/6/2015; Exhibit AR 4; letter from Miki to Janita dated 21/09/2011 and paragraph 5 of defence filed 4/11/2014.
   
10. As for the defendants, in support of their contention, that the debt was personal, the evidences are: Exhibits WM4, WM5 and WM6 of statement by Miki filed 4/6/2015.
    
11. Where the evidences are pulling in opposite direction, the proper thing to do is to have full investigation at trial, where these contradictory evidences will be properly tested.
    
12. Accordingly, the application is declined with costs on standard basis. This is a 2014 case. We must have a trial in the first quarter of 2018.
    

12.1. Application declined. Cost on standard basis, to be taxed, if not agreed.

12.2. Matter to be prepared for trial with haste.

THE COURT

JOHN A KENIAPISIA
PUISNE JUDGE

^[1] De Good –v- Star Harbour Timber Company Limited (1996 SBHC 6; HC-CC 276 of 1995 (7^th February 1996).