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Olsson v Solomon Time [2018] SBCA 8; SICOA-CAC 33 of 2016 (11 May 2018)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. The Appellants obtained a judgment against Solomon Time Limited in November 2009. The appellants were unable to enforce the judgment. Solomon Time was placed into liquidation in 2010.

2. The appellants have filed and been granted leave to continue enforcement proceedings despite the liquidation of Solomon Time.

3. On 15 April 2016 further leave was granted to continue the enforcement proceedings valid for a further 12 months. Later in April 2016 the appellants applied to join two other companies to the proceedings essentially to investigate whether assets had been improperly transferred from Solomon Time to them. The applications were refused by the High Court and in addition the Judge purported to refuse to renew the Enforcement Order. The appellants now appeal only against the refusal to review the Enforcement Order.

4. This case has a long and unfortunate history both in the High Court and this Court. But it is not necessary for us to traverse that history stand to resolve this case. That history has now been added to by the judgment of the High Court which is the subject of this appeal.

5. On 15 April 2016 the High Court made an order (described as a Perfected Order) that:

1. Leave be granted to the Enforcement Creditors, pursuant to clauses 4 and 6 of Schedules 5 of the Companies (Insolvency and Receivership) Act 2009, for the Enforcement Creditors to continue to exercise or enforce the right to recover the judgment debt, interest and costs from the Enforcement Debtor, notwithstanding the appointment of a Liquidator.
   

2. The following Enforcement Orders are hereby granted:

(a) The enforcement order shall be valid for 12 months from the date hereof.

• (b) The Sheriff be authorised to seize and/or sell and pay to the Liquidator any real and personal property in which the Enforcement Debtor or Respondent may have a legal or beneficial interest.
  
• (c) The amount recoverable under this order is:
  
  • (i) $995,000.00 for each Enforcement Creditor together with interest at $32,030.50 for the period 6^th November 2009 to 29^th June 2010 and thereafter at the rate of $136.30 per day until full payment;
    
  • (ii) Costs of trial of $46,750.00 and costs of the appeal of $15,000.00;
    
  • (iii) Costs of enforcement.
    

3. That the Enforcement Creditors are hereby granted leave to apply for other orders necessary for purposes of Enforcement, including orders for disclosure of documents.
   
4. The Enforcement Debtors and Respondent do pay costs of the application to the Enforcement Creditors in accordance with Schedule 3 of the Rules.
   

6. At the beginning of the Order it is dated 15 April 2016 however immediately before the Judge’s signature it is dated 15 April 2015. The seal of the Court has been affixed to the order and it is dated 15 April 2016 3:00pm together with (we presume) the Registrar’s signature. We are therefore satisfied that the date of the Order is 15 April 2016.

7. On 27 April 2016 the appellants sought orders from the High Court as follows:

1. An order that Island Gold Limited and Tavanipupu Island Resort Limited be joined as Second and Third Respondents to the enforcement proceedings and the application herein.
   
2. An order, pursuant to sections 21 and 22 of the Companies (Insolvency and Receivership) Act 2009, that:
   • (a) Full access rights be granted to the First and Second Enforcement Creditors to inquire into the affairs of Island Gold Ltd and Tavanipupu Island Resort Limited and to ascertain any use or transfer of assets or properties of the Enforcement Debtor to Island Gold Limited and Tavanipupu Island Resort Limited.
     
   • (b) The full access rights shall include access to all the financial, administrative, employment and asset/property records and inspection of fixed assets and properties Island Gold Limited and Tavanipupu Island Resort Limited, whether in their possession or control or of a third party, including banks and the Government.
     
   • (c) Any other order or directions to facilitate giving effect to the above orders as the Court deems fit.
     
3. Further and other orders as the court deems meet.
   
4. Costs in the cause.
   

8. The basis for the orders sought was set out in the application and sworn statements. On 8 September 2016 this application came before the High Court. It seems from the oral judgment then delivered the Judge was unaware of the orders he had made on 15 April 2016. In this September judgment the Judge considered whether he should grant an enforcement order. He decided not to. But as we have noted he had in fact already granted an enforcement which remained alive as at September 2016. The Judge then concluded that because there was no longer any enforcement order in existence no order joining other parties as sought could be made.

9. We are satisfied the Judge mistakenly refused the enforcement order when;

(a) Such an application was not before him and

(b) There was an enforcement order in existence dated 15 April 2016 as at the date of his decision of September 2016 granted by the same Judge.

10. There is a further background to this case that should be mentioned. In December 2011 the High Court granted the Olssons an enforcement order with respect to Solomon Times. On 2 November 2012 this Court in Pamela Kimberley, Island Gold Ltd and Tavanipupu Island Resort Ltd –v- William Frederick Olsson, Gloria Elizabeth Olsson and Solomon Time Ltd (CAC 12/2012) set aside orders of the High Court. This Court concluded the enforcement order of the Olsson’s had lapsed on 7 July 2011.

11. Rule 21.13 of the High Court Civil Rules provides as relevant

An application for renewal of an enforcement order:

(a) must be made before the order ends; and

(b) is made by filing in court:

• (i) a request for the order to be renewed for a stated period not longer than 1 year; and
  

12. A month or so after this Court’s decision in December 2012 the Olssons applied for an enforcement order. It is that application (much delayed) which was heard and determined in on 15 April 2016. The December 2012 application could not have been for a renewal of any existing enforcement order. This Court made it clear the enforcement order had expired on 7 July 2011. Rule 21.34 makes it clear a renewal had to be applied for before the expiry of the existing. The application of December 2012 was after the expiry of the existing enforcement order. The December 2012 application must therefore have been for a new enforcement order, not the renewal of an existing order. We heard no argument and therefore express no final view on whether a new enforcement order can be granted after the expiry of an existing enforcement order. However where an enforcement order has expired and a change of circumstances occurs relevant to enforcement there seems no reason (save limitation issues) why a new order could not be granted. In this case there was no challenge to the order of 15 April 2016.

13. Finally in the Court of Appeal case mentioned where an application under S6(1) Schedule 6 and S21 and 22 of schedule 7 of the Companies (Insolvency and Receivership Act 2009) is made that must be commenced under that legislation.

14. We therefore set aside the order of the Judge of 8 September refusing the renewal of the enforcement order.

15. We make no order as to costs in the circumstances.

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Goldsbrough P

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Hansen JA

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Young JA