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EMCO Pacific (SI) Ltd v Emmet [2011] SBHC 133; HCSI-CC 287 (2 November 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 287 of 2011

BETWEEN:

EMCO PACIFIC (SI) LIMITED
Claimant

AND:

ANITA EMMET
1st Respondent

AND:

RON DOUGLAS EMMET
2nd Respondent

Date of Hearing: 3 October 2011
Date of Ruling: 2 November 2011

Dr. P.Tagini for Applicant
Mr. W. Rano for Claimant
Mr. Pitakaka for Second Defendant

RULING

Mwanesalua J,

1. This is an application by the Defendants filed on 2 August 2011 to strike out the Claimant's claim filed on 27 July 2011.
   
2. In its claim the Claimant seeks: (1) that the First and Second Defendants be restrained from unlawfully interfering with the properties of the Claimant; (2) That the First and Second Defendants be permanently restrained from subjecting the assets of the Claimant to unnecessary expense; (3) that the First and Second Defendants be permanently restrained from dissipating the money currently held on trust from the sale of MV Buccaneer, money which is owned by the Claimant; (4) Damages for loss suffered by the Claimant from the proceeds of MV Buccaneer and the order subjecting the property in trust be discharged; (5) Damages for loss and inconvenience suffered by the Claimant for not being able to use its assets in full because of the orders sought by the Defendant; and (6) cost of this action against the First Defendant.
   
3. The grounds in support of the application to strike out the claim are that (a) the claim is an abuse of the court process; (b) the claim is frivolous and vexatious and (c) no reasonable cause of action is disclosed.
   
4. The First Defendant says that the claim is an abuse of the court process for the following reasons: (a) it is based on the same grounds that the application for joinder has been filed on 1 April 2011. Justice Chetwynd had considered the basis of the application of joinder, and had made a decision on the application. The appropriate step to take is to appeal Justice Chetwynd's ruling to the court of appeal and not to repeat the same action before the High Court; (b) the Second Defendant is a shareholder and director of the Claimant. He is the mind of the Claimant and files the claim, even naming himself as a defendant, in an attempt to subvert the court's direction to have the machines valued to determine the matrimonial property dispute; and (c) the Second Defendant has outstanding court orders in Civil Case No. 46 of 2008, yet he refused to comply with these and sought new orders which will effectively excuse himself from performing his current obligations but through another case.
   
5. The First Defendant says that the claim frivolous and vexatious for the following reasons: (a) the properties are subject of a matrimonial property and the Claimant has no business in matrimonial disputes as ruled by Justice Chetwynd; and (b) on that basis, the Claimant's claim is frivolous and vexatious.
   
6. The First Defendant says the claim discloses no reasonable cause of action because: (a) the properties are subject to matrimonial dispute and the Claimant is not a party to those proceedings; and on that basis too, the Claimant's claim does not disclose a reasonable cause of action.
   
7. The First and the Second Defendant were married prior to 1966. In that year, they incorporated Emmett Logging (SI) Ltd and transferred all their assets into that company. The Claimant held 50% percent of the shares of the company while the remaining shares were held by the Second Defendant. In 2003 the Claimant was incorporated as a trade name for Emmett Logging (SI) Ltd. The assets of Emmett Logging (SI) Ltd were transferred to that company. That forms the basis for the First Defendant claiming half of the value of the matrimonial property coming from Emmett (SI) Ltd into Claimant EMCO Pacific (SI) Ltd.
   
8. On 15 November 2008, the marriage between the First and Second Defendants was dissolved by decree absolute. On 13 July Justice Naqiolevu gave his ruling in civil case No. 46 of 2008. In His Lordship's ruling, he found the First Defendant, "the petitioner was entitled to distribution of the matrimonial properties. However, will not grant the declaration sought until the court is satisfied as to the individual proprietary rights of the parties to the matrimonial property under the proceedings".
   
9. The Second Defendant maintained throughout the matrimonial proceedings that the Claimant is the owner of the assets which the First Defendant is claiming as matrimonial property and that the First Defendant has no right to claim the properties. It would appear that the Second Defendant was so firm on this view that he chose not to comply with court orders in November 2010 to value the properties as the court ordered to progress the matrimonial proceedings.
   
10. On 1 April 2011, the Claimant applied to join the matrimonial proceedings, claiming that the properties in question belongs to the Claimant, therefore valuation should only be made on properties that are determined matrimonial properties. The application for joinder was refused by the court upon the merits of the joinder application. That is to say, the Claimant is not a party to the matrimonial proceedings.
    
11. The Claimant's claim is merely another route to enter into the matrimonial property proceedings. The matters and issues raised in the joinder application would be repeated in the claim filed by the Claimant on 27 July 2011.
    
12. The court notes the orders sets forth in its claim. They are aimed at curtailing and terminating the matrimonial proceedings before the court. The Claimant has an ulterior motive in filing its action. In view of this the Claimant has abused the process of the court. The action is previous and vexatious. And no reasonable cause of action is disclosed. The court notes that the Second Defendant failed to comply with orders in the matrimonial proceedings. Orders made by the court are meant to be followed, not neglected as the Second Defendant may have done.
    

Order: (1) Claim is strike out and dismissed.

(2) Claimant pays the defendants costs on indemnity basis.

THE COURT