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JAP Holdings Ltd v Naomane [2013] SBHC 46; HCSI-CC 52 of 2007 (29 April 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 52 of 2007

BETWEEN:

JAP HOLDINGS LIMITED
Claimant

AND:

ENOCK NAOMANE
First Defendant

AND :

EN TECHNOLOGIES LTD
Second Defendant

AND :

SOLOMON ISLANDS NATIONAL
PROFIDENT FUND BOARD
Third Defendant

AND :

AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED
Fourth Defendant

Date of Hearing : 20 March 2013
Date of Ruling : 29 April 2013

Mr. Keniapisia for the Applicant
Mr. Tigulu for the First and Second Defendants
Mr. Kako for the Third Defendant
Mr. Radcliffe for the Fourth Defendant

RULING

[1] This is an application by the Claimant filed on the 3rd of October 2012 to amend its claim and joinder of parties. The Claimant seeks the following orders: (1) Leave by the Claimant to amend its claim, as ordered by the Court of Appeal judgment in CAC 43 of 2012; (2) An order for EN Technologies Limited, Solomon Islands National Provide Fund and Australia and New Zealand Banking Group (SI) Limited to be joint as Defendants; (3) Leave for the applicant to apply out of time for amendment to its claim as ordered by the Court of Appeal judgment in CAC 43 of 2012; (4) Other orders deem fit by the court and costs in the cause.

[2] The Claim in this case was filed on 27 February 2007. The parties then were the Claimant and the First Defendant. There was no progress on the case for more than two years and was only revived when the Claimant applied for leave to prosecute the claim on 1 June 2010. Leave was granted by the court on 21 October 2010. Following the filing of further sworn statements, the case was heard by the court on 13 April 2011 and a reserved judgment was delivered on 31 October 2011. The court found for the Claimant and made the following orders in its judgment: 1. ANZ personal account number 14352 be frozen until further orders; 2. To account for all the Claimant's sales and receipts since 2003; 3. Damages for conversion limited to $500,000.00; 4. To comply with all the recommendations made by the auditor on pages 5 to 8 of judgment: 5. Pay costs of the Claimant on indemnity basis; vacate the Claimant's business office at the National Provident Fund at Anthony Saru Building in Honiara if the Claimant decides to start business again and 7. Return properties inclusive of cheque accounts belonging to the Claimant to the directors of the Claimant forthwith. The Defendant filed Notice of appeal on 3 November 2011 seeking to quash judgment in its entirety on nine grounds challenging all the orders made except the order to pay costs on an indemnity basis. Notice of cross-appeal was filed on 7 February 2012 challenging the imposition of the limit on the damages and the court's failure to give reasons for so doing, failure to make orders requiring the Defendant to account for profits made by ENT and to order the refund by ENT of the Claimant's property.

[3] The Court of Appeal heard the appeal on 28 March 2012 made an order without judgment on 30 March 2012 and delivered judgment with reasons on 14 August 2012, repeating its order of 30 March 2012 for completeness as follows: 1. Appeal allowed; 2. Reasons for judgment reserved on notice; 3. Judgement set aside; 4. Case remitted to the High Court for trial by a different judge; 5. Any application to amend the claim and for possible joinder of further parties to be filed and served within 14 days of delivery of this court's reasons for judgement; 6. Costs of this appeal to be paid by the respondent subject to any written submissions filed within 14 days of these order. (29 March 2012); and 7. Costs of these proceedings in the previous trial in the court below to be determined by the judge in the fresh trial at the conclusion of that proceeding.

[4] Orders 5 as set out above is relevant in this application. That order requires that any application to amend the claim and possible joinder of further parties be filed and served within 14 days of the delivery of reasons by the Court of Appeal. That means 14 days from 14 August 2012 when judgment with reasons was delivered. It is apparent from the High Court stamp at the top of the application that it was filed on 3 October 2012. Further, it also clears from the first page of the application that it was set for hearing at 9.30am on 1 November 2012. Order 3 of that application sought leave to amend the claim out of time.

[5] The First Defendant opposed the application stating that the allegations sought to be pleaded in the amended claim occurred ten years ago and the amended claim filed on 28 August 2012 was a new claim altogether and should be struck out. The Third Defendant acknowledged receipt of the amended claim and indicated that it would file a defence within 28 days. It filed its defence on 3 October 2012. The fourth defendant opposes this application because, among other things that the amended claim filed on 28 August 2012 was filed without leave and that the claim was time barred.

[6] That Claimant says that lateness to fully comply with order 5 was due to misreading of the same. Its amended application filed on 3 October 2012 was aimed rectifying that mistake.

[7] Mr. Keniapisia says that the application was not filed in time because they misunderstand order 5. This application is an amendment of that application. The defendants did not deny that position. That position remains and they accept it.

[8] There is no dispute that the amended claim filed on 28 August 2012 was done without leave. That does not comply with the court Civil Procedure Rules of 2007. But non-compliance with the Rules is merely an irregularity and does not render the amended claim a nullity. Amended claim is therefore still valid unless the Claimant seeks further amendments of the same. This application is therefore granted.

Orders:

1. The Defendants to file defences or amended defences within 14 days from 29 April 2012.
   
2. The Claimant to file reply 14 days thereafter.
   
3. Costs in the cause.
   
4. Case to be mentioned at 9.30am on 29 May 2013
   

THE COURT