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Midlink Marketing Aust Pty Ltd v Tetangare [2009] KIHC 26; Civil Case 72 of 2006 (1 July 2009)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

HIGH COURT CIVIL CASE 72 OF 2006

BETWEEN:

MIDLINK MARKETING AUST PTY LTD
PLAINTIFF

AND:

BANIKARAWA TETANGARE T/A CIVIC MART
DEFENDANT

For the Plaintiff: Ms Taoing Taoaba
No Appearance for the Defendant:
For the Claimant, Sefanaia Tuusi: Mr Banuera Berina

Date of Hearing: 25 June 2009

JUDGMENT

On 5 January 2007 by consent, I entered judgment for the plaintiff in this action for $38,571.00 including costs.

On 31 May 2007 Ms Taoaba, acting for the plaintiff/judgment creditor applied for a writ of fieri facias. The writ was issued on 7 June.

The action comes before the Court on an interpleader summons issued by Mr Berina on behalf of Sefanaia Tuusi who for some time had possession of a Toyota Windom motorcar (which it is acknowledged is the vehicle the subject of the proceedings).

Some time after the issue of the Writ of fifa the Sheriff of the High Court, Eritaia Euroba, went to the premises of Boorau Teiora at Abarao. He had information that a Toyota Windom car belonging to the defendant/judgment debtor was there.

Boorau gave evidence. He fixes broken vehicles. Banikarawa had some time before the Sheriff’s visit – maybe up to two years before – left the car with him for repairs. Banikarawa was to return with the necessary parts for the repairs. Banikarawa never did return and the car remained with Boorau. The Sheriff made two visits. Boorau said that on the first visit he was accompanied by a lady. [The Sheriff in evidence said he was on his own.] They shewed him a form from the High Court. The car would not go so they took the key and said they would come back to fetch the vehicle. The Sheriff did come back some months later in company with another, Taaneti:-

I gave the car to them as I was under the impression the man worked for the High Court. They didn’t bring key. They opened it their way. Changed the wheel. Towed it away.

Boorau has not been paid any money by anybody in relation to the car.

I accept the accuracy of Boorau’s evidence. [I need make no finding on whether the Sheriff was alone or in company with a lady on the first visit although I am inclined to think that he was accompanied.]

Eritaia Euroba:

I am Sheriff of High Court. Executing a Writ Fifa against Banikarawa. Visiting mechanic in Abarao, Boorau. Purpose – to get car with him: belonged to Banikarawa. Taaneti came second time. First visit I was by myself. No time I was with Perma. Key seized by Court: still with High Court.

First time I went and took car key. Told man to look after car as we were coming back for it. Car couldn’t move ..... 2007 to 2008 .....I was by myself. Went back and left key at office. A few months second visit: me and Taaneti. We took the car: not fixed. Took it to Taaneti: bought another tyre and put it on: towed it. Antenon. Supposed to take it to High Court: took it to Taaneti to fix it. Not my responsibility to have it fixed. Car left there. Told Taaneti to sell it. Told him I had won car by tender. ----- Car should have been taken back to the High Court. Still under execution of writ. Knew Taaneti had sold it, I received no money.

Xmm by Berina: Told Taaneti car belonged to office. Told him I had bought car..... Found car being driven by Sefanaia. I was upset. I seized a red car belonging to Taaneti in place of the other vehicle. Stayed in High Court compound for some months. My idea was when Sefanaia lost the car he could have the red car in its place, the one I had seized from Taaneti. I saw Sefanaia: told him he was driving my car. Told him I had won it at tender ..... Car seized by another from office. Now with Senior Registrar at her house.

I also accept the accuracy of Eritaia’s evidence (apart from the doubt as to whether he was accompanied on his first visit to Boorau or not).

The Sheriff acted correctly up to the time of his first visit to Boorau when he, in law, seized the car by taking the key. He should then soon after have returned, taken away the vehicle and put it up for auction. The proceedings of the sale should have gone towards satisfaction of the judgment debt.

The Toyota Windom car should now immediately be recovered by the High Court and put up for auction. It may well be that the vehicle is in a better condition than it was when the Sheriff, had he followed correct procedures in 2007, should have sold it. That is a fortuitous benefit for the judgment creditor.

Dated the day of July 2009

THE HON ROBIN MILLHOUSE QC
Chief Justice