In the High Court of Kiribati
Civil Jurisdiction
Held at Betio]
Republic of Kiribati

High Court Civil Case 99 of 2008

Between:

Hee Joong Yoon t/a Wellbeing Enterprises Ltd
Plaintiff

And:

David Pine t/a Mauri Marine Export Kiribati
Defendant

For the Plaintiff:Ms Taoing Taoaba
For the Defendant:Mr Banuera Berina

Date of Hearing: 23 November 2009

JUDGMENT

This action began in June 2008 as a claim by Mr Hee Joong Yoon (t/a Wellbeing Enterprises Ltd) for $178,400, alleged to be due as repayment of a loan for that amount by the plaintiff to the defendant, Mr David Pine (t/a Mauri Marine Export Kiribati). The claim was denied in the Defence: a Counterclaim made for the return of equipment alleged to be the property of Defendant (Plaintiff by counterclaim) and in possession of the plaintiff (defendant by counterclaim).

On 9 January this year the plaintiff was ordered to lodge by 17 April $10,000 as security for costs. No security having been given the plaintiff was non-suited on 23 April.

The action has proceeded on the counterclaim. [I shall continue to refer to the plaintiff and defendant as on the original claim.]

The circumstances in which this action has arisen are canvassed in earlier judgments of the Court of Appeal and of the High Court: see, for example, Attorney General iro Commissioner of Police v David Pine (CA 1/2008, judgment delivered 20 August 2008).

When the vessel was released to Mr Hee from arrest items of equipment which the defendant claims are his, were still on board. The counterclaim is for damages for the wrongful detention by Mr Hee of these items valued, in the Statement of Claim, at $27,400 and loss of income of $267,000 which Mr Pine alleges he could have generated if he had had their use.

The action was heard last Monday. The defendant did not attend: the reasons given being ill health and inability to stand up to the sea voyage from Kiribati to Tarawa. [Ms Taoaba tried hard to persuade me to grant an adjournment as she had earlier tried to persuade me to have the hearing on Kiritimati. Despite Ms Taoaba’s persuasiveness I refused her request for a further adjournment, having concluded that it was simply an attempt by Mr Hee to delay.]

The plaintiff gave evidence. He admitted having signed an agreement (it is Exhibit "C" to Mr Pine’s affidavit sworn on 
22 November 2009 which is Exhibit P1):-

Before leaving Kiribati on 26 February 2006 Yoon came to me suggested that as I was leaving Kiritimati Island he could give me a loan. I had not asked for a loan. He needed money so that when I came back from Tarawa we could proceed with the money he would be receiving on my behalf. He had to fax it – so I needed to sign. He persuaded me to trust him: he was trustee ….. He drew agreement. He received all equipment when boat returned. I called several times and spoke to Eritaia where Yoon was staying asking for the return of my equipment ….. He has my equipment. He claims to hold my equipment as security for the loan but there was no loan.

That evidence is uncontradicted. From my knowledge of Mr Pine, my observations of him in Court and the complete unlikelihood of the plaintiff’s allegation, I find well beyond the balance of probabilities that Mr Pine did not receive any money at all under the agreement. 

Mr Hee persuaded him to sign so that Hee himself might get money.

The only defence to the counterclaim is set out in paragraph 8 of the Defence to Counterclaim:-

8.	Paragraph 11 of the counterclaim is admitted in so far as admitting that the equipment has not been returned. However, the plaintiff avers that such equipments were given as security for the loan taken by the defendant and therefore such detention is lawful and/or justified.

That defence fails. 

It remains to identify the plaintiff’s items in the possession of the defendant. They are set out in paragraph 7 of the counterclaim and again there is a list (with values claimed) attached to Mr Berina’s letter of 26 September 2007 to Ms Taoaba. (Exhibit "A" to Exhibit P1):-

1.	2 dive compressors	(i)	$7,000 US	
		(ii) $12,000 US	
2.	25 dive tanks @ $150 US	$1,250 US	
3.	3 Yamaha 40 horse powered outboard
Engine @ $4,500	$13,500	
4.	1 Yamaha 15 horse powered outboard
Engine @ $2,200	$2,200	
5.	2 wooden boat (20 ft long) @ $4,000	$8,000	
6.	1 double hull outrigger (wa-uoua)	$3,000	
7	Deep freezer (3 x 2 deep)	$700	
			
	TOTAL VALUE
	US$20,250.00	
		AUD$27,400.00

Ms Taoaba in her reply of 27 September 2007 to Mr Berina (Exhibit "B" to Exhibit P1):-

From instructions, the following are the items on board my client’s ship Wellbeing and which are in his custody.

1.	2 wooden boats
2.	1 canoe
3.	2 motor for outboard (40hp)
4.	1 motor for canoe (15 hp)
5.	18 diver air tank
6.	Air compressor

Besides the defendant himself, Mr Berina called Mr Eritaia Reiti, a businessman on Kiritimati Island:-

Know Yoon. Stayed with me. Had items with him. Dive compressors – I saw one and heard of another from Yoon. Not used on my premises but it was elsewhere – he told me ….. Dive tanks used by Yoon’s employees – more than four. Outboard 40 hp engines x 4. 15 hp Yamaha engine. (2 wooden boats). Outrigger canoe. Deep freezers – 1 big, 1 small. Yoon is carrying on business – beche de mer and shark fin. Canoe gone to Fanning. Wooden boats + 1 fibre glass to Washington ….. I saw vessels delivered to Fanning and Washington.

I accept Mr Reiti’s evidence and rely on it.

In addresses counsel and I went through Mr Berina’s list as modified by the oral evidence (only 18 dive tanks, not 25) and came to a total value of $46,650, before allowance for depreciation. Allowing 20% for depreciation reduces the total to $37,480.

There remains the claim for loss of income the details of which are set out in Exhibit "F" to Mr Pine’s affidavit (Exhibit P1).

In David Pine v Attorney General iro Commissioner of Police (HCCC 70/2007) I said:-

The Solicitor General described the plaintiff (during his cross examination) as a "shonky businessman" and dishonest. I do not accept that he is "shonky" and dishonest. In the witness box David Pine struck me as frank, prepared to admit mistakes and omissions (or to explain them). I do not find him a dishonest man ….. Like many a plaintiff before him David Pine has tried to make every post a winning post: his claim has been much inflated. Besides my assessment of David Pine from his business history, I conclude he is a perennial optimist: always expecting his business ventures to turn out more successfully than they have.

Having heard Mr Pine’s evidence in this action, my assessment of him is still the same. I can use the estimates in his Exhibit "F" only in the broadest way for the reasons set out in the earlier judgment. Mr Pine’s estimates are speculative. On the balance of probabilities, however, I find that had Mr Pine had the use of the equipment he could have made a profit. "Wielding the broad axe" I allow $50,000 for loss of income.

That makes a total of $87,480 for which sum the defendant will have judgment.

THE HON ROBIN MILLHOUSE QC
Chief Justice