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Lee Kwok Kuen & Co Ltd v Bartlett [2022] SBCA 8; SICOA-CAC 24 of 2021 (12 August 2022)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. In July 2007, Alex Bartlett, the respondent, filed a claim against Highway International Limited and Lee Kwok Kuen and Company Limited, the latter being the present appellant, seeking, inter alia, that the transfer document vesting Parcel Number 192-007-192 be declared invalid and the application to transfer be permanently stayed.
2. That matter was finally determined, after an unsuccessful interlocutory appeal in November 2017, with orders being taken out following judgment and perfected on 22 December 2017.
3. The orders made were: -
   • The claim is dismissed,
   • The Claimant to vacate Parcel no: 192-007-192,
   • The six buildings on Parcel no: 192-007-192 is owned by the Claimant,
   • An option for the Second Defendant to buy the buildings on a value price to be agreed by the Claimant and Second Defendant.
   • If no settlement is made by the parties for the sale of the buildings within six months as from the date of this judgment, the court will decide the method for the disposal for the properties or I will hear argument or submission for the disposal of the properties.
   • The cost is awarded to the second Defendant.
4. No appeal was filed and so the orders remain in force. After the six-month period during which settlement was expected, an application was made for assessment of damages by the respondent and an application to set aside orders 2, 3 and 4 was brought by the appellant. Both applications were heard together on 4 February 2019 with a decision being handed down on 11 February 2019. Both applications were dismissed. There is no appeal against either of those orders dismissing the applications.
5. At the same time as dismissing the applications, an order was made that the parties file a fresh application to allow submissions on the question of disposal of the buildings. That application was filed in December 2020, heard on 4 February 2021 and decision published on 31 August 2021. It is against that decision that this appeal is brought.
6. The decision of 31 August 2021 provided that the appellant should “pay the claimants buildings at a price of $10,000,000 or otherwise sell part of the land where the claimants houses are located to the claimant for a sum of $450,000.”
7. In support of that judgment, the judge found that there was evidence of both the value of the six houses and of the land. The judge pointed out that the original trial judge had found that the respondent owned the six houses. He therefore concluded that the appellant must either buy the houses or transfer the land on which the house were built to the respondent.
8. With respect to the judge, the time for buying the houses from the respondent had passed. An option to purchase had been provided by the original trial judge and the appellant had made clear its position that it did not seek to exercise that option. Thus, an order requiring the appellant to buy the houses was contrary to what was provided by the original orders. Equally, the alternative requirement that the appellant must sell part of the land in Parcel 197-002-197 went contrary to the original judgment which had separated the buildings from the land.
   1. After the six-months period fixed in the order set out at paragraph 3 of this judgment had expired, the only role remaining was for the court to decide the method of disposal of the properties. Disposal by sale had been available but rejected and disposal by subdividing Parcel 197-002-197 did nothing but defeat the original decision that the appellant acquired and was entitled to enjoy its land.
9. In that event, this appeal must be allowed. The judge did not consider disposal of the property as he as required to do, but merely canvassed again that which had already been canvassed.
10. This matter first came before the court in 2007, fifteen years ago. It has already been in the Court of Appeal once before during its lifetime as a claim. We are of the view that the matter needs to be drawn to a conclusion without further hearing if that is at all possible.
11. The orders made by the judge below cannot be allowed to stand, given the reasons set out in this judgment. The Court therefore enquired of counsel appearing on this appeal whether there was more than one option which could be considered by way of disposal of these six houses. If more than one option was available, this Court would be obliged to send the matter back to the High Court for a determination. Counsel, however, were unable to point to anything other than a single option, and therefore with nothing to consider by way of alternative, this Court determined to make a final order disposing of this matter as a more suitable alternative to remitting the matter back.
12. Counsel were invited to make further submissions on the terms of an order that the respondent remove his property within a period from the land of the appellant and thereafter vacate the land in compliance with the terms of the order of December 2017. It was noted that the respondent continued to house his employees within these houses. After some discussion the Court made an order in the terms set out in the following paragraph. Counsel for the appellant is to file a draft order reflecting those terms following delivery of this judgment.
13. The appeal is allowed. A period of three months is permitted for occupants of the six houses to move out and the respondent is to remove the six buildings which belong to him according to the decision of the High Court of 10 November 2017, perfected on 22 December 2017, on or before 9 December 2022 and deliver up to the appellant vacant possession of the land within Parcel 197-002-197 at that same time. In default of removal of the buildings as ordered within that time, the appellant is at liberty to remove the same by demolition. Costs of and incidental to this appeal are to be paid by the respondent to the appellant including certification for Queen’s Counsel to be agreed or assessed.

Goldsbrough (P)
Palmer (CJ)
Hansen (JA)