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Sasape Marina Ltd v Ulawa Ugi Community Development Fund [1990] SBHC 5; HC-CC 080 of 1989 (27 February 1990)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 80 of 1989

SASAPE MARINA LTD

v.

ULAWA UGI COMMUNITY DEVELOPMENT FUND
and JOHN WILIKAI (trading as Malagua Shipping)

High Court of Solomon Islands
(Ward C.J.)

Hearing: 26 February 1990
Judgment: 27 February 1990

J. Corrin for the Plaintiff
A. Radclyffe for First Defendant
P. Watts for Second Defendant

WARD CJ: This is a claim for work done by the plaintiffs on a vessel owned by the second defendant and chartered by the first defendant.

Liability for the sum is admitted by the second defendant and admitted in part by the first defendant.

By the charter agreement the first defendant was to pay $3500 per month to the second defendant. However, as the second defendant already had very substantial debts with the plaintiff, there was some doubt whether the latter would release the vessel. Thus it was part of the agreement between the first defendant and the second defendant that $2500 of the charter payment should be paid directly to the plaintiff and the remaining $1000 be paid to the second defendant in $500 instalments.

The witness called for the first defendant, Mr Waena, explained that he had spoken to the plaintiffs about this and they agreed to allow the vessel to be used as a result. A letter was sent by him to the Chairman of the plaintiff confirming such an arrangement although the final sum of $2500 was fixed subsequently to that letter.

I accept that evidence and I accept that the plaintiffs were aware of that arrangement and that the purpose was to allow the vessel to be used by the charterers.

Miss Corrin, for the plaintiffs, urges that both defendants are jointly liable for the full sum.

In view of Mr Waena's evidence I cannot accept that. Although it was the first defendant that requested the repairs to the vessel, I am satisfied that they knew the repairs were the responsibility of the second defendant. The whole tone of the letter from Mr Waena suggests such an understanding and Mr Waena confirms that in his evidence.

During the charter of the vessel, it was frequently out of action because of structural and mechanical failure. Mr Radclyffe for the first defendant suggests that, during that time, the portion to be paid to Sasape should not be paid. I cannot accept that. Whether the actual charter fee was still payable at such a time is a matter between the first and second defendant. There is no suggestion that the plaintiffs were ever party to such a suggestion. Even if they had been, the Court has heard no evidence to establish the extent of any such breakdown.

Mr Waena's evidence was that the whole arrangement was made after discussion with Mr Wilikai and the plaintiffs. I accept that the plaintiffs were aware of the fact that he was to be liable for the repair and the second defendant admits such liability.

I find for the plaintiff's against the defendants. The liability of the first defendant to the plaintiff is limited to any unpaid portion of the monthly payments of $2500.

There appears to be no dispute that a total sum of $27,500 was due. Of that, $10,500 has been paid and a sum of $4,257.23 was also owed by them to the first defendant and should be deducted.

That leaves a total sum of $12,242.77 and I give judgment against the first defendant for that sum.

The second defendant admits liability for the whole sum claimed of 52,360.20 and I give judgment against him in that sum.

Interest is claimed and I must consider the appropriate period.

The writ was not filed until late in 1989 but payment was clearly due on invoices supplied at the dates pleaded.

I shall order that interest is payable on this sum from the date the charter was effectively terminated by the second defendant's seizure of the vessel on 7th December 1988 up to judgment at 10%.

I shall hear counsel on costs.

(F.G.R. Ward)
CHIEF JUSTICE