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Tung Shing Development Ltd v Yim Kwok [1995] SBHC 112; HCSI-CC 66 of 1995 (7 June 1995)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No.66 of 1995

TUNG SHING DEVELOPMENT LIMITED

-v-

YIM KWOK, JOHN GARO AND JUSTIN AGOFI TRADING AS JAY WILLIAMS EXPORTERS
AND AFEALA MILLING LIMITED

High Court of Solomon Islands
(Palmer J.)
Civil Case No. 66 of 1995

Hearing: 31st May 1995
Ruling: 7th June 1995

J.C. Corrin for Plaintiffs
A. Radclyffe for Defendants

PALMER J.: There are two summons for consideration before me. One was filed on the 29th of May, 1995, on behalf of the Plaintiff, for approval of payment of monies due to the Plaintiff for the use of its machinery in the felling, extraction, transportation and exports of the said logs at the Fe’efata log pond at West Kwaio, Malaita.

The second was a cross-summons for approval of payment of expenses also incurred in the felling, extraction, transportation and export of the same logs at the same log pond.

I will deal with the summons of the plaintiff first.

Three affidavits have been filed in support, two by Paul Ng, filed on the 22nd of May and 29th May, 1995 and the third one by Johnson Ramoga filed on the 29th May, 1995.

In the affidavit of Paul Ng filed on the 22nd of May, 1995 at paragraph 2, he states that the Defendants used the machinery supplied by the Plaintiff to the Joint Venture Company, to fell and transport the logs to the log pond.

At paragraph 3, he states that the machines used were two D7G dozers, and two 980 B loaders. He also adds that the charges for the use of those machines was $35,000 per month per machine for a total period of 8 months from August 1994 to March 1995. The amount due to the Plaintiff therefore would be SBD1, 120,000. (i.e. 35,000 x 4 x 8).

Unfortunately, there is no evidence of any agreement as between the Plaintiff and J. V. Company and or the Defendants stipulating the use of such machines at the rate specified. There is no dispute that the above machines were supplied, but that these were done pursuant to the Joint Venture contract dated the 25th June, 1993 (see Article 4, paragraph 4.3, Article 10, paragraph (6,) and the Loan Agreement dated also the 25th June, 1995, in particular see clause (1)).

In the Statement of Claim filed by the Plaintiff on the 3rd March, 1995, the claim made against the Defendants essentially was based on breach of the above contract. It is correct as submitted by Ms Corrin, that the claim for payment of rental charges for the use of the above machinery was never pleaded. But even if the question of payment of reasonable expenses is considered and that the above claim as filed in the summons of the 29th May, 1995 could have been considered, there is no evidence of an agreement that the above machinery were being leased on the terms as described in the affidavit of Paul Ng filed on the 22nd May, 1995. On that ground the summons should be dismissed.

Also, it should be pointed out that having raised in the Statement of Claim issues relating to the J.V. contract, it is not open at this stage in the absence of supporting evidence to raise new issues pertaining to hire charges for use of the machinery of the Plaintiff unless these have also been specifically pleaded.

I now turn to consider the cross-summons of the Defendants. The amounts claimed for approval are set out in detail in exhibit “BD1” attached to the affidavit of William Arthur Dyer filed on the 23rd May 1995.

INVOICE 454/95 Item 1.

Claim for $10,000.00 for entry fee, access to Fe'efata Log Pond and Ano Ano Bay.

Two letters have now been filed in support of this claim. The first one is dated 8th December, 1994 and addressed to Toowando Lands Association. It is executed for and on behalf of that Association by John Geniinia and Paul Andrew Foasi. The amount paid was $4,000.00. I am now satisfied this amount should be approved.

The second payment claimed is for $6,000.00. That letter is also dated 8th December, 1994, but addressed generally to the Rightful Owner. Who that Rightful Owner is not known. There are six signatures, but their names cannot be identified. Also the identity of the tribes on whose behalf they have executed that document for and on behalf of, is not known. Accordingly, I will not approve this payment at this stage.

Item 2.

These relate to Shell Pacific Invoice 01-20170. 09th December 1994 for $6,996.64 and Shell Pacific Invoice 01-20645.22 Dec. 94 for $9,756.60.

Invoice 01-20170 for $6,996.64 is approved. I have not been able to locate the invoice 01-20645 in the bundle of documents filed in support. Accordingly that amount is denied.

Item 6.

This relates to invoice no.1474 for $1,885.30. The invoice is dated 30/12/94 and relates to various freight charges incurred in October and November of 1994. I am satisfied this amount is justified and approval is granted.

Item 9.

This relates to shared Charter of barge and tugboat of Dalsol Limited as per receipt no. 2644 dated 30/12/94. I am satisfied the amount of $2,000.00 is justified and approval is granted.

Item 8.

This relates to replacement steel cables for Komatsu D65E-8 delivered to Bina harbour in the sum of $2,139.95. I am satisfied this amount is payable.

Item 3

This is invoice no. 2044 and dated 13/12/94, being log marking paint for Fe’efata Log
Pond in the sum of $311.04. I am satisfied this amount is payable.

Item 4.

This relates to invoice no. 14874 from L.K.P Hardware Ltd dated 13 December, 1994 for a replacement tape measure, for use at the Fe’efata Log Pond, for $46.45. I am satisfied this amount is payable.

Total amount approved for payment under invoice 454/95 is $17,379.38. The management fee claimed for 20% is denied.

INVOICE 456/95.

Item 2

This relates to shell invoice No.20972, dated 5th January 1995 for $8,047.19.
I am satisfied this amount is due.

Item 6.

This relates to the airfare in Solomon Airlines from Honiara to Auki return for $166.00. It is claimed that this was used for W. Dyer to accompany the Log Buyer on the initial inspection of the logs at Fe’efata Log pond. Unfortunately, the photocopy of that ticket submitted for my perusal is not clear. Accordingly, this amount is denied at this stage.

Item 8.

This relates to rations supplied for the workers engaged in the logging operations totalling $536.10 from Ana’s Canteen. I am satisfied this is due and payable.

Item 9.

This relates to invoice 9424 dated 24/1/94 from Q.Q.Q. for mosquito nets. I am not satisfied this should be deducted as part of the expenses from the sale proceeds of the logs.

Item 11.

This relates to the S.I.G. Radio Licence fee of $1,050.00, as per receipt no. B448922. This was to enable communications to be maintained between Afeala, West Kwaio, Malaita and Honiara. I am satisfied this is an essential part in any logging operations, to ensure that communication can be maintained at all times, especially if accidents occur. This amount is approved.

Item 12.

This is Shell Pacific Invoice 01-21793 for lubricating oil and grease in the sum of $1,518.50. I am satisfied this amount is due and payable.

The total amount payable therefore under invoice 456/95 is $11, 151.79.
No claim for management fee is approved.

INVOICE 458/95

Item 2.

This relates to invoice no. A44690 dated 2nd February, 1995 in the sum of $533.95. I am satisfied that this amount is a justifiable expense.

Items 3 & 8.

These relate to invoice nos. 01-22086 dated 3rd February, 1995 and 01-22470 dated 13th February, 1995 in the sums of $10,530.85 and $12,864.36. I am satisfied these are due and payable.

Item 4.

Invoice no.51 dated 16/2/9 for the purchase of an O Ring kit from Discount Auto Parts for $320.00. This amount is approved for payment.

Item 5.

This is also approved - $274.60.

Item 9.

This amount of $163.49 claimed is approved.

Item 10

This is denied.

Item 12

The amount claimed for $503.10 is approved.

Item 13.

These are necessary equipment in the logging operation. The sum of $2,083.12 is approved.

Item 15.

The amount of $700.00 for freight charges for the Isuzu two tonne truck is approved.

Item 16.

This claim is for $185.65 for parts to fit the new tyre to the 980 B Log Loader used at Fe’efata log pond. I am satisfied it should be approved.

Item 17.

This claim for $89.00 should also be approved.

Item 19.

The amount of $1,117.82 and $986.38 are also approved.

INVOICE 458/95 Page 2

Item 2, 3, .4, .5 & 6

I am satisfied that these expenses should be deducted from the sale proceeds; totalling $6,010.00.

Total amount payable under Invoice 458/95 therefore is: $36,362.32.
No claim for management fee is allowed.

OTHER ITEMS

These are set out in more detail I believe in paragraph 9 of the affidavit of William Arthur Dyer filed on the 23rd of May 1995. I have considered all those payments and I am satisfied they should be paid out from the sale proceeds with the exception of the management fee;

(i) $1,248.00

(ii) 10,954.97

(iii) 776.70

(iv) 246.55

(v) 13,789.45

(vi) 12,578.78

(vii) 6,572.00
46, 166.45 less credit note from Shell Company for $8, 040.00
Equals 38, 126.45

The management fee claimed is denied.

Total amount approved for payment therefore is $103,019.94

(A.R. PALMER)
JUDGE