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Biabe v Bintang Mining SI Ltd [2024] SBHC 161; HCSI-CC 334 of 2024 (5 December 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 334 of 2024

BETWEEN:

STEWARD BIABE
(Representing himself and Aguluai family group of Rennell Islands, Solomon Islands
Claimant

AND:

BINTANG MINING SI LIMITED (IN LIQUIDATION UNDER COMPANIES INSOLVENCY AND RECEIVERSHIP)
First Defendant

AND:

RICHARD ALBARRAN, RICHARD LAWRENCE, CAMERON SHAW,
YUEN TSZ CHUN FRANK -APPOINTED LIQUIDATORS
Second Defendant

Date of the Hearing: 5 December 2024
Date of Ruling: 5 December 2024

Ms S Avicks for the Claimants
No Appearance for the First and Second Defendants

RULING

1. This is the ruling on the Application of the claimant for leave to institute proceedings pursuant to Clause 4 of Schedule 5 of the Companies (Insolvency and Receivership) Act 2009) (“Insolvency Act”) and for service of Claim overseas pursuant to Rule 6.45 of the Solomon Islands (Civil Procedure Rules) 2007 (“Rules”).
2. The Defendant is a company incorporated in Solomon Islands. On 13/13/21 it was placed in voluntary liquidation pursuant to the Companies (Insolvency and Receivership) Act 2009 (“Insolvency Act”). Messrs Richard Albarran, Richard Lawrence and Cameron Shaw of Hall Chadwick Chattered Accountants were appointed liquidators of the Defendant (“Liquidator”). The address of the liquidator is Level 40, 2 Park Street, Sydney NSW 2000- Australia. The email address of the Liquidator is jlee@hallchadwick.com.au.
3. The Claimant in the application wants to seek leave from the court to commence proceedings against the Defendant who is in voluntary liquidation pursuant to the Companies (Insolvency and Receivership) Act 2009.
4. The Claimant also wants leave pursuant to rule 6.45 of the Rules to serve the Liquidator at its address on Level 40, 2 Park Street, Sydney NSW 2000- Australia.
5. The Claimant has filed a further Amended Category B claim on 31/10/24 for special damages for land rentals of the sum of SBD1, 824,000.00, Security, labour and maintenance the sum of SBD1, 254,000.00 and an order for possession of equipment stored in the premise of the claimants and sale of the same to cover the special damages.
6. The claim of the claimant is based on a campsite land rental agreement they signed with the Defendant for 2 campsites, Angalua topside and Angalua seaside for the sum of SBD20, 000 for each campsite. The claimants complained that Defendant has not being paying rents of the campsites which at the time of filing the claim is 57 months.
7. The claimants also claimed that the Defendant left trucks and equipment’s on the campsites of the claimant. The Claimants have been providing security looking after those trucks and equipment’s and maintaining them. The Claimant complained that the Defendant has not paid them for providing security in looking after those trucks and equipment and maintaining them at the campsites.
8. The first issue for the court to determine in the application is whether the court can grant leave for the claimant to commence legal proceeding against the Defendant who is in liquidation.
9. The Companies (Insolvency and Receivership) Act 2009 (“Insolvency Act”) is the law that regulates company that are in liquidation in Solomon Islands.
10. Clause 4 of Schedule 5 of the Insolvency Act states, “With effect from the commencement of the liquidation of a company, a person must not, unless the liquidator agrees or the Court orders otherwise, commence or continue legal proceedings against the company or in relation to its property.”
11. The material facts of the statement of case of the Application, further amended claim and the evidence in the sworn statement Steward Baiabe filed on 22/8/24 in support of the Application shows that the Defendant was placed in liquidation therefore requires leave of the court pursuant clause 4 of schedule 5 of the Insolvency Act.
12. The statement of case of the application, the claim and the evidence of Steward Biabe referred to hereof also establishes cause of action of breach of agreement which caused damage to the Claimant. In the circumstance I am satisfied that leave should be granted to claimant pursuant to clause 4 of schedule 5 of the Insolvency Act for the claimant to commence this proceeding against the Defendant and its property.
13. The second issue is whether the court can grant leave to the claimant to serve the claim overseas on the liquidator of the Defendant.
14. Rule 6.5 of the Rules regulates service of claim and other process outside of Solomon Islands. It states that “ the Court may order that a claim or other process be served outside Solomon Islands, on such terms and conditions as it considers appropriate, if the court is satisfied that the court has jurisdiction in the proceeding, the party seeking leave has a good and arguable case for the relief sought by the party in the proceeding, and: (to the fact that are relevant to the application before me)
    • (a) The claim concerns land or other property in Solomon Islands; or
    • (b) An Act of Parliament, deed, will, contract, obligation or liability affecting land or other property in Solomon Islands is sought to be interpreted, rectified, set aside or enforced; or...
    • (c) the claim concerns a contract made in Solomon Islands or governed by the laws of Solomon Islands; or
    • (d) the claim is based on a breach of contract committed in Solomon Islands, whether or not the contract was made in Solomon Islands.
15. As I already find on the statement of case of the application, the evidence in the sworn statement of Steward Baiabe filed on 3/9/24 and the Further Amended claim in discussing the first issue above that the cause of action on breach of contract was established to the effect that the High Court has jurisdiction and that the claim concerns the matters set out in rule 6.5 (a),(b),(f) and (g) set out above I am satisfied that leave should be granted to the Claimant to serve the appointed Liquidator of the Defendant, Hall Chadwick Chattered Accountants on the address Level 40, 2 Park Street, Sydney NSW 2000- Australia and on the email address jlee@hallchadwick.com.au.

Orders

1. Leave is granted to the Claimant to commence this legal proceeding against the Defendant.
2. Leave is granted to the Claimant to serve the claim and other process in this proceeding outside of Solomon Islands on Hall Chadwick Chattered Accountants on the address, Level 40, 2 Park Street, Sydney NSW 2000- Australia and the email jlee@hallchadwick.com.au.
3. Cost is the cause.

DATED this 5th of December, 2024.
By the Court
Hon. Justice Michael Collin Pitakaka
Puisne Judge of the High Court