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Timeon v ANZ Bank of Kiribati [2005] KIHC 47; 68-04 (14 June 2005)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Civil Case No. 68 of 2004

Between:

MARY TIMEON
TOOM TIMEON
Plaintiffs

And:

ANZ BANK OF KIRIBATI
Defendant

Dates of Hearing: 13 & 14 June 2005

For the Plaintiffs: Ms Botika Maitinnara
For the Defendant: Mr Birimaka Tekanene

REASONS FOR DECISION

At the end of a hearing on a preliminary point I gave my decision. I now publish my reasons for it.

Mary and Toom Timeon have sued the Bank of Kiribati. From the allegations in the Amended Statement of claim, supplemented by what I was told without objection from the Bar table, the substance of the claim is that the plaintiffs arranged for the defendant to make repayments of $65 per fortnight on their behalf to the Kiribati Housing Corporation. This was to pay off the balance a loan of $2,000 to Toom from Housing. The repayments were to run from 1993 to 1997. The Bank did not make any repayments: the loan remains outstanding. The plaintiffs assumed the loan was being or had been paid off until Housing made a demand on them for repayment in 2002. The writ was issued in December 2004.

Section 4(1) of the Limitation Act provides that,

“actions founded on simple contract or on tort” “shall not be brought after the expiration of six years from the date on which the cause of action accrued”.

The defendant has pleaded that

“the alleged cause of action did not arise within six years before” commencement of the action “and is barred by section 4(1) of the Limitation Act 2004”.

The cause of action arose at the latest in 1997. It is now, subject to any exception, statute barred.

Section 23(3) of the Limitation Act may be relevant:-

23. Where, in the case of any action for which a period of limitation is prescribed by this Act, ....
    
    • (c) The action is for relief from the consequences of a mistake, the period of limitation shall not begin to run until the plaintiff has discovered ..... the mistake ..... or could with reasonable diligence have discovered it:
      

Conceivably the plaintiffs may have been under the mistaken belief until 2002 that the Bank was making the repayments, indeed had finished paying off the loan to Housing with interest.

Mr Tekanene called Mr Atarake Tekaai who is now on contract to Housing as Lending Manager. In 1993 he was the Housing Loans Officer. He retired from the employment of Housing in the mid 1990’s. Through Mr Tekaai Mr Tekanene tendered the “Application Form House Loan” dated 1/8/90 for $2,000, a reference in favour of Toom Timeon supporting the granting of the loan and letters dated 21^st April 1993, 31^st January 1994 and the 3^rd February 1994 from Housing to Toom Timeon reminding him of the loan and that he had not made a repayment since April 2002. A final letter of demand was written on 18/11/03 claiming $2,366.63. There followed a summons dated 13^th April 1994. From the Bar table Ms Maitinnara told me her clients had received none of these documents. Mr Tekanene however tendered a letter Toom Timeon had written to Housing:-

I request extension of my time for payment of my loan to the end of this year 1994.

I shall proceed my repayment from July 1994 in the sum of $142.00 which should clear my loan.

This is owing to the fact that I am now unemployed and the obtaining of my repayments are from my meagre earnings so as to assist in the payment of my loan which is to be $142.00 a month.

I thank you if this request could be accepted by the Housing Corporation.

Toom’s letter is undated but from the offer to start repayments “from July 1994” I expect it followed on the service of the summons. I notice that in the letter there is no mention of the Bank having being responsible for making payments on behalf of the Timeons: the inference, from absence of any mention of the Bank or repayments of $65.00 per fortnight, is that there was no such arrangement. Yet the allegation in the Statement of Claim is that such payments should have begun the year before.

Mr Tekaai said that at first Toom Timeon had been paying $30 a fortnight. I find it difficult to believe that Toom did not receive any of the demands for payment from Housing or the summons. He certainly knew in 1994 that he was in arrear. I find that he probably did receive some or all of the letters and the summons. If he had ever been under the mistaken belief that the Bank was making payments on his and Mary’s behalf he had discovered his mistake “or could with reasonable diligence have discovered it” in 1994.

Ms Maitinnara handed up a document dated 25-1-93 in the form of a letter from Toom (the signature is difficult to make out but I assume it is his from the contents) to “The Chief Accountant, Ministry of Finance” authorizing deductions of $65 per fortnight and to credit them to a loan account at the Bank of Kiribati. No mention of an on-payment to be made to Housing. On the face of the document it is an authorization to make payments off their loan account with the Bank itself. I doubt if it had anything to do with the debt to Housing. In any case the authorization was given in January 1993. If it did have anything to do with the Housing loan Toom should have realised when he received the letters of demand that the Bank was not making payments off the Housing loan.

The plaintiffs have not shewn on the balance of probabilities that they were under a mistake that the Bank had an obligation to make repayments to Housing, let alone that it was a mistake which they could not have discovered with reasonable diligence.

The plaintiffs accordingly are not entitled to take the benefit of section 23(3) of the Limitation Act.

If the plaintiffs had acted with reasonable promptness after receiving the demand from Housing in 2002 they could have taken proceedings in time. As it was the limitation period of six years expired in 2003. By December 2004 their claim was statute barred.

The action is dismissed.

Dated the ................... day of June 2005

THE HON ROBIN MILLHOUSE QC
Chief Justice