Home | Databases | WorldLII | Search | Feedback High Court of Solomon Islands

National Bank of Solomon Islands Ltd v Lam [2000] SBHC 40; HC-CC 174 of 2000 (25 October 2000)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 174 of 2000

NATIONAL BANK OF SOLOMON ISLANDS

V

DANNY LAM, ISABELLA LAM & MICHAEL DAVIES MANESONIA

High Court of Solomon Islands
(F.O. KABUI), J)

Hearing: 25th October 2000
Judgment: 25th October 2000

B. Titiulu for Plaintiff
Defendants not present

JUDGMENT

(Kabui, J): By Notice of Motion, filed on 1^st August 2000, the Plaintiff is asking this Court for the following orders -

1. The Plaintiff have leave to sell the First Defendant’s Fixed Term Estates in Parcel Nos. 191-007-40, 191-007-41 and 191-007-42 by tender;
   
2. No tender is to be accepted without the further leave of a Judge in Chambers;
   
3. The First Defendants immediately deliver vacant possession of Parcel Nos. 191-007-40, 191-007-41 and 191-007-42 to the Plaintiff;
   
4. The First Defendants, their servants, agents, invitees, licensees or others entering Parcel Nos. 191-007-40, 191-007-41 and 191-007-42 under the authority of the First Defendants forthwith vacate same and forthwith remove all their chattels from same;
   
5. The First Defendants, their servants, agents, invitees, licensees or others entering Parcel Nos. 191-007-40, 191-007-41 and 191-007-42 under the authority of the First Defendant be permanently restrained from entering the same.
   
6. The First Defendants pay the Plaintiffs cost of and in connection with this application.
   

The Plaintiff has taken this step to enforce its rights against the First and Second Defendants for the recovery of monies borrowed by the First Defendants, part of which was guaranteed by the Second Defendant. The Plaintiff filed a specially Indorsed Writ of Summons on 1^st June 2000 claiming the recovery of $24,375.85 being the first loan facility, $2,782.37 being the second loan facility and $255,767.50 being the third loan facility. The total indebtedness of the First and Second Defendants stands at $282,925.80. The Plaintiff also claims interest at the rate of 18% per annum from 19^th May 2000 up to the date of recovery of the outstanding debt. The Plaintiff also claims fixed costs of $180.00.

The Facts

The Plaintiff is the National Bank of Solomon Islands (“the NBSI”). In January, 1996, the NBSI lent $26,000 to the First Defendants at the rate of 16.25% interest per annum. Repayment was to be $1,280.00 per month for a period of 2 years. On or about 18^th January 1997, a charge was registered over parcel Numbers 191-007-40, 191-007-41 and 191-007-42 as security for the repayment of the sum borrowed. In April, 1998, the Plaintiff again lent to the First Defendants $30,000 at the same interest rate of 16.25% per annum. The repayment was to be $1,480 per month for a period of 2 years. The charge over the above three properties was varied accordingly in October, 1998 to cover this additional loan facility. In September, 1998, the Plaintiff lent to the First Defendants $250,000 again with the same interest rate of 16.25% per annum. The repayment was to be $5000 per month for a period of 7 years. This loan facility was guaranteed by the Second Defendant. Again, in October 1998, a charge was registered over parcel Number 191-019-79 as security for the repayment of the loan. By September, 1999, it became clear that the First and Second Defendants were no longer able to repay the loan facilities that were granted to them by the Plaintiff. As of 30^th May 2000, the First and Second Defendants owed the Plaintiff the respective sums of money set out in the Plaintiff’s statement of claim. The First and Second Defendants having failed to enter Appearance to the Writ of Summons filed against them, the Plaintiff applied and was granted a judgment in default of appearance on 10^th July 2000 for the amounts of money claimed by the Plaintiff in its statement of claim. As the Second Defendant is dead, the Plaintiff’s Notice of Motion is now being aimed at the 1^st Defendants only.

Relief being sought

As is always the practice in these sorts of cases, the Plaintiff has come to the Court to enforce the charge that had been executed in its favour, by the 1^st Defendants under section 171(1) of the Land and Titles Act (Cap. 133). This section states –

“171. (1) A charge may be enforced upon application to the High Court, and not otherwise.

(2) Upon any such application, the Court may make an order –

• (a) empowering the chargee or any other specified person to sell and transfer the interest charged, and providing for the manner in which the sale is to be effected and the proceeds of the sale applied;
  
• (b) empowering the chargee or any other specified person to enter on the land and act in all respects in the place and on behalf of the owner of the interest for a specified period, and providing for the application of any moneys received by him while so acting; or
  
• (c) vesting the interest in the chargee or any other person either absolutely or upon such terms as it thinks fit, but such order shall, subject to subsection (5), not take effect until registration thereof:
  

Provided that no such order shall be made in respect of a person who is not a Solomon Islander.

(3) ........
(4) ........
(5) ........”

In this case, there is uncontradicted evidence that the 1^st Defendants had borrowed monies from the Plaintiff upon the security of parcel Numbers 191-007-40, 191-007-41 and 191-007-42 being charged in favour of the Plaintiff. There is also unchallenged evidence that the 1^st Defendants have failed up to date to repay the borrowed monies to the Plaintiff under the terms and conditions of the loan facilities agreed between them. I am satisfied that the 1^st Defendants owe monies to the Plaintiff which must be repaid immediately by the sale of the properties charged in favour of the Plaintiff. I therefore grant the orders sought by the Plaintiff in its Notice of Motion filed on 1^st August 2000. That is to say, I order that –

1. The Plaintiff have leave to sell the First Defendant’s Fixed Term Estates in Parcel Nos. 191-007-40, 191-007-41 and 191-007-42 by tender;
   
2. No tender is to be accepted without the further leave of a Judge in Chambers;
   
3. The First Defendants immediately deliver vacant possession of Parcel Nos. 191-007-40, 191-007-41 and 191-007-42 to the Plaintiff;
   
4. The First Defendants, their servants, agents, invitees, licensees or others entering Parcel Nos. 191-007-40, 191-007-41 and 191-007-42 under the authority of the First Defendants forthwith vacate same and forthwith remove all their chattels from same;
   
5. The First Defendants, their servants, agents, invitees, licensees or others entering Parcel Nos. 191-007-40, 191-007-41 and 191-007-42 under the authority of the First Defendant be permanently restrained from entering the same.
   
6. The First Defendants pay the Plaintiffs cost of and in connection with this application.
   

I order accordingly.

F.O. Kabui
Judge