Josephine v Bank of the Cook Islands Ltd [2022] CKHC 21; Civil Misc 10 of 2022 (7 September 2022)

IN THE HIGH COURT OF THE COOK ISLANDS HELD AT RAROTONGA (CIVIL DIVISION)

CIVIL MISC. NOS 10/2022 & 11/2022

BETWEEN NICHOLLE APII JOSEPHINE AKAITI-O-TE-RANGI AMA

First Applicant

AND GEORGE TAMARUA TELI AMA

Second Applicant

AND BANK OF THE COOK ISLANDS LIMITED

Respondent
LAND APP NO. 119/2022

IN THE MATTER of Section 3 of the Declaratory Judgments Act 1994

AND

IN THE MATTER of the land known as NGONGORE SECTION 11J, MATAVERA

AND

IN THE MATTER of a Deed of Lease dated 24 January 2018 between THE LANDOWNERS and TUKAKA GEORGE TAMARUA AMA and NICHOLLE APII AKAITI-OTE-RANGI JOSEPHINE AMA, GIDEON OTA-A-KII NGATI TUAITI TIKA-KITE-OPE AMA and GEORGE TAMARUA TELI AMA, assigned to GEORGE TAMARUA TELI AMA by a Deed of Assignment dated 7 November 2018

AND

IN THE MATTER of an application by BANK OF THE COOK ISLANDS LIMITED

Applicant

Hearing: 30 June and 17 August 2022

Counsel: Mr T Nicholas for the Ama family
Mr B Marshall for Bank of Cook Islands Limited (BCI)

Date of Judgment: 07 September 2022

RESULTS JUDGMENT OF THE HONOURABLE JUSTICE DAME JUDITH POTTER

This is a results judgement. Reasons for the judgement will follow.

Civil Misc. No. 10/2022: Application by Nicholle Api Akaiti-Ote-Rangi Josephine Ama (Nicholle) and George Tamarua Teli Ama (George) to recall orders made by Chief Justice Hugh Williams on 11 November 2019, granting leave to BCI to enforce the following securities in favour of BCI:

1. Deed of Mortgage dated 30 May 2018 over the first applicant's leasehold interest in the Deed of Lease dated 1 May 2018 over 2,177M² of the Te Aoroa section 110, Matavera, Rarotonga.
2. Deed of Mortgage dated 7 November 2018 over the second applicant's leasehold interest in the Deed of Lease dated 24 January 2018, over 1,791M² of Ngongore section 11J, Matavera, Rarotonga

is dismissed.

Civil Misc. No. 11/2022: Application by BCI to dissolve the interim injunction issued by Chief Justice Hugh Williams on 22 March 2022, on the ex parte application of the applicants, preventing BCI from settling the contract made on 1 February 2022 (which relates to the sale by BCI as mortgagee to John Parianos or his nominee of the leasehold interest of George secured to BCI by the mortgage dated 7 November 2018)

is granted.

Land App. No. 119/2022: Application by BCI for declarations under the Declaratory Judgments Act 1994 that:

1. The landowners are arbitrarily and unreasonably withholding their consent to the assignment of the leasehold interest of George secured to BCI by the mortgage dated 7 November 2018; and
2. The requirement to obtain the consent of the landowners to the assignment of the leasehold interest of George in the Deed of Lease dated 24 January 2018, vested in George by Deed of Assignment dated 7 November 2018, be dispensed with.

Declarations are made accordingly.

Costs are reserved.

__________________

Judith Potter, J