ANZ Bank (Kiribati) Ltd v Murdoch (trading as BDV Co Ltd) [2023] KIHC 34; Miscellaneous Application 15 of 2021; Civil Case 31 of 2020 (10 November 2023)

IN THE HIGH COURT OF KIRIBATI

MISCELLANEOUS APPLICATION 15 OF 2021
HIGH COURT CIVIL CASE 31 OF 2020

BETWEEN:
ANZ BANK (KIRIBATI) LTD
Applicant

AND:
TOM MURDOCH T/A BDV CO. LTD
Respondent

Date of Hearing: 22 JUNE, 8 AUG, 31 OCT 2023
Date of Judgment: 10 NOVEMBER 2023

Appearances: Ms. Elsie Karakaua for the Applicant
Ms. Kiata Kabure for the Respondent

J U D G M E N T

1. This is an application for an order of committal against the respondent for failing to comply with the default judgment issued against him on 1 July 2020 for payment of the judgment debt of $512,482.65.
   
2. As per evidence in support of the application by one Katarina Taau, an officer of the Bank, there have been no payments made after the date of the default judgment except for the transfer of money from Tarsu Murdoch’s account in the sum of $375.30 and proceeds of the sale of the land listed for security which would be around $60,000 to $70,000. The judgment debt would be reduced to $442,107.35.
   
3. The applicant submitted that the respondent has made no effort to contact them regarding his means of payment or has refused payment. Therefore, he has failed to satisfy the judgment debt, hence his contempt of the court order.
   
4. The respondent argued that the applicant failed to make their case for a committal. Nothing in Katarina’s affidavit shows that the respondent has the means to pay his debt but refused to do so. The judgment of the High Court in the case of Rino Rawanteuea v David Pine Miscellaneous Application 58 of 2016 of High Court Civil Case 159 of 2007 was referred to in support of this argument.
   
5. I agree with the applicant’s submission that the application in Rawanteuea’s case was dismissed because of the error made in the application which referred to the Court Order dated 31 August 2015. This Order was an order granting leave to apply for an order of committal against the respondent; it is not an order which the respondent is obliged to comply with.
   
6. I also agree with the respondent that there is no evidence to show that the respondent has the means to pay but refuses to do so. However, this does not mean the respondent is not obligated to pay the judgment debt. He must find ways to pay for this judgment debt and should not expect a demand from the applicant. This is clearly stated in Order 45 rule 1(1) which is quoted below:
   

“Judgment or Order to be obeyed without demand.

Where any person is by any judgment or order directed to pay any money or to deliver up or transfer any property real or personal to another, it shall not be necessary to make any demand thereof, but the person so directed shall be bound to obey such judgment or order upon being duly served with the same without demand.”

7. In any event, when it is difficult to find means of payment, the applicant may also apply for an oral examination of the respondent to identify their means of satisfying the judgment debt or try other means of enforcement stipulated in the Rules.
   
8. For now, the application is denied.
   
9. I feel it is unfair to award costs to either of the parties—no order as to cost.
   

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice