National Bank of Solomon Islands Ltd v Chan Sui Hung Queendie [2000] SBHC 26; HC-CC 163 of 2000 (19 July 2000)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 163 of 2000

NATIONAL BANK OF SOLOMON ISLANDS

–v-

CHAN SUI HUNG QUEENDIE
(Trading as New World Store)

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

Hearing: 18th July 2000
Judgment: 19th July 2000

Mr B Titiulu for the Plaintiff
Defendant not in Court

JUDGEMENT

(Kabui, J): This is a straight forward case of indebtedness. The Plaintiff by a specially indorsed writ claimed the sum of $153,678.37 against the Defendant plus interest at the rate of 18% from 17 May 2000 until the date of payment of its debt. The Plaintiff also claimed $180.00 fixed cost. The Defendant failed to file an appearance within 14 days specified in the writ. The result was that the Plaintiff moved to enter judgement in default of appearance against the Defendant as it was entitled to do under the High Court (Civil Procedure) Rules 1964 (the High Court Rules). The default judgement was entered against the Defendant on 9 June 2000 for the sum of $153,678.37 plus 18% interest and $180.00 fixed costs.

The Facts

The Defendant being a business woman borrowed the sum of $65,000 from the Plaintiff being the National Bank of Solomon Islands (“the NBSI”) in about May, 1995. The loan repayment on this loan commenced on 3 September 1995. The security for the repayment of this loan was the creation of a charge over Parcel No. 191-013-176 for the maximum sum of $185,000. By May, 1996, the time the charge was executed, the Defendant’s indebtedness to the Plaintiff was in the sum of $105,000.00. In about December, 1995, the Defendant again applied for another loan of $60,000 plus further loan facilities to the extent that a second charge was created over Parcel No. 191-018-208 as security for the maximum sum of $225,000.00. By November, 1996, the time the second charge was executed, the Defendant’s indebtedness to the Plaintiff was in the sum of $185,000.00. On 15 October 1999, the Plaintiff demanded the full payment of $150,477.86 within 14 days. By 17 May 2000, the total indebtedness of the Defendant stood at $153,678.37. The Defendant has failed to pay.

Relief being sought

The Plaintiff has now come to the Court to enforce the charges executed in its favour by the Defendant. The Plaintiff is entitled to do this under section 171 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)..........”

By Notice of Motion filed on 30 June 2000, the Plaintiff asks for the following orders –

1. The Plaintiff have leave to sell the Defendant’s fixed Term Estates in Parcel Nos. 191-013-176 and 191-018-208 by tender;
   
2. No tender is to be accepted without the further leave of a Judge in Chambers;
   
3. The Defendant immediately deliver vacant possession of Parcel Nos. 191-013-176 and 191-018-208 to the Plaintiff;
   
4. The Defendant, her servants, agents, invitees, licensees or others entering Parcel Nos. 191-013-176 and 191-018-208 under the authority of the Defendant forthwith vacate same and forthwith remove all their chattels from same;
   
5. The Defendant, her servants, agents, invitees, licensees or others entering Parcel Nos. 191-013-176 and 191-018-208 under the authority of the Defendant be permanent restrained from entering Parcel Nos. 191-013-176 and 191-018-208;
   
6. The Honiara City Police Commander and all Police Officers under his direction forthwith upon receipt of any order made pursuant to orders 4 and 5 hereof shall attend and enforce the said order using such force as it reasonably necessary for such purpose upon request by the Plaintiff or its Solicitor;
   
7. The Defendant pay the Plaintiff’s cost of and in connection with this application;
   
8. Such further or other order as this Honourable Court shall seem fit.
   

I am prepared to grant orders 1, 2, 3, 4, 5 and 7 above. I refuse to grant order 6. The penalty for non-compliance with order 3 above is a suit for a writ of possession under Order 49 of the High Court Rules whilst the penalty for non-compliance with Order 4 is proceedings for contempt of Court under Order 61 of the High Court Rules. I have therefore refused to make Order 6. There is also no need for me to make any more order under 8 above. In the result I order that –

1. The Plaintiff may sell the Defendant’s fixed-term estates in parcel Nos. 191-013-176 and 191-018-208 by public tender;
   
2. No tender result is to be accepted without the further leave of the Court;
   
3. The Defendant immediately deliver up vacant possession of parcel Nos. 191-013-176 and 191-018-208 to the Plaintiff;
   
4. The Defendant, her servants, agents, invitees, licensees or others entering parcel Nos. 191-013-176 and 191-018-208 under the authority of the Defendant forthwith vacate the same and forthwith remove their chattels from the same;
   
5. The Defendants, her servants, agents, invitees, licensees and others entering parcel Nos. 191-013-176 and 191-018-208 under the authority of the Defendant be permanently restrained from entering parcel Nos. 191-013-176 and 191-018-208.
   
6. The Defendant pays the cost of this application.
   

F.O. Kabui
Judge