Lam v National Bank of Solomon Islands Ltd [2001] SBHC 19; HC-CC 004 of 2001 (12 April 2001)

HIGH COURT OF SOLOMON ISLANDS>

Civil Case No. 004 of 2001

DANNY LAM AND ISABELLA LAM

v

p class=lass="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> NAL BANK OF SOLOMON ISLANDS LIMITED

High Court of on Islands

Before: F. O. Kabui, J

Civil Case No. 004 of 2001

Hearing: 10^th April 2001

Judgment: 12^th April 2001

C. Ashley for the Appellant B. Titiulu for the Respondent

class="Mso="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> JUDGMENT

(Kabui, J): This is an application for leave to appeal brought by the appellants under rule of the Court of Appeal Rules 1983. The grounds of appeal filed on 15th March, 2001 are as follows –

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1. ; Tue Corrt ein r in refusinfusing to exercise its discretion to extend time for the 1st Defendants to file De in the eve befhe ourt hat there was a viable defence for the cahe case tose to proc proceed teed trial rial and;

2. &nbssp; &nsp; The Court errea by ing a ng a narrow construction of its discretion thereby not facilitathe attainment of justice in that-

(a) ; s there was evidence that the Appellants had fully repaid the first two (2) loans and already making payments of $10,000.00 each month towards the third (last) loan, and

(b) thep;there was evidence that the value of the Appellants property was $486,000.00 and that justice would not be attained if the property would be sold for half of its true value.

The Notice of Appeal filed on the same date also contains the same grounds of appeal. Counsel for the appellants, Mr. Ashley, argued that the Notice of Appeal had complied with the conditions specified in rules 10, 11 and l2 Rules 1983. He said the Court should therefore grant leave accordingly. Counsel for the Respondent, Mr. Titiulu, opposed the application for leave on two grounds. First, the appeal was in fact calling for the Court to revisit the trial judge decision based upon the evidence before the trial judge. Second, the appeal would no longer serve any useful purpose because the highest bidder for the property had already withdrawn her bid due to delay caused by this litigation. The leading authority in this jurisdiction on this matter is Price Water House & Others v Reef Pacific Trading Limited (Civil Appeal No. 4 of 1995). In that case, the Court of Appeal said that what the Court should look for in the grounds of appeal was whether or not there were merits in them and not whether or not the grounds of appeal would succeed. I would apply this guide to this application. What then are the merits of the grounds for leave to appeal in this case? Clearly, the appellants do believe that they had a defence and time should have been extended to permit them to file n the evidence before the trial judge. The fact of the case was that there was no evidence to prove Mr. Lam's allegation that there had been a verbal agreement to vary the manner of repayment of Loans No. 1, 2 and 3. The Defendant denied such variation of the manner of repayment of the three loans. It was Mr. Lam's words against those of the Plaintiff. I decided to believe the plaintiff because it denied Mr. Lam's allegation and was entitled to be repaid its own money borrowed by the appellants. It is all too easy to allege a thing without the slightest evidence of proof. In such a situation, there would be nothing to say in the absence of prima facie evidence. That is to say, there would be no prima facie defence on the record. The same is true of the second aspect of the alleged defence regarding the charging of interest. There was no evidence to prove the agreement which was breached by the Plaintiff in charging the incorrect interest. The fact that the highest bidder wishing to buy the appellant’s property has withdrawn her offer to buy does not prevent the plaintiff from calling for further tenders for the purchase of the property. However, this would also allow the appellants some breathing space to pay of their loans with happy ending to the parties in this dispute. Having said all I have said, I feel that this lurking question of a prima facie defence in setting the aside default judgments in this jurisdiction ought to be settled by the Court of Appeal in a little more detailed in what does constitute a prima facie defence or the disclosure of a triable issue in the context of this application for leave to appeal and for the purpose of a general guide. I would say the grounds for leave to appeal do have merit in this context. The applicant is therefore granted leave to appeal.

p class="Mso="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> F.O. Kabui

Judge