Solomon Islands Home Finance Ltd v Keru [2011] SBHC 60; HCSI-CC 379 of 2006 (12 August 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 379 of 2006

BETWEEN:

SOLOMON ISLANDS HOME FINANCE LIMITED
Claimant

AND:

DAVID BRADDLEY KERU
Defendant

Date of Hearing: 20 July 2011
Date of Judgment: 12 August 2011

P Tagini for the Claimant
D B Keru in Person

JUDGMENT

Mwanesalua J:

1. This is an application by the Claimant for issue of an instalment order authorising the satisfaction of the debt of $24,144.91 payable under orders of the court dated 17 September 2006 and 5 March 2008 respectively, by garnishing a quarter of the Defendant's salary per fortnight to pay off that debt.
   
2. The liability of the Defendant to pay such debt arose in this way. The Defendant loaned money from the Claimant on 9 October 1995, 4 September 1996 and 10 February 2000, to build his house on Parcel number 191-056-252 ("the Property"). The Defendant secured the three loans "the loan" by signing a charge over the property in favour of the Claimant. The Defendant has not made any repayment of the loan since he ceased his employment with the Claimant on 5 August 2002. Because of that, the Claimant filed an action against him on 22 September 2006. On 17 November 2006, judgment was entered against the Defendant pursuant to which the court issued orders, among others, that the Claimant have "2 (a) possession of the property comprised of and including the lease estate in Parcel No. 191-056-252 "the property; (b) the sum of $228,983.00 ("the debt"); and, " The Defendant pays the cost of and incidental to the proceedings." By February 2008, it became very clear to the Claimant that the Defendant could not repay his loan and interest by fortnight instalments from his salary. So on 5 March 2008, the court granted leave to the Claimant to sell the property. On 6 June 2008, the Claimant sold the property to Church of Melanesia Trust Board (In Corporated) for $280,000.00. After the sale, the Defendant still had a debt of $15,286.41 on his loan plus incidental cost of $8,858.50, in the total sum of $24,144.91 to pay. This debt remains unpaid to date.
   
3. The Defendant is currently a permanent employee of Solomon Airlines Limited at an annual salary of $29,229.00. His payslip for the period 11 June 2011 and 24 June 2011 shows, among other things: that his gross pay per fortnight was $1,811.45; tax $286.88; repayment of staff debt $250.00; advance loan repayment $420.00; share loan repayment $250.00; social club $167.00 and net cash $352.00 (amended in biro to $573.00). The amendment to this figure was not explained.
   
4. There is no dispute between the parties about the amount of debt to be paid by the Defendant. The issue between them is the rate of the Defendant's salary to be garnished per fortnight. The Claimant's position is that it seeks a court order to garnish a quarter of the Defendant's salary per fortnight. A quarter of the Defendant's salary per fortnight is about $143.25 or $286.50 per month. That means that it would take the Defendant close to ten years to fully repay his debt.
   
5. The Defendant contends that the payment at the rate of $143.25 per fortnight is too high for him. This is because he is a family man with two children. These children are attending school and he pays school fees for them. He says that he could merely afford to pay $100.00 per fortnight.
   
6. The Defendant seems to think during his submission that the Claimant should have sold the property at a higher price which would enable the settlement of his entire debt. That complaint is misconceived because the Claimant in fact sold the property to the entity which offered the highest bid for it. The other two bidders made lower offers for the property. The sale was made according to the bidding process. There was nothing wrong with it.
   
7. The Defendant is concerned about issuing an order to garnish $143.25 per fortnight from his salary to settle his debt with the Claimant. That is a genuine concern because it would further reduce his present net pay. However, he was content with the relatively higher deductions from his salary as revealed by his pay slip referred to above. He was silent about them during his submission to the court.
   
8. The court is of the view that he has an equal obligation to pay off his outstanding debt with the Claimant. It can be done by reducing the amounts of his contribution towards his social club and the repayment of his staff debt. The court will therefore grant the order to garnish $143.25 per fortnight of the Defendant's salary as sought by the Claimant. The Claimant has been waiting for payment of its debt for so long.
   
9. Order
   
   1. The sum of $143.25 be deducted from the Defendant's salary per fortnight by his employer and paid to the Claimant until the debt of $24,144.91 is fully repaid.
      
   2. Parties to pay their own costs.
      

THE COURT