Australia and New Zealand Banking Group Ltd v Tobata [2020] SBHC 18; HCSI-CC 63 of 2015 (28 February 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Australia and New Zealand Banking Group Ltd v Wale Tobata
Citation:
Date of decision:	28 February 2020
Parties:	Australia and New Zealand Banking Group Limited v Wale Tobata
Date of hearing:	15 July 2020
Court file number(s):	63 of 2015
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia PJ
On appeal from:
Order:	Accordingly, the application to sell the property is granted. Bank to sell to Mr. Molea, as per tender offer. Cost to the Bank
Representation:	Mr. A Radclyffe for the Claimant Mr. G Fa’aitoa for the Defendant
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IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 63 of 2015

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
Claimant

V

WALE TOBATA
Defendant

Date of Hearing: 15 July 2019
Date of Ruling: 28 February 2020

Mr. A Radclyffe for the Claimant
Mr. G Fa’aitoa for the Defendant

RULING ON APPLICATION TO SELL PROPERTY

Keniapisia PJ;

1. On 28/05/2015, Faukona J entered judgment, but suspended for 3 months, to give the defendant, a last chance, to pay off the debt. On 3 May 2016, I gave eviction orders, so defendant could vacate the property, to allow claimant to sell the property.
2. On 19/10/2018, claimant applied to sell the property to Mr. Toata Molea, for $1,000,000.00 dollars. Claimant submitted, after tendering the property on the open market, the only response was $1 million dollar offer from Mr. Molea. Claimant want to take the offer from Mr. Molea. Defendant strenuously opposed to any sale to Mr. Molea for two reasons. First, defendant’s property is valued in excess of $7 million dollars. And must not be sold for a less value of $1 million dollars.
3. Second, Mr. Molea was not a good neighbour. And was part of the difficulty, that defendant had gone through, resulting in among others, the difficulty, for defendant to sell the property at higher value, because, Mr. Molea had blocked the road access to defendant’s property.
4. So the defendant do not want to see the Bank sell his property to the person, who contributed to his difficulties and down fall. At first instance, I thought defendant’s argument hinges on “good faith” and “bad faith” dealings in contract. The relationship between the Bank and Mr. Wale was one of contract. And parties in a contract are obliged to deal with each other in “good faith” at all times. So I called for further written submissions from counsel on “good faith”. Counsel for the defendant did not file any further written submission, to date.
5. Counsel for the Bank in his further written submission, argued that the court has no ground for refusing the application. Claimant is entitled to the fruits of its judgment. Counsel was right. Litigants are entitled to the fruits of their litigation.
6. It is rather unfortunate that Mr. Wale is making allegations, now at the wrong time. He should have filed a defence and raised those issues (first and second issues at paragraphs 2 and 3). Court will then properly investigate the issues at trial. Now that the bank has judgment (by default), Mr. Wale cannot raise those issues just to block sale to Mr. Molea. To do so would be to deny the Bank, the fruits of its judgment.
7. Accordingly, the application to sell the property is granted. Bank to sell to Mr. Molea, as per tender offer. Cost to the Bank.

THE COURT
JOHN A KENIAPISIA
PUISNE JUDGE