Pan Oceanic Bank Ltd v Kwalea [2022] SBHC 19; HCSI-CC 443 of 2020 (25 May 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Pan Oceanic Bank Ltd v Kwalea
Citation:
Date of decision:	25 May 2022
Parties:	Pan Oceanic Bank Limited v Mrs Nancy Kwalea, Mr Hundson Kwalea, Mrs Marilyn Maeta
Date of hearing:	14 December 2021
Court file number(s):	443 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. An order for Summary Judgment against the Defendants is made pursuant to Rule 9.64. 2. The Defendants are ordered to pay the Claimant the sum of $497,597 plus interest as set out in the loan agreement being 10% plus a penalty 3% on the outstanding balance from the date of filing the Application being 5 November 2021. 3. The Claimant is entitled to seek a further order for the sale of Parcel Number 191-039-377 if the Defendants have not paid the judgment sum within 30 days of this order. 4. The Defendants are to pay the costs of the Claimant on the standard basis.
Representation:	Mr C Fakarii for the Claimant No Appearance for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rules 2007,rm9.57
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 443 of 2020

BETWEEN

PAN OCEANIC BANK LIMITED
Claimant

AND:

MRS NANCY KWALEA, MR HUNDSON KWALEA, MRS MARILYN MAETA
Defendant

Date of Hearing: 14 December 2021
Date of Decision: 25 May 2022

Mr C Fakarii for the Claimant
No Appearance for the Defendants

Lawry: PJ

Ruling on Summary Judgment

1. This is an application for Summary Judgment pursuant to Rule 9.57 of the Solomon Islands Courts (Civil Procedure) Rules 2007. In August 2014 the Claimant approved the Defendants’ application for a loan facility. The loan was secured against the property Parcel Number (PN) 191-039-377. The loan advances required the payment of interest at the rate of 10% with a penalty interest of an additional 3% should the Defendants’ account be insufficient to meet the required payments. The loan was agreed to be repayable on demand.
2. At the request of the Defendants the loan facility was restructured in May 2015. In January 2016 the Defendants requested a further restructure of the loan facility. That restructure was approved on 5 February 2016. The total amount of the loan following the restructure was $441,000 to be repaid by monthly instalments of $4255.75. The general conditions of the loan repeated that the loan was repayable on demand. Paragraph 2 of the General Conditions provides: “Notwithstanding the above repayment terms, all Bank advances are repayable on demand and the Band reserves the right to demand payment whenever deemed necessary”. The document setting out the conditions of the restructure is annexed to the sworn statement of the Defendant Hundson Kwalea filed on 17 August 2021.
3. The Defendants defaulted on their loan repayments. On 13 February 2018 the Claimant wrote to the Defendants reminding them of their obligations. They had then been in default for 105 days. On 25 May 2020 the Claimant again reminded the Defendants of their obligations. By that time the default was for 367 days.
4. The Defendants continued to be in default and the present proceedings were commenced on 7 September 2020.
5. The Defendants acknowledge the debt and acknowledge being in default. Their defence claims that the term was for 20 years, ignoring that the loan was repayable on demand and that monthly payments of $4255.75 were required to be made and had not been made. They claim that the cause of the default was beyond their control.
6. The Defendants did not file any submissions in opposition to the application for summary judgment although the Court directions made on 5 November 2021 directed them to do so by 8 December 2021. No application to extend the time for filing submissions has been made.
7. In terms of Rule 9.64 the Court is satisfied that the defendants have no arguable defence to the claim and that there is no need for a trial of the claim. The sworn statement of the Defendant Hundson Kwalea satisfies me that there is no real dispute between the parties about the amount of the debt and the defaults on the part of the Defendants. The Claimant is therefore entitled to summary judgment.

Orders

1. An order for Summary Judgment against the Defendants is made pursuant to Rule 9.64.
2. The Defendants are ordered to pay the Claimant the sum of $497,597 plus interest as set out in the loan agreement being 10% plus a penalty 3% on the outstanding balance from the date of filing the Application being 5 November 2021.
3. The Claimant is entitled to seek a further order for the sale of Parcel Number 191-039-377 if the Defendants have not paid the judgment sum within 30 days of this order.
4. The Defendants are to pay the costs of the Claimant on the standard basis.

By the Court
Justice Lawry Puisne Judge