Malere v National Bank of Vanuatu [2005] VUCA 22; Civil Appeal Case 14 of 2005 (18 November 2005)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

CIVIL APPEAL CASE No. 14 of 2005

BETWEEN:

ADRIEN MALERE
Appellant

AND:

NATIONAL BANK OF VANUATU
Respondent

Coram: Hon. Chief Justice Vincent LUNABEK
Hon. Justice Bruce Robertson
Hon. Justice Daniel Fatiaki
Hon. Justice Oliver Saksak
Hon. Justice Patrick Treston

Counsel: Mr Adrien Malere in person
Mr Nigel Morrison for the Respondent

Date of hearing: 17 November 2005
Date of Judgment: 18 November 2005

JUDGMENT

Mr Malere appeals against Orders made in the Supreme Court by Justice Bulu whereby it was ordered that:-

“1. The Claimant, as mortgagee, be empowered to sell and transfer the leasehold property contained and described in the Number 11/OD33/033 by such means and in such manner as it shall deem fit.

2. Pending such sale and transfer the Claimant, as mortgagee, or as agent or agents duly authorized by it in writing, be empowered to enter on the said leasehold property and act in all respects in the place and on behalf of the proprietor of the lease, and to apply in reduction of the monies due and owing to the Claimant all or any rent received in respect of the said property.
   
3. The purchase monies to arise from the sale and transfer of the said leasehold property and the monies received (if any) by the Claimant pending such sale and transfer be applied-
   

(a) Firstly, in payment of the expenses occasioned by the sale and transfer or going into and remaining in possession (as the case may be), including the costs of this application;

(b) Secondly, in payment of the moneys then due and owing to the Claimant as mortgagee;

(c) Thirdly, in payment of subsequent registered mortgages or encumbrances (if any) in order of their priority;

(d) Fourthly, the surplus (if any) shall be paid into this Honourable Court pending further Order.

4. The Defendant be ordered to pay the Claimant’s costs on a standard basis as taxed or agreed.
   
5. The enforcement Orders granted herein be stayed for 30 days after the date of service.”
   

The stipulated ground of appeal was that the learned Judge had erred in law and that “there was a miscarriage of justice when Mr Malere was not given the opportunity to put evidential material to dispute quantum”.

The available evidence discloses that Mr Malere was the owner of the leasehold property contained and described in title No.11/OD33/033 and granted a mortgage dated 25 August 1995 in favour of the Vanuatu National Provident Fund and initially securing sums of over 3 million Vatu which was increased to 5 million Vatu.

In June 2001, the interest secured by the mortgage was transferred to the National Bank of Vanuatu. In April 2004, Mr Malere was formally notified of the transfer.

In May 2004, a demand was made for a total of VT6,894,137 Mr Malere was in arrears but it was not met. The Supreme Court claim was filed together with supporting sworn evidence on the 7th April 2005. It included a request for judgment. Mr Warsal indicated an interest on behalf of Mr Malere but took no action and default judgment was entered on 3 June 2005.

The Notice of Appeal was filed on the 6th of July. With it was included a statement by the Appellant which relates to issues of a political nature and does not go to the substance of the Court process which was taking place. We have also looked at the contents of a letter sent to the Hon. Moana Carcasses (then Minister of Finance) on the 21st October 2004 and signed by a number of persons expressing their concern about steps which have been taken by the Government. They are not justiciable issues.

This appeal was among the 19 listed for call-over before the Court of Appeal on Monday the 7th November. Mr Malere was present.

We made clear to him the obligations with regard to the hearing of an appeal and he was given a fixture at 9.00AM on Thursday the 17th November. A formal Order of the Court in those terms was subsequently delivered to him.

In the intervening period we obtained a case book prepared by the Respondent including its submissions and all materials relevant to the obtaining of the default judgment. The case book was a model of what the Court expects and needs always.

There was no appearance at the hearing on November 17 by Mr Malere, by Mr Warsal or by anyone else on the Appellant’s behalf.

A careful analysis of the available material shows that there was a mortgage between Mr Malere and the Vanuatu National Provident Fund.

That mortgage was duly transferred to National Bank of Vanuatu. Mr Malere was notified.

There was clear evidence that Mr Malere was in arrears of the payment due and owing by him under the mortgage. Demands for payment were made.

All proper notifications were provided and served. There is no basis upon which we could interfere with the default judgment which was properly entered against Mr Malere in accordance with the law. No issue of substance has been raised in the appeal.

Accordingly we have no option but to dismiss the appeal and to order normal costs in favour of the Respondent in respect of this matter.

Dated at Port-Vila this 18th day of November 2005

BY THE COURT

VINCENT LUNABEK CJ
J. BRUCE ROBERTSON J
DANIEL FATIAKI J
OLIVER A. SAKSAK J
PATRICK I. TRESTON J