ANZ Bank (Vanuatu) Ltd v Gaua [2003] VUSC 95; Civil Case 002 of 2001 (14 November 2003)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 02 of 2001

BETWEEN:

ANZ BANK (VANUATU) LTD
Claimant

AND:

ABRAHAM GAUA TRADING AS TARI VIRA VANUATU
Defendant

Mr. Hurley for Judgment Creditor
Mrs. Nari for Judgment Debtor

REASONS FOR DECISION
OF 14 NOVEMBER 2003

On 30 April 2003 this Court issued an enforcement warrant (non-money order) against the three named leasehold interests of the Judgment Debtor authorizing the Sheriff or the police to enter those leasehold titles to enable the Creditor to take possession of the land and premises. The Enforcement Warrant was consequent upon an Order made by this Court on 5 April 2001 where the Claimant was authorized to sell and transfer the leasehold properties and to enter the land, and to apply the proceeds of sale for expenses, moneys due and owing to the Claimant as mortgagee, payment of subsequently registered mortgages or encumbrances that had to be paid into the Court pending further order of the Court. Since 5 April 2001, although payments had been made in reduction of the amount due under the mortgage, there remains outstanding a significant sum amounting to nearly VT30, 000, 000.

In support of the application for suspension the Judgment Debtor deposed to the fact that regular payments had been made and he has equity in the leasehold properties which exceeds by far any amount due and owing to the Judgment Creditor, that the enforcement warrant was issued Ex Parte in his absence and that he has a pending action against the Government of Vanuatu and others which will, upon completion, yield a significant sum, should he be successful.

On the other hand the Judgment Creditor pointed to the fact that, on the evidence, no payments had been made to one of the accounts of the bank since June 2002 and to the other since March 2003.

In my view, it was clear that the Judgment Debtor had had ample opportunity to satisfy the debt to the Judgment Creditor either by way of payment or by way of refinancing his existing loans to the Judgment Creditor. A significant period of time had now passed, no realistic proposal had been made, no regular payments were being made and the prospect of recovering a significant amount of money under the action against the Government was somewhat speculative and would not be immediate, as the claim was only filed on 16 September 2003.

There was nothing untoward in the enforcement warrant being issued ex parte because a conference was not required and the warrant was properly issued on the papers.

I was not satisfied that the Judgment Debtor had advanced sufficiently compelling reasons to persuade this Court that an order to suspend the enforcement warrant should be made and it was for those reasons that the application was declined.

Dated AT PORT VILA, this 14^th day of November 2003

BY THE COURT

P. I. TRESTON
Judge