National Bank of Vanuatu v Tambe [2007] VUSC 105; Civil Case 237 of 2006 (14 December 2007)

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

Civil Case No. 237 of 2006

BETWEEN:

NATIONAL BANK OF VANUATU
Claimant

AND:

GEORGE TAMBE
Defendant

Coram: Justice C.N. Tuohy

Counsels: Mr. Rosewarne for Claimant
No appearance for Defendant

Date of Hearing: 14 December 2007
Date of Decision: 14 December 2007

ORAL JUDGMENT

1. This is an application for summary judgment. The date of first hearing on the application was 14 December 2007 at 3 pm. At that time only Mr. Rosewarne for the Claimant appeared. He assured the Court that a sealed copy of the application and sworn statement in support have been served upon the defendant’s address for service and undertook to file a sworn statement to that effect forthwith. On that basis the Court has decided to proceed with the application today. There is no explanation for the defendant’s absence or the absence of his counsel.
   
2. The Rule relating to applications for summary judgment is Rule 9.6. It requires that the application have with it a sworn statement that the facts in the claimant’s claim are true and the claimant believes there is no defence to the claim and the reasons for that belief. In this case the Claimant has somewhat short-circuited that process. The sworn statement in support has been made by Mr. Kalmet, a solicitor in the Claimant’s solicitors’ office rather than an employee of the Claimant. He gives hearsay evidence that the relevant employee of the Claimant, Ben Dali, believes that the matters pleaded in the Claim are true and correct and that he, Mr. Kalmet, himself believes on that basis there is no defence to the claim.
   
3. I note that Ben Dali has filed sworn statements in the proceeding previously which in effect swear that the matters set out in the Claim are true. On that basis it would be somewhat pedantic to dismiss the application simply because Mr. Kalmet’s statement is in part hearsay. However, it should be noted that if an application is made at the start of the proceeding without any sworn statement by the Claimant himself it is not likely to be granted based on a hearsay sworn statement of someone in the solicitor’s office.
   
4. R. 9.6(7) provides that if the Court is satisfied that:
   
   1. the defendant has no real prospects of defending the Claimant’s Claim; and
      
   2. there is no need for trial of the claim the Court may give judgment for the claimant.
      
5. This Claim is for the exercise of powers of sale by a mortgagee. It is in standard form. What must be established is:
   
   1. that the defendant has granted a mortgage of his property to the claimant
   2. that the mortgage is in default
   3. that notice of demand has been served on the mortgagor
   4. that the notice of demand has not been complied with and the mortgage remains in default
      

All those things have been proven by the sworn statement of Mr. Dali.

6. I have considered the statement of defence and the sworn statement of the defendant in support of it in order to decide whether this is a case coming within R9.6 (7).
   
7. In effect the sworn statement of defence admits all the matters that have to be established by the Claimant although there is some argument with the amounts involved and also the defendant alleges that he had continued to make at least some payments.
   
8. His sworn statement also in effect admits those things. What is does set out at considerable length are the extensive efforts that the defendant has made to keep up payments and that he has shown "good faith" in the way he has tried to deal with his financial problems. His position is summed up in paragraph 31 of the sworn statement, the very last paragraph. What he asks the Court to do there is grant orders to the effect "that the claimant reconsiders and agrees to the defendant’s requests to renegotiate another restructuring of the loan" and that the claimant "accepts the currently improved loan repayment situation to continue until such time the Defendant should be in position to be able to make certain lump sum payments as demanded as the defendants himself believes there is still an opportunity laying ahead for him to be able to make the demand made by the Claimant".
   
9. Unfortunately, the Court is unable to make such orders. It is not a question of commercial fairness or reasonableness. The Court has no power to depart from the terms of the contract made between the Claimant and Defendant as mortgagee and mortgagor. The Court has no power to do what might be considered "fair and reasonable". If authority for that proposition is needed it is found in decision of ANZ Bank (Vanuatu) Ltd -v- Lulum [2000] VUCA 7 CAC 06 of 2000 (27 October 2000). Accordingly I do consider that this is a case where the defendant has no real prospect of defending the claim and there is no need for a trial of it.
   
10. There will be orders in terms of the draft orders provided by the Claimants.
    

Dated at Port Vila on 14th day of December, 2007

BY THE COURT

C. N. TUOHY
Judge