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National Development Bank Ltd v Access Consultancy Services [2022] PGNC 436; N9880 (4 August 2022)

N9880

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 210 OF 2021

BETWEEN:
NATIONAL DEVELOPMENT BANK LIMITED
Plaintiff

AND:
ACCESS CONSULTANCY SERVICES
First Defendant

AND:
PETER KAIOPUNA
Second Defendant

Kokopo: Dingake J
2022: 04^th August

MORTAGAGE – plaintiffs right to exclusive possession of property in exercising its rights as mortgagor – defendants defaulted in loan repayment resulting in plaintiff exercising its rights under the mortgage agreement – defendants have not provided valid reasons to continue occupy property – plaintiff’s orders sought in the notice of motion granted – cost in favour of plaintiff

Counsel:

Ms. Samantha Kiene, for the Plaintiff

4^th August, 2022

1. DINGAKE J: In this proceeding the Plaintiff seeks Orders set out in its Originating Summons.
2. The trial herein proceeded by way of Affidavit evidence of Titus Wrakonei (Doc No. 2).
3. On the 4^th August 2022, when the matter was called for a hearing the Defendants did not appear despite the fact that on the 6^th of June, 2022, when this Court set down this matter for hearing both parties were represented in Court.
4. The Court was not offered any explanation why the Defendants were not in Court and decided to proceed with the trial.
5. In 2016, the parties hereto entered into a loan agreement in terms of which the Plaintiff advanced monies to the Defendants in the amount of K867,089.00, in total.
6. As a result of accumulating interest and fees, at the time this proceedings were commenced the total money owing to the Defendant was K734,566.31
7. The Defendants offered security for the loan in the form of property, being Allotment 3, Section 68, Kokopo, East New Britain Province, State Lease Volume 18, Folio 246, and a registered Mortgage was secured over the said property.
8. Following the drawing down of the loans, the Defendants defaulted in servicing the loan from 2019, until this proceedings were commenced on or about July 2021.
9. The demand letters and the mandatory Default Notice that the Plaintiff issued to the Defendants on or about the 26^th of May 2020, and 14^th of July 2020, respectively attracted no response from the Defendants.
10. On or about the 7^th of October 2020, faced with this state of affairs the Plaintiff advertised the property that the Defendants offered as security for sale, as it was entitled to do in the National Newspaper.
11. The property was bought by Joy Varuruai Yip in the amount of K550,000.00, but despite the Plaintiff issuing a Notice to vacate to the Defendants, the Defendants have failed to deliver vacant possession and continue to occupy the property.
12. The Plaintiff has complied with the relevant sections of the Land Registration Act in so far as this loan agreements are concerned, in particular Sections 67, 68 and 74 to the extent that the said provisions are applicable.
13. The law is clear that the Plaintiff as a mortgagee has the right to foreclose, in the event of default by the Defendants to meet their obligations. (Bank of Papua New Guinea -v- Muteng Basa (1992) PNGLR 271, Papua New Guinea Banking Corporation -v- Bara Amevo (1998) PNGLR 240, Max Umbu -v- Steamships Limited (2004) N2738, Bank of South Pacific Ltd -v-Dennis Pundia (2012) N4747 and Samuel Aiye Nemo -v- Rural Development Bank Ltd (2013) SC1234)
14. Given the facts of this case and the applicable law as cited above, the Plaintiff is entitled to the Order sought.
15. In the result, this Court orders as follows:
    • (a) A declaration that Plaintiff is the registered mortgagee in the property described as Allotment 13, Section 68, Takubar, Kokopo, East New Britain Province, being subject to the State Lease Volume 18, Folio 246.
    • (b) A Declaration that the Plaintiff lawfully exercised its power of sale pursuant to Section 67 and 68 of the Land Registration Act when it sold the property together with improvements erected thereon to Joy Varuruai Yip through a Contract of Sale and Transfer Instrument signed 11^th and 12^th January, 2021.
    • (c) Pursuant to Section 74 (1) (c) of the Land Registration Act, an order that the Defendants, their servant and or agent deliver vacant possession of the property to the Plaintiff forthwith.
    • (d) A declaration that the Defendant’s current occupation of the property is unlawful.
    • (e) Cost of these proceedings.

_______________________________________________________________
Samantha Kiene: Lawyer for the Plaintiff