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Westpac Banking Corporation Ltd v RD and Sons Commercial Development Ltd [2001] SBHC 47; HC-CC 157 of 1999 (17 July 2001)

HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 157 of 1999

WESTPAC BANKING CORPORATION

v

RD AND SONS COMMERCIAL DEVELOPMENT LIMITED
AND OTHERS

High Court of Solomon Islands
Before: Frank O. Kabui, J
Civil Case No: 157 of 1999

Hearing: 17^th July 2001
Ruling: 17^th July 2001

J. Hauirae for the Applicant
J. Sullivan for the Plaintiff

RULING

(Kabui, J): By Summons filed on 9^th May 2001, the Applicant seeks to be joined as the 6^th Defendant in Civil Case No:157 of 1999 on the ground that it has an interest in the matters before the Court. The reasons are set out in more detail in Mr. Dhari’s affidavit filed on 9^th April 2001 in support of the Application.

The Facts

The background acts were set out in my judgment delivered on 15^th December 2000 in Civil Case No: 157 of 1999 . In brief, the Plaintiff is the Westpac Banking Corporation, claiming against the Defendants, the sum of $511,455.00 plus interest and costs. This sum of $511,455.00 was a loan obtained in 1995 by the Defendant’s from the Plaintiff. This loan was secured by mortgages of a number of fixed-term estates and personal guarantees. These mortgages were registered charges over fix-term estates registered in favour of the Plaintiff. Amongst them are Parcel Nos: 097-004-50, 098-012-59 and 097-005-76.

The Applicant’s Case

The Applicant invokes Order 17, rule 11 of the High Court (Civil Procedure) Rules 1964 (the High Court Rules). The supporting evidence is contained in Mr. Dhari s affidavit filed on 9^th April 2001. In the nutshell, the Applicant alleges that Parcel Nos. 097-004-50, 098-012-59 and 097-005-76 were transferred to the 1^st Defendant without the knowledge and authority of the Directors of R D Plumbing and Hardware Company Limited of which Donald Bato Dhari, the deponent of the supporting affidavit is a Director. Counsel for the Applicant, Mr. Hauirae, argued that the Applicant clearly had an interest in these fixed-term estates, particularly in Parcel No. 097-005-76 which has on it a family house and a warehouse which is rented out.

The Plaintiff’s Case

The Plaintiff opposed the application in that the Applicant had no case against the Plaintiff. Counsel for the Plaintiff, Mr. Sullivan, pointed out that in respect of Parcel No. 191-004-50, the Applicant’s claim should be against Mr. and Mrs. Allan who were current joint owners. As regards Parcel Nos. 098-012-59 and 097-005-76 he pointed out that in the case of Parcel No. 098-012-59, the transfer was from the Commissioner of Lands directed to the 1^st Defendant and in the case of Parcel No. 097-005-76, the transfer was from the Commissioner of Land to Ram Dhari and then to the 1^st Defendant. As a matter of fact, he said, the allegation that transfers of Parcel No. 098-012-59 and Parcel No.097-005-76 had been effected without the knowledge of the Directors of R D Plumbing and Hardware Company Limited was totally unfounded on the facts in Mr. Dhar’s own affidavit.

Finding by the Court

By Order dated 15^th December 2000, the Plaintiff was given leave to Parcel Nos. 098-012-59, 098-012-60 and 097-005-76. Parcel No. 097-004-50 was not the subject of the Court Order dated 15^th December 2000. Also, although Parcel Nos. 098-012-59 and 097-005-76 are covered by the same Court Order dated 15^th December 2000, they are fixed term estates in which the Applicant has never held title at any time. The transfer of title to the 1^st Defendant in Parcel Nos. 098-012-59 and 097-005-76 was not from the Applicant because the Applicant has no title to these Parcel Nos. 98-012-59 and 097-005-76. The Applicant’s application is clearly unfounded on the facts as well as in law. The Applicant’s Summons is dismissed with costs.

F.O. Kabui
Judge