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Deimos Ltd v Hewson [1998] VUSC 29; Civil Case 014 of 1998 (17 July 1998)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

Civil Jurisdiction

Civil Case No. 14 of 1998

IN THE MATTER OF:
A Mortgage dated the 10^th Day of July 1996

AND

IN THE MATTER OF:
The Land Leases Act 1983 (Cap. 163)

BETWEEN:

DEIMOS LIMITED
Plaintiff

AND:

JOHN HENRY HEWSON
Defendant

DECISION

This was a mortgage deed entered between the Plaintiff and the Defendant on the 10-07-1996 whereby the Defendant mortgage to the Plaintiff all her interest as registered propriety in the lease comprised and described as Title No. 12/0822/043. This was to secure all the repayments of monies owing by John Henry Hewson to the Plaintiff.

The Court brought to the attention of the counsel to further make submission on the right of the lessor and lessee and the Defendant in this matter. He further submitted that the lessor has no obligation under the mortgage. The lessor’s right is only to receive payments whereas in this matter the lessee, Deimos Limited sold the lease to the Defendant John Henry Hewson.

The Defendant did not have money to pay for it and the plaintiff mortgage back the property to the Defendant dated the 10^th day of July 1996. The Defendant was then in default of payment giving rise to the action against him.

He further submitted that the Court before making order is to satisfy that:

1. There is a valid lease.

2. There is a valid mortgage stamped and sealed and registered and

3. There is a default.

I am satisfied that there was a mortgage deed between the Plaintiff, Deimos Limited and the Defendant John Henry Hewson which was stamped on the 16-07-96 and was registered on the 22^nd August 1996 and I am satisfied that the mortgage was valid for execution by the parties.

As the Defendant was in default under the mortgage, the Plaintiff took out an originating summons under order 57 rule 4 & 18 supported by affidavit of one Rod Smith and an affidavit of service was endorsed on the 15^th April 1998. The originating summons allowed the Defendant to enter an appearance within 14 days of service of summons. The Defendant then failed to file an appearance under order 12 of the rules. Therefore, I am satisfied that:

1. The originating summon was filed with the Registry.

2. The summon was endorsed.

3. The summon was supported by Affidavit.

4. A proof of service was filed and

5. No notice of appearance was entered.

Therefore, the Plaintiff has complied with the rules in bringing this matter to the Court. I further consider the restriction in order 13 rule 11, however I do not see any need in its application in this matter before me.

The application is also legally recognized under the Lease Act [Cap 163] and particularly section 59 where it allows in law for a mortgage to be enforced by application to the Court.

In this matter the Defendant if he has a right to be heard by the Court, then let her come forward after duly served with the summons and affidavit, to give an explanation to the Court for a decision.

For these reasons I am satisfied that the Defendant is in breach of the executed mortgage and grant leave to the Plaintiff to enter judgment against the Defendant. The order is approved and be endorsed for enforcement.

DATED this 17^th Day of July 1998.

R. MARUM MBE

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