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Ati v National Bank of Vanuatu Ltd [2021] VUSC 58; Civil Appeal Case 2846 of 2020 (23 February 2021)

IN THE SUPREME COURT OF Civil Appeal

THE REPUBLIC OF VANUATU Case No. 20/2846 SC/CIVA

(Civil Appellate Jurisdiction)

BETWEEN: Mark Ati

Appellant

AND: National Bank of Vanuatu Limited

Respondent

Date of Hearing: 29 January 2021

Before: Justice V.M. Trief

In Attendance: Appellant – no appearance (in person)

Respondent – Ms S.S. Mahuk

Date of Decision: 23 February 2021

JUDGMENT

1. Introduction
   

1. This appeal arises from enforcement proceedings before the Hon. Master. Summary judgment was entered directing specific performance of the contractual arrangement in the letters of offer. That is, directing the Appellant Mark Ati to sign mortgage instruments in respect of the leasehold titles referred to in the Respondent National Bank of Vanuatu Limited’s (the ‘Bank’) letters of offer to him for loan facilities that he accepted.
   

2. Background
   

2. Mr Ati sought loans from the Bank. The Bank set out the terms of its offers of loan monies to Mr Ati in letters of offer including the requirement for security for the loans by way of mortgages over certain leasehold titles.
   
3. Mr Ati signed the letters of offer and drew down the loan funds. However, he signed mortgage deeds over only 2 rather than over all the leasehold titles involved.
   
4. The Bank filed a Claim seeking specific performance. That is, that Mr Ati be compelled to sign the other mortgage deeds as agreed.
   
5. Mr Ati filed a Defence to the Claim.
   
6. Subsequently the Bank applied for summary judgment on the basis that Mr Ati had no real prospect of defending the claim.
   
7. On 17 September 2020, the Master granted summary judgment and ordered specific performance in respect of 4 leasehold titles.
   

100. The Appeal and Discussion
     

8. Mr Ati now appeals against the summary judgment. The grounds of his appeal include that the Master erred as there was a dispute of fact as the letters of offer were entered into by mistake or as a result of misrepresentation, and that the Bank owed Mr Ati a duty to explain the agreement regarding the conversion of his vatu account to a U.S. Dollar account.
   
9. On 23 November 2020, I directed that the parties file submissions and listed the hearing of the appeal on 29 January 2021. Counsel for both parties were in attendance – Mr Kalsakau for Mr At Ms Mahu Mahuk for the Bank.
   
10. I am satisfied therefore that Mr Ati was aware through his cl of the orders that he file file submissions and of the date of the hearing of the appeal. However, no submissions have been filed f Ati. Further, 2 days before the hearing of the appeal, Mr Kalsakau filed a Notice of CeasiCeasing to Act.
    
11. Mr Ati has not attended the hearing of the appeal nor has Mr Kalsakau appeared to formally seek the Court’s leave to cease acting. Further, there is no application from Mr Ar adjournment of the hearihearing.
    
13. At the end of the hearing, I gave an oral decision. However, in light of the Court of Appeal’s judgment in Bred (Vanuatu) Limited v The Master of the Supreme Court; Civil Appeal Case No. 3144 of 2020 dated 19 February 2021, I have had to reconsider my decision.
    
14. For the following reasons, I set aside the summary judgment entered by the Master:
    
    1. The Master does not have the original jurisdiction of a Supreme Court judge.
    2. In the absence of Rules of Court prescribing the Master and Deputy Master’s jurisdiction, the Master’s original jurisdiction is limited to the matters set out in para. 42(3)(a) of the Judicial Services and Courts Act [CAP. 270].
    100. Accordingly, the Master did not have jurisdiction to determine the summary application.
         
15. Given the above result, I need not consider each of the grounds of appeal advanced.
    

4. Result and Decision
   

16. The appeal is allowed.
    
17. The summary judgment dated 17 September 2020 in CC 20/98 is set aside.
    
18. The Respondent’s application in CC 20/98 for summary judgment must be determined by a Supreme Court judge. It is listed for hearing before me at 10.30am on 17 March 2021.
    
19. There is no order as to costs.
    
20. This judgment must be served on the Appellant and proof of service filed.
    

DATED at Port Vila this 23^rd day of February 2021

BY THE COURT

.................................................

Viran Molisa Trief

Judge