National Bank of Anguilla Ltd v Carty et Al

• Jurisdiction: Anguilla
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Judge: D'Auvergne, J.
• Judgment Date: 18 January 2002
• Neutral Citation: AI 2002 HC 2
• Docket Number: Civil Suit No. 108 of 1999
• Date: 18 January 2002

High Court

D'Auvergne, J.

Civil Suit No. 108 of 1999

National Bank of Anguilla Ltd.

and

Carty et al

Appearances:

Ms. Yvette Wallace for the plaintiff.

Mr. Patrick Patterson for the defendant.

Practice and Procedure - Application for sale of property — Previous order of the court does not prevent the sale of land — Defendants given three months to repay debt in default of which the sale of land ordered.

D'Auvergne, J.

1 On the 2nd of November 2001, the plaintiff filed a Notice of Hearing of Originating Summons which had been filed on the 1st of October, 1999, seeking inter alia, that the plaintiff be at liberty to sell the property registered as Road Block 08513B, Parcel 111, thirty days (30) after the grant of the order and that the proceeds of sale be applied towards payment of the loan No. 3300012 (which will be discussed later in judgment) and also that the balance of the proceeds of sale, if any, be held in an interest bearing escrow account of the plaintiff under the name of the Registrar of the High Court pending the determination of the action in suit No. 84 of 1996.

2 The matter was heard on the 22nd of November, 2001. At the hearing only affidavit evidence was used and considered.

3 The evidence of Marita Proctor, Credit Officer in the Loans Department of the plaintiff in the year 1999, stated that on the 2nd day of June 1987, the plaintiff granted a loan to the defendants viz No. 3300012 in the sum of US$25,000.00 with interest at the rate of 13% per annum, repayable on demand and secured by a charge dated the 7th day of July, 1987, in the sum of $25,000.00 over lands contained in Registration Section Road Block 08513B, Parcel 111.

4 She further stated that on the 24th July, 1995 the total indebtedness on loan No. 3300012 was US$20,191.53 and on the 29th September, 1999 the sum of US$20,149.28 inclusive of principal, interest, late charges and in addition, solicitors' fees on collection at the rate of 10% on the outstanding balance.

5 The Affidavit of Selwyn F. Horsford, the General Manager, filed on the 13th December, 2000, stated that the plaintiff previously filed suit No. 19 of 1996 for the sale of Parcel 56 and Parcel 111 to recover monies due and owing to it under Loan Agreements Nos. 3300011 and 3300012 made between the plaintiff and the defendants and that on the 28th June, 1996 the Court made an order for the sale of Parcel 56 by private treaty. (Loan Agreement No. 3300011 has been satisfied by sale of Parcel 56 in accordance with court order dated 18th May, 1998.) He stated that he was advised that at the hearing on that day the defendants objected to the sale of Parcel 111 on humanitarian grounds stating that the matrimonial home was located on Parcel 111, and moreover, was at the time occupied by the first-named defendant and other members of his family.

6 His Affidavit stressed that “at no time did the bank intimate to or make any agreement with either of the defendants herein, that its right to sell Parcel 111 would not be relied upon if the circumstances demanded it …….. It was at all times, however, clearly established that the Bank's right to recover monies owed to it by the defendants herein, by selling Parcel 111 remained undisturbed …….. The court's order of 28th June, 1996, (Order for sale of Parcel 56 by private treaty) therefore, does not in any way preclude the bank from exercising its right to sell Parcel 111 in order to recover monies owed to it pursuant to Loan Agreement No. 3300012.” He further stated that “the fact that the proceedings for the Loan Agreements Nos. 3300011 and 3300012 were pursued in the same High Court Suit is in no way indicative of a consolidation of the two Loan Agreements. At all times the Loan Agreements remained separate and independent of each other.”

7 He stated that on the 12th of September, 1996 the plaintiff received the sum of US$60,000 from Mr. Kent Webster in respect of shares purchased from the first-named defendant and the said amount was applied to Loan Agreement No. 3300011 and Loan Agreement No. 330012.

8 He pointed out that Suit No. 84 of 1996 was an action whereby the plaintiff was seeking for significant sums of money which remains outstanding pursuant to various Loan Agreements made between the plaintiff and Mariners Hotel Ltd., (of which the first-named defendant was the largest shareholder).

9 He concluded his affidavit by stating that the plaintiff was in no way estopped from claiming against the defendants for the repayment of loans made to them in their personal...