AB Annand (Christchurch) Ltd v Australia and New Zealand Banking Group Ltd [1993] FJHC 36; HBC0223d.92s (13 April 1993)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 223 OF 1992

Between:

A.B. ANNAND (CHRISTCHURCH) LTD.
Plaintiff

- and -

1. AUSTRALIA AND NEW ZEALAND
BANKING GROUP LTD.
2. SAMUEL DUGALD HENDERSON
3. DHIRAJ LAL HEMRAJ s/o Hemraj
Defendants

Mr. M. Raza for the Plaintiff
Mr. C.B. Young for the 2nd and 3rd Defendants

RULING

This is an application by the second and third defendants for an order dismissing the action against them on the dual grounds that the plaintiff's claim discloses no reasonable cause of action against them and alternatively, is scandalous, frivolous and vexatious and an abuse of the process.

The application is supported in so far as the second ground is concerned by an affidavit sworn by the 3rd defendant who deposes to the effect that the information sought against them are either matters of public record in the Companies Registry or available to be subpoenaed from them at the trial of the plaintiffs principal claim which is said to be against the first defendant bank.

The plaintiff company has not filed any affidavit contesting the matters deposed in the 3rd defendant's affidavit and learned counsel for the plaintiff company on being pressed on the issue merely relied on the Statement of Claim and an "ill-defined" assertion that no prejudice would be caused to the 2nd and 3rd defendants in being named as parties to the action. I cannot agree.

By way of further 'explanation' learned counsel for the plaintiff company suggested that if the defendants were required to be called as witnesses by the plaintiff company they could not be subjected to cross-examination (without leave) in the event that their evidence was disputed by the plaintiff. Reference was also made to an order for full and proper accounts which the plaintiff company sought against "the defendants" generally.

It is necessary briefly to consider the plaintiff company's Statement of Claim to ascertain its alleged cause of action (if any) against the 2nd and 3rd defendants who were appointed receivers by the predecessor of the 1st defendant bank, of a company with which the plaintiff company had been trading prior to the appointment of the receivers namely R.V. Patel & Co. (Merchants) Ltd.

At the outset it may be noted that the first mention of the 2nd and 3rd defendants occurs in paragraph 14 of the Statement of Claim in the following context:

"14. THE Plaintiff claims that the effect of the said purchase by the First Defendant of the Bank of New Zealand business in Fiji is to nullify the said Debenture Deed and any other collateral securities and the First Defendant can not rely on the said Debenture Deed and the appointment by the First Defendant of the Second and Third Defendants is not valid."

The two paragraphs immediately preceding the above namely paragraphs 12 and 13 refers respectively to the appointment of receivers pursuant to a Debenture Deed and to the Australia and New Zealand Banking Group Decree (No. 20 of 1991) which is claimed to be unconstitutional null and void.

Clearly the validity of the appointments of the 2nd and 3rd defendant's as receivers by the predecessor to the 1st defendant bank is purportedly being challenged indirectly through a direct challenge to the validity of the A.N.Z. Banking Group Decree (op.cit).

Needless to say if the plaintiff company should succeed in its challenge to the Decree then the appointments of the 2nd and 3rd defendants may be undermined. I say "may" advisedly because I am more than satisfied that the recent judgment of the Fiji Court of Appeal in Civil Appeal No. 32 of 1991 determines the issue in favour of the 2nd and 3rd defendants.

In its judgment the Fiji Court of Appeal on the application of R.V. Patel & Co. (Merchants) Ltd. considered the validity of the appointment of the 2nd and 3rd defendants as receivers and concluded at p.4: "that the receivers were validly appointed".

The Appeal Court's decision was based on 2 grounds, firstly, the ANZ Banking Group Decree which it said (at p.9):

"... reaches out to and governs the activities that went on in this instance. In a way that simply validated what BNZ did here in relation to the receivers. It leaves no loopholes for the appellant. That is precisely what the Decree set out to do, to rectify any problems at all that might have been left behind as the residue of the transfer of business from BNZ to ANZ."

I am not unmindful however that the Court of Appeal observed (at p.7) before dealing with the relevant provisions of the Decree: "... that it has never been suggested that the decree was not valid and operative." and in this instance the plaintiff company is directly challenging the validity of the Decree.

The second ground however of the Appeal Court's decision affirmed without reliance on the Decree, the appointment of the receivers by the predecessor of the 1st defendant bank. In particular the Court said at p.12 after setting out the relevant provisions of the sales agreement between BNZ and ANZ:

"The legal position so far as concerns the debenture involved, was that BNZ was the owner of the legal chose in action, which it held in trust for ANZ. May be there was, by the agreement, an equitable assignment of the legal chose in action. But as legal owner, BNZ was probably the only one who could give a valid notice or take any steps to give effect to the debentures or exercise the powers given to the mortgagee under it."

and later at p.13:

"... We are of the opinion that BNZ was legally entitled to give the notice that it did to the appellant under the debentures and to exercise the powers therein ... the debenture was still alive, and the circumstances were such that the proper entity was entitled to exercise the powers given under it. BNZ was that entity."

This latter quotation appears to answer conclusively the averments made in paragraph 14 of the plaintiff company's Statement of Claim in this action. Furthermore it appears that the averments in paragraph 12 of the plaintiff company's Statement of Claim "... that the 1st defendant bank appointed the receivers on or about 18 January 1992" is factually incorrect not only as to the appointing authority but also as to the date of the appointment.

Having carefully considered the plaintiff company's Statement of Claim and the judgment of the Fiji Court of Appeal in Civil Appeal No. 32 of 1991 delivered on the 15th of January 1993 I am firmly of the view that the Statement of Claim discloses no reasonable cause of action against the 2nd and 3rd defendants and is frivolous and vexatious.

Accordingly in the exercise of the Courts powers under Order 15 r.6(2)(a) of the High Court Rules I order that the names of the 2nd and 3rd defendants be struck off the plaintiff company's Writ of Summons and Statement of Claim with costs to the 2nd and 3rd defendants to be taxed if not agreed.

(D.V. Fatiaki)
JUDGE

At Suva,
13th April, 1993.

HBC0223D.92S