Sunhee Lim Kang v Australia & New Zealand Banking Group Ltd [1999] FJHC 154; HBC0302.1999 (20 August 1999)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 0302 OF 1999

BETWEEN:

SUNHEE LIM KANG
1st Plaintiff

IK CHIN KANG
2nd Plaintiff

SOUTH PACIFIC AGRICULTURE
DEVELOPMENT LTD.
3rd Plaintiff

AND:

AUSTRALIA & NEW ZEALAND BANKING
GROUP LIMITED
Defendant

Counsel:Mr H. Lateef for 1st & 2nd Plaintiffs
No Appearance for Defendant

Hearing:2nd August 1999
Decision:20th August 1999

DECISION

This is an application by the Defendant to dissolve an injunction granted to the Plaintiffs on 13th July 1999 restraining the Defendant from exercising its powers of mortgagee sale over freehold land described as CT No. 10414 in Tamavua.

At the hearing of this application Mr H. Lateef appeared for the Defendant. There was no appearance by counsel for the Plaintiffs. The court was therefore not assisted by submissions from the Plaintiffs.

The law on the court interfering with the powers of mortgagees is well settled. In Inglis -v- Commonwealth Trading Bank of Australia (1972) 126 CLR, the headnote reads as follows:

“As a general rule an injunction will not be granted restraining a mortgagee from exercising powers conferred by a mortgage and, in particular a power of sale unless the amount of mortgage debt, if this is not in dispute, is paid or unless, if the amount is disputed, the amount claimed by the mortgagee is paid into court, and this rule will not be departed from merely because the mortgagor claims to be entitled to set off the amounts of damages claimed against the mortgagee.”

In this case the affidavit of Ik Chin Kang in support of the application for injunction, deposes that he is the 2nd Plaintiff and is married to the 1st Plaintiff.

On 10th June 1996, the 1st Plaintiff executed a third party mortgage over the property in favour of the Defendant’s Bank, to secure advances of $180,000.00. He deposes that the Plaintiffs have been paying $3,000.00 per month by way of credit facilities and that the Plaintiffs were not in arrears. The affidavit further states that the Defendant requested the Plaintiffs to refinance the debt, which the Plaintiffs were in the course of doing.

The court granted the injunction on 13th July 1999 on the basis of this affidavit. However the affidavit of Narendra Kumar, Bank Manager, filed in support of the application to dissolve the injunction, has a different story to tell.

At paragraph 4 of his affidavit he states:-

“The Defendant states that the Plaintiffs had defaulted in payments. As the Plaintiffs had defaulted in payments and the mortgage being ON DEMAND, the Defendant was entitled to call the mortgage up. The Defendant however gave the Plaintiffs opportunity to seek refinance on 26th January 1999. This was never done and the Defendant followed up on with the Plaintiffs on 7th May 1999 and on 21st June 1999. A consulting company on behalf of the Plaintiffs requested time for another month. The Defendant accepted this. To date however refinance has not taken place.”

The previous correspondence with the Defendant dating back to 26th January 1999 had not been disclosed to the court, in the application for the injunction.

Whilst a material non disclosure is normally sufficient ground on its own to dissolve an injunction, I note also that Clause 1 of the Mortgage annexed to the affidavit of Ik Chin Kang provides as follows:-

“That the mortgagor will on demand in writing pay to the Bank all and every sums or sum of money loans and advances lent or made by the Bank to or for the use accommodation or the request of the customer or mortgagor and for the time being remaining unpaid including all sums in which the customer or the mortgagor either alone or jointly . . . . may hereafter become liable to the Bank . . . .”

Quite apart from the clear provisions of Clause 1 of the Mortgage, the Plaintiffs have not offered to pay the mortgage debt into court. It appears that the Plaintiffs have been making promises to the Defendant to make arrangements for re-financing since February 1999.

In all the circumstances I am of the view that this injunction should now be dissolved, and I so order.

[Nazhat Shameem] Ms
JUDGE

At Suva
6th August 1999