Kim v Bank of Baroda [1999] FJHC 39; Hbc0244d.99s (2 June 1999)

Fiji Islands - Kim v Bank of Baroda - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC0244 OF 1999

BETWEEN:

:

MYONG CHUNG KIM
Plaintiff

AND:

BANK OF BARODA
Defendp>

Counsel: G.P. Shankar for Plaintiff
G.P. Lala for for Defendant

Hearing: 1^st June 1999
Decision: 1^st June 1999

DECISION

This is an application for an interlocutory injunction by the plaintiff restraining the defendant, the Bank of Baroda from exercising its rights of mortgagee sale in respect of CT 20802 and Crown Lease No. 1538, pending determination of the substantive action by the plaintiff against the Bank. A writ of summons dated 4^th May 1999 claims that the Bank is exercising its powers of sale in breach of an agreement that the Plaintiff would pay $2,000.00 a month until the Plaintiff could sell one of his properties to reduce the payment.

On 21^st May this court granted interim relief to the Plaintiff pending a hearing of the application inter-parties. On 24^th May 1999, the Defendant filed the affidavit of Raj Gopal Krishna. The matter was adjourned to 1^st June 1999, for argument.

Counsel for the Plaintiff argued that the Defendant was in breach of an agreement with the Plaintiff in advertising for mortgagee sale whilst continuing to accept mortgage payments from the Plaintiff. He submitted that even if the sale were put off, the Bank was well secured. He further submitted that the Plaintiff needed 4 weeks to finalise a purchase after which the Bank could proceed to mortgagee sale. In response to the court’s query about the non-disclosure of the account’s history of re-financing attempts, counsel submitted that he had difficulty in obtaining instructions from his client, that his client had formerly had different solicitors who might have had the earlier correspondence. He conceded that the letter by Fiji National Provident Fund dated 25^th March 1999 (Annexure H) to the Plaintiff’s affidavit was attached in error, and that it was in relation to another matter altogether.

Counsel for the Defendant submitted that the plaintiff had been given ample opportunity to settle the debt to the Bank. He argued that the Bank continued to accept payment on the mortgage account in good faith and for the purpose of reducing the plaintiff’s debt. He submitted that if the Plaintiff did not succeed in the substantive action he was in no position to pay damages whilst the Defendant Bank clearly was. Counsel submitted that the Bank had the right to sell under the terms of the mortgage, and that the application for injunction was merely a delaying tactic. He also submitted that there had been misrepresentations of fact and of material non-disclosure by the Plaintiff in the ex-parte application for relief.

Counsel for the Plaintiff in respond conceded the size of the debt, and the mortgagee’s rights, but said his client only needed 4 weeks to find a purchaser to redeem the mortgage. He further said that his client was unable to pay the debt amount into court.

There is no doubt that Clause 8 of the Mortgage between the Plaintiff and Defendant gives the Defendant the powers of sale "immediately upon or at any time after default in payment." Whilst the plaintiff argues that there has been no default in payment, there is no doubt at all that important information in relation to the plaintiff’s attempts to re-finance the loan, and the Defendant’s willingness to give the Plaintiffs time to refinance, were not disclosed by the court when the application for interim relief was made.

This factor alone would justify the dissolution of the injunction.

However, in addition, the Plaintiff is unable to pay into court the amount of the judgment debt. The Defendant, on the other hand, as a bank, is in a position to pay damages, if the plaintiff’s action is successful. In Inglis and Another -v- Commonwealth Trading Bank of Australia (1972) 126 CLR 161 the High Court of Australia it was held that injunctions should not be granted restraining a mortgagee from exercising powers of sale conferred by a mortgage unless the mortgage debt is paid into court.

Before granting an interlocutory injunction the court has to be satisfied that there are serious issues to be tried, that if the applicants are ultimately successful damages would be an adequate remedy, and that on a balance of convenience, a grant is justified.

I have considered these principles and for the reasons given in this judgment, the interim injunction granted by this court on 21^st May 1999 is dissolved. The Plaintiff may proceed with the substantive action. The costs of this application are to be in the cause.

Nazhat Shameem, Ms
JUDGE

At Suva
2^nd June 1999

HBC0244D.99S