Low v NBF Asset Management Bank [2000] FJHC 105; Hbc0066d.2000s (2 October 2000)

Fiji Islands - Low v NBF Asset Management Bank - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NOS: 0066 OF 2000 & 477 OF 1999

BETWEEN:

JOHN THOMAS LOW

& VASITI NAIKELEKELEVESI LOW

Plaintiffs

AND:

NBF ASSET MANAGEMENT BANK

Defendant

Counsel: Mr A. Tikaram for Applicants

Mr T. Seeto for Respondent (477/99)

Mr W. Clarke for Respondent (66/00)

Hearing: 29th September 2000

Decision: 2nd October 2000

DECISION

On 11th April 2000, I refused the Plaintiffs’ application for an injunction restraining the Defendant Bank from proceeding with the sale on mortgage on property at 8 Niranjan Street, Tamavua. The property contains a dwelling house, which the Plaintiffs bought in 1987 for $55,000.00. The property was under mortgage to the Defendant Bank, which also lent further sums of money, (purportedly under the terms of the same mortgage) to Unique Marketing South Pacific Ltd.

The application for injunction having been refused, the Plaintiffs then filed a Notice of Appeal, and an application for stay of all proceedings until the determination of the appeal. The Respondent opposes the application for stay.

The grounds for the application are set out in the affidavit of John Thomas Low dated 14th August 2000. They are that there are reasonable chances of success in his appeal, and that a refusal of the stay order would result in the loss of his home which houses his family.

The Respondent opposes stay on the ground that a stay would be more prejudicial to the Bank because the property cannot be inspected by legitimate buyers and that the appeal has no merit.

The grounds of appeal are as follows:

“1. That her Ladyship erred in law and in fact in holding that the Appellants could be suitably compensated in damages and an injunction restraining mortgagee from exercising its rights would be inappropriate when in fact her Ladyship accepted there is a serious question (namely whether the subsequent advances could be accumulated under the mortgage) to be tried;

2. That her Ladyship erred in fact and in law in holding that the balance of convenience favours the Respondent and not the Appellants;

3. That her Ladyship erred in law and in fact in holding that the Appellants’ Statement of Claim lacks clarity of the cause of action.”

The principles relevant to the grant or refusal of a stay pending appeal are firstly whether a refusal would render the appeal, if successful, nugatory, secondly whether the appeal has any merit, and thirdly whether there are any special circumstances justifying the grant of a stay (Reddy’s Enterprises Ltd. -v- The Governor of the Reserve Bank FCA Appeal 67/90.

In this case, the Applicants have a right of appeal from the decision to refuse an injunction to prevent the Bank from selling his house. If they succeed in the appeal, and this application for stay is refused, the purpose of the appeal would be frustrated. The appeal would thereby be rendered nugatory.

As to the grounds of the appeal, I have no reason to believe that this appeal lacks bona fides. In the circumstances I consider it just to grant a stay of proceedings until the hearing of the appeal.

However, I consider that there is a need to impose conditions on the stay order which would go some way to protect the Respondent’s interests. The Applicants do not dispute a debt of $18,351.86 to the Respondent. They dispute the further advances.

In the circumstances I order that the stay of all proceedings is conditional on the payment into court of $18,351.86 by the Applicants. Further I see no reason why the Applicants should not permit the Bank to facilitate inspection of the premises, and I order inspection as an additional condition of the stay order.

Costs, however, are in the cause.

Nazhat Shameem

JUDGE

At Suva

2nd October 2000

Hbc0066d.00s