Kaloumaira v NBF Asset Management Bank [2000] FJHC 8; Hbc0595d.99s (17 January 2000)

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

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

ACTION NO: HBC 595/99

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BETWEEN:

ATUNAISA KALOUMAIRA

MAKELESI KALOUMAIRA

Plaintiffs

AND:

NBF ASSET MANAGEMENT BANK

Defendant

COUNSEL: Mr A. Seru for Plaintiffs

Mr W. Clarke for Defr Defendant

Hearing: 12th January 2000

Decision: 17th January 2000

DECISION

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On 20th December 1999, the Plaintiffs applied for, and were granted an interim ex parte injunction to restthe sale by the Defendant, ant, of a Toyota Landcruiser registration No. CL946, and of property at 295 Mead Road under a Bill of Sale and mortgage respectively. I ordered that the application be made inter parties on 12th January 2000.

The facts of the case are that the First Plaintiff obtained a car loan, from the Defendant Bank in tm of $25,000.00 on 11th March 1992. He obtained a housing ling loan of $53,000.00 from the Defendant at the same time.

On 7th August 1996, the Plaintiffs were served with a Demand Notice in respect of both hond car. The Plaintiffs arranged refinancing for the housingusing loan. On 4th October 1999, the Defendant demanded $31,265.04 as arrears on the car loan account. On 11th November a seizure notice was served on the Plaintiffs and the vehicle was seized. The Plaintiffs dispute the amount in arrears, saying that they have been overcharged in interest on the car loan account. The Defendant advertised the vehicle and the Mead Road property on 27th November 1999.

In argument, Mr A. Seru for the Plaintiffs submitted that the Defendant was in breach of the Consumer Credit Act and that the Defe had failed to provide prop proper accounts of the amount due. He said that there was a serious question to be tried, but agreed that both parties could be adequately compensated in damages at the conclusion of the case.

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Mr W. Clarke for the Defendant filed no affidavit in response. However he argued that the Consumer Credit Act 1999 into force in May 1999 and and that it had no application to the Plaintiff’s loan accounts which were negotiated in 1992. He said that the Act did not have retrospective effect and that therefore the writ of summons failed to disclose a serious question to be tried. He further submitted that damages would be an adequate remedy for the Plaintiff if he did eventually succeed, and that the Order of the court did not include an undertaking as to damages.

The principal considerations in the grant or otherwise of an injunction are whether there is a serious question to be tried and the balaf convenience (Consolonsolidated Traders Ltd -v- Downes [1981] NZCA 9; (1981) 2 NZLR 247.)

Furthermore where damages are an adequate remedy an injunction will not generally be granted.

On the issue of whether there is a serious question to be tried, section 1(2) of the Consumer Credit Act provides that:

“This Act comes into force on a datdates to be appointed by the Minister by notice in the Gazette.”

Section 80(1) of the Act (Part V Division 2) provides that:

“A credit provider must not begin enforcement proceedings against a debtor in relation to a credit contract unless the debtor is in default under the credit contract and -

(a) & The credit prrvider has gias given the debtor, and any guarantor, a default notice, complying with this section, allowing the debtor a period of at least 30 days from the date of the noto rethe dt; and>

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(b) &ntsp; efe dt hul notsbeen been remedied within that period ....”

The Consumer Credit (Exemption) Regulations 1999 provide that credit providers are exempt from srovisions of the Act until certain dates specified in the Rthe Regulations. Part 5 division 2 (which contains section 80) is not an exempted section. The Act itself did not come into force until the gazetted notice on 7th May 1999. The Notice of Demand is dated October 1999. The Plaintiffs have at least an arguable case that the Act applies to all notices of demand issued after the operative date of the Act.

For the purpose of this application therefore I am ped to accept that there is a serious question to be tried.

However, counsel for the Plaintiffs concede that damages are an adequate remedy for the Plaintiffs. In the circumstances the court should be reluctant to interfere with the Bank’s powers of mortgagee sale. This is particularly so because the Plaintiffs are not in a position to deposit the amount in arrears, into court pending trial.

For these reasons I refuse this application to continue with the injunction granted on 20th December 1999.

The Plaintiffs are to pay the Defendant’s costs of the application, to be taxed if not agreed.

Nazhat Shameem

JUDGE

At Suva

17th January 2000

Hbc0595d.99s