Public Employees Union v Leweniqila [2001] FJHC 78; Hbc0393y.1999s (11 October 2001)

Fiji Islands - Public Employees Union v Leweniqila - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO: HBC0393 OF 1999S

BETWEEN:

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PUBLIC EMPLOYEES UNION

Plaintiff

AND:

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PELEKI LEWENIQILA

1st Defendant

AND:

BULEWA, SEMISI & ASSOCIATES

2nd Defendant

Ms S. Saumatua for Applicant

Mr K. Vuataki for Defendants

Hearing: 2nd October 2001

Judgment: 11th Octobe1

JUDGMENT

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This is an application for a Charging Order to be made absolute pursuant to Order 50 rule 6 of the High Rules. The facts which are the background to this case aree are set out in my judgment of 4th September 2001. The application is in respect of a piece of land with a dwelling-house, in Naitasiri, in which the First Defendant has a beneficial interest.

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> A charging order nisi was granted and I ordered that a copy of the order and of theaffidavits of Filimoni Banuve to be served on the First Deft Defendant and his wife Verenaisi Leweniqila by 18th September 2001. The matter was then adjourned for further consideration under Order 50 Rule 3 of the High Court Rules.

The first Defendant’s daughter Verenaisi Rokovada has now filed an affidavit sworn on 26th September 200 that affidavit she claims that she is joint owner of the pthe property in question, that she has sentimental reasons for wishing to buy a half-share of the property, and that her sister Loata Qovunicagi now wishes to buy the First Defendant’s half-share “at half of the valuation price estimated by the Plaintiff’s valuer.” She asks for time to apply to the bank for a loan to be made to her sister or that the Plaintiff purchase her half-share at half of the valuation price.

In his submissions, counsel for the First Defendant asked why the Plaintiff had not proceeded to enforce the debt spect of the Second Defendafendant and relied on the contents of the affidavit. Counsel for the Plaintiff said that Verenaisi Rokovada had not provided proof of ownership, that there is no declaration of the truth of the contents of the affidavit, and that because the First Defendant had failed to show cause, the order should be made absolute.

The question is whether the First Defendant and/or an interested party has shown “sufficient cause to the contrary” unrder 50 Rule 6. The effect fect of a charging order is to provide the Plaintiff with security, in whole or in part, over the property of the debtor. The effect of the order would be to make the creditor a secured creditor who must proceed to enforce the charge to obtain the proceeds of the charge, in order to satisfy the judgment.

In England the Charging Orders Act 1979 provides that the High Court can make a charging order with or without conditions and proviby virtue of section 1(5) o(5) of the Act, that in deciding whether to make a charging order the Court shall consider all the circumstances of the case as in particular the personal circumstances of the debtor and any prejudice to any other creditor. Although this Act does not apply directly to Fiji, the principles generally guiding the grant of a charging order after the passing of the 1979 Act, provide useful guidelines. These principles, stated by Lord Brandon in Roberts Petroleum Ltd. -v- Bernard Kenny Ltd. [1981] EWCA Civ 10; (1982) 1 WLR 301, are as follows:

1. &nnsp;&&nsp;;&&spsp;&bbsp;&bsp; &nbp; &nbsppan>The question of whof whether a charging order nisi should be made absolute is a matter fo discn of ourt;n> &nGB>

2.; &nbs;&nnbp;&&nbp;;&nbpp;&nbp; The n odeshow ng cang cause why the order nisi should not be made absolute is on the judgment debtor;

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3. &nnbsp; &nnbsp; &nbp; &nbp; &nThe principles apps applicable to the exercise of the discretion are those relevant to the grant of a garnishee onisi;n> N-GB>

4. ; &&bsp;;&bspp;&nssp; &nbs; The Couot shcold consider all the circumstances of the incg thoisingr ther nispan>

5. ;&nspp;&nssp;  p; &nbp; nbsp;nbsp; & Thrt shrt should culd consider all the parties including the judgment creditor , the judgment debtor and other unsecured creditors.

In this case the judgment debtor has failed to show me why the order should not be made absolute. Not only does the affidavit of Verenaisi Rokovada contain the irregularities pointed to by counsel for the Plaintiff, but it fails to show me how the interests of the creditor (the Plaintiff) can be protected by the course of conduct it recommends. How does allowing her sister to buy the First Defendant’s half-share, help the creditor? Further, the property is valued at substantially less than the total amount of the judgment debt, and the creditor in any event will take limited comfort from the charging order. The affidavit fails to show how Verenaisi Rokovada now has become part-owner of the property and there is finally no suggestion that there are other unsecured creditors whose interests the court now must consider.

I find therefore that the First Defendant and his daughter have failed to show me why the charging order should not be made absolute.

The order is therefore made absolute in respect of the First Defendant’s beneficial interests in the properscribed as Certificate of L of Lease No. 236585 being Lot 86 on DP 5215 in the province of Naitasiri.

Nazhat Shameem

JUDGE

At Suva

11th October 2001p class=MsoNormal align=rign=right style="text-align: right; margin-top: 1; margin-bottom: 1"> Hbc0393y.99s