Home Finance Company Ltd v Petueli [2002] FJHC 261; HBC0272J.2002S (31 October 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 272 OF 2002

Between:

HOME FINANCE COMPANY LIMITED
Plaintiff

And:

PHILIP JOHN PETUELI and

ANNA PETUELI
Defendants

Mr. D. Sharma for the Plaintiff
Mr. W. Clarke for the Defendants

JUDGMENT

By Originating Summons dated 26th June 2002 which is a “mortgage action” the Plaintiff (Home Finance Company Limited) applied for relief, inter alia, as follows:

1. Delivery by the defendants to the plaintiff of vacant possession of all property comprised in CT No. 16138 being Lot 43 on DP 3936 situated at 9 Tuisowaqa Rd, Namadi Heights, Tamavua together with all the improvements therein.
   
2. An injunction restraining the defendants, their servants or agents, further interfering with the improvements on the said property in any way to deplete its value.
   

An affidavit in support of the summons was filed to which the defendant (D1) replied followed by the plaintiff’s reply thereto.

Very briefly, the background facts as disclosed in the affidavit of the plaintiff are that the said property was secured under a mortgage to the plaintiff. The defendants made default in their payments under the mortgage. Hence the plaintiff as mortgagee proceeded to exercise its powers under it. It accepted a tender for the purchase of the said property but the prospective purchaser required vacant possession. Despite notice having been given to the defendants they refused to give vacant possession and this is interfering and prejudicing the plaintiff’s rights as mortgagee.

I have considered the affidavit evidence before me and the submissions made by counsel for the parties.

The learned counsel for the defendants submitted that the originating summons has been served out of time as at one time after that there was agreement to make payment and the defendants made some payment but they were never able to pay up the arrears under the mortgage. The debt is not disputed by the defendants. As at 13 December 2001, when the demand notice was served on them, they owed the sum of $56,466.27. The loan payment made by the defendant was in December 2001 and since that time no further payments were received whilst the defendants continued to live in the property. The defendants were never in a position to either clear the arrears of payments or make regular payments under the mortgage. The plaintiff was in these circumstances perfectly entitled to exercise its powers of sale under the mortgage which it did. There is no merit whatsoever in the defendants’ argument to entitle them to continue to occupy the said property.

I find that the application has been properly made by the plaintiff under Order 88 of the High Court Rules 1988. It is entitled to the relief claimed by it.

I therefore grant the relief sought by the plaintiff with execution stayed until 31 December 2002. Each party to bear his own costs.

D. Pathik
Acting Chief Justice

At Suva
31 October 2002