Varea v Westpac Banking Corporation Ltd [2003] FJHC 11; Hbc0254d.2002s (4 June 2003)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 254 of 2002S

Between:

VIKI VAREA
Plaintiff

and

WESTPAC BANKING CORPORATION LIMITED
Defendant

Herman for the Plaintiff
Bale for the Defendant

DECISION

The Plaintiff owes the Defendant Bank $153,766.06 which sum is secured by mortgages granted over two properties namely CT 10826, the family home and CT 14136 which is an investment property.

In March 2002 the Bank demanded full repayment of the amount owed which then stood at $134,175.12. Following the Plaintiff’s failure to satisfy the demand CT 14136 was advertised for sale. On 10 June 2002 the Bank conditionally accepted an offer of $155,000 for the property. A copy of the acceptance letter was tendered by consent.

The Plaintiff in his evidence contended that he had been badly treated by the Bank. The Bank on the other hand claimed that it was the Plaintiff who had acted unreasonably and who, by a combination of bad luck and bad management had simply failed to keep up with the mortgage repayments. In particular, the Plaintiff had failed to pay the bank anything at all since these proceedings were commenced in June 2002.

The Plaintiff now seeks an interim injunction to restrain the Bank from completing the mortgagee sale of CT 14136 and from proceeding with a mortgagee sale of CT 10826. In fact, no steps have been taken in relation to CT 10826 and a successful sale of CT 14136 would expunged the Plaintiff’s debt.

In addition to the usual prayers for relief contained in paragraphs 1 and 2 of the Notice of Motion the Plaintiff also prayed for relief pursuant to the provisions of Section 88 of the Consumer Credit Act 1999 and Section 127 of the Fair Trading Decree 1992. Mr. Herman did not however separately pursue these claims and on the materials before me I am satisfied both that there would be no justification for granting a postponement order under the Act where an interim injunction to be refused in equity and also that there was no evidence that the Decree had been contravened. The only question therefore is whether the Bank should at this very late stage be prevented from proceeding with the sale of the investment property CT 14136.

The law on injunctive relief relating to mortgagees sales is so well known that it is not necessary to set it out again. The almost inflexible rule is that failing repayment of the whole sum owing an injunction will be refused.

Mr. Herman frankly recognised the Plaintiff’s difficulty but stressed that his firm instructions were that CT 14136 was worth far more than $155,000. All that he was seeking was a further 28 days to raise the whole amount owed. If in fact it was not raised and paid to the Bank then he would abandon his quest for the injunction. When it was pointed out that the Plaintiff had had since March 2002 to satisfy the Bank’s demand, Mr. Herman told me that negotiations had been taking place between the parties.

While Mr. Bale, in an excellent written submission argued that the Plaintiff had been given more than enough time to repay the Bank it also seems to me that a further 28 days would not unduly prejudice the Bank nor the proposed purchaser of the property who was, the terms of the acceptance letter, clearly aware that the Bank reserved the right to withdraw from the sale. Mr. Herman was effectively offering to submit to an “unless order” which would also introduce some finality into these proceedings.

In all these circumstances I release the Bank from its current undertaking and order that an injunction issue in terms of paragraphs 1(b) and 2 of the Notice of Motion, the injunction to expire at midday 30 June 2003 if the sum of $153,766.06 has not by that time being paid by or on behalf of the Plaintiff to the Defendant Bank.

Both parties are given liberty to apply in relation to costs.

M.D. Scott
Judge

4 June 2003