Fiji National Provident Fund Board v Vivrass Holdings Ltd [2003] FJHC 293; HBC0325R.2002S (22 September 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

ACTION NO. HBC0325R OF 2002S

BETWEEN:

THE FIJI NATIONAL PROVIDENT FUND BOARD
PLAINTIFF

AND:

VIVRASS HOLDINGS LIMITED
1ST DEFENDANT

AND:

REGISTRAR OF TITLES OFFICE
2ND DEFENDANT

Counsel for the Plaintiff: B.C. Patel & G.P. Lala, G.P. Lala & Associates
Counsel for the 1st Defendant: S. Sharma, Patel, Sharma & Associates
Counsel for the 2nd Defendant: Ms Rakuita, Attorney-General’s Chamber

Date of Ruling: 22 September, 2003
Time of Ruling: 9.30 a.m.

RULING

The facts of this Case are best summarised by the Plaintiff at paragraph 7 of its Submission. I will only capture the essential parts for the purpose of this interlocutory proceedings. Vivrass Development Limited (VDL) is a Company incorporated in September 1992. Its authorised capital is $100,000.00 divided into 100,000 ordinary $1 shares. It has a paid up capital of $10,000.00. The shareholders are the First Defendant, Vivrass Holdings Limited (VHL) with 99 per cent shares, and Laucala Beach Holdings Limited (LBHL) with the remaining 1 per cent share. One Vishnu Prasad, principal of Vishnu Prasad, Chartered Accountant, is a common director to VDL and VHL, and a majority shareholder in the latter. In March 1995, VDL applied to and obtained from the Plaintiff a loan of $2.7 million to build a major shopping mall at Suva’s suburb of Laucala Beach Estate (C.T. 24128). The loan represented about two thirds of the total cost of the project. The balance of one third ($1.3m) was cash contribution and land to be provided by VDL. In return for the loan, VDL offered and the Plaintiff took a first mortgage security over CT.24128 as well as the developments over the same. There was also a personal guarantee given by Vishnu Prasad as director of the Company. An additional $600,000.00 upon the same thing and conditions plus a debenture over the Company’s undertaking was further granted to VDL making the total of the loan of $3.3 million.

The mortgagor soon began defaulting under the terms of its mortgage and subsequent to the Demand Notice having been served on the mortgagor and there being no payment on the Demand, the Plaintiff pursuant to its powers under the mortgage instrument, had advertised the property for sale.

There followed a flurry of activities on the part of VDL in an effort to avoid and stop the Plaintiff from exercising its power of sale. First a Caveat was lodged by one Taimomo Holdings Limited allegedly, to protect an agreement between itself and VDL for the purchase of the property. The Caveat was removed by the Court. Second, VDL through CA 277/2001 by ex-parte application, successfully obtained an injunction stopping the Plaintiff from proceeding with the mortgagee sale. The injunction was dissolved subsequently and costs awarded against VDL. The third attempt was simple but ingenious. A scheme of settlement was proposed by VDL. Under the scheme, the Plaintiff agreed, within a time frame, for VDL to redeem its mortgage, subject to the Plaintiff allowing the VDL to complete its sale of the property to Taimomo Holdings Limited. In return VDL would not proceed with its injunction. Should however, VDL fails to pay the Plaintiff by 30 April 2002, the latter could then proceed with its mortgagee sale. A Court Order reflecting the terms of the Settlement was filed on 11 March 2002.

The sale to Taimomo Holdings did not eventuate. One would have presumed that the Plaintiff was then free to proceed with its mortgagee sale. Not so. Next VDL proceeded by way of motion seeking another injunction restrain the Plaintiff from selling. In effect the grounds advanced in support of the application amounted to no more than a variation of the terms of the settlement, which the Court recognised in its Order of 11 March 2002. The Court dismissed VDL’s application as an abuse of the process. Finally, having failed on four (4) previous occasions to stop the Plaintiff, VHL, VDL’s holding Company, entered the arena. It lodged a Caveat on the property on 2 July 2002 preventing any transaction by virtue of its financial contribution to the land CT 24128 on which the Shopping Centre is situated.

The Plaintiff filed an Originating Summons to show cause why VHL Caveat should not be removed, seeking an Order of the Court for the removal of the same. The application is made pursuant to S.109(2) of the Lands Transfer Act. In these proceedings, VHL is named as the First Defendant, the Registrar of Titles as the Second Defendant.

The First Defendant by Summons on 2 September 2002, sought the following Orders from the Court:

“(a) that the First Defendant do have leave to join Vivrass Development Limited as the Third Defendant;

(b) that the First Defendant do have leave to be joined as a Plaintiff in Suva High Court, Civil Action No. 312 of 2002 between Vivrass Development Limited and the Fiji National Provident Fund Board;

(c) that there be an Order for consolidation of the said Civil Action No. 312 of 2002 with the written action;

(d) that the Caveat registered against CT 24128 by the First Defendant be extended and continued until further Order of the Court.”

Affidavit in support of the Summons was filed by Asish Kumar Narayan, the Company Secretary and Property Manager of the First Defendant. Affidavit opposing was filed by Olota Tulumani Rokovunisei, Chief Executive and General Manager of the Plaintiff and responded to by the 1^st Defendant.

CIVIL ACTION NO. 312 of 2002

The proceedings is by Writ in which VDL as Plaintiff, is seeking from the Court Orders to restrain FNPF as the Defendant from the mortgage sale of CT 24128, a declaration that the Demand Notice issued by FNPF against the Plaintiff was bad in law, and finally damages. The action was then before Pathik J.

On 5^th May 2003, and before this Court had ruled on the Plaintiff’s Summons on joinder, Pathik J dismissed the Plaintiff’s Writ, agreeing with the Defendant’s submission that the proceedings amounted to an abuse of the process under O.18 r.18 (1) (d) of the High Court Rules. The Plaintiff has already filed its appeal to the Court of Appeal.

The fact that the action has already been decided, would have put an end to this application. But given that the matter is on appeal the Court must consider the possibility of the appeal succeeding. Under the circumstances, the Court is still at liberty to deal with the issue of joinder. This issue, it had been decided by the Court with the agreement of the parties, was to be addressed first.

FIRST DEFENDANT’S SUBMISSION

In support of its Summons, the First Defendant (VHL) argued that the substance of the claim and allegation made by the Plaintiff are in fact directed at VHL. They do not concern the First Defendant. Additional grounds advanced by the First Defendant are detailed in the Counsel’s submission at paragraph 3 (b) to (g) as follows:

“(b) that furthermore the First Defendant has not been a party to or privy to any communication or correspondence between the Plaintiff and VDL or any matters referred or attended to in the Plaintiff’s Affidavits;

(c) that the agreement regarding provision of mortgage security when called upon to do so exists between the First Defendant and VDL as is evident from the Defendant’s First and Second Affidavits and to which the Plaintiff’s claims an apparent lack of knowledge;

(d) that it is clear that the only party which can furnish full and proper disclosure of all material and information pertinent to the action is VDL as it has had dealings with both the Plaintiff and the First Defendant;

(e) that in the interests of justice and for a full and proper determination of all issues raised in these affidavits it is imperative that VDL do file and appropriate affidavit on all matters in issue;

(f) that in order to file the said Affidavit and to protect its own position, VDL needs to be joined as a party to these proceedings as per our Submissions hereinafter in the part III; and

(g) that there is a clear conflict apparent in the affidavits on salient issues and which conflict can only be resolved following a full trial.”

Counsel then went on to address the Court on the law as it pertains to the facts. The First Defendant claimed that, given that the Plaintiff was aware of the advance of $2.0 million given by the former to VDL, the Plaintiff “ought to have known of the existence of the prior existing loan finance and security agreement between VDL and the First Defendant” and furthermore, the Plaintiff “knew or ought to have known of the existence of the prior mortgage security in the form of an equitable mortgage to secure advances of $2.0m in favour of the First Defendant when called to do so.”

Under the circumstances, the First Defendant argued that the doctrines of “proprietary and equitable estoppel” as well as “unjust enrichment” would make it inequitable for the Plaintiff to assert its right of mortgagee sale. As a registered mortgagee, the First Defendant argued the Plaintiff owed a duty to the First Defendant, to act in good faith in the exercise of its power of sale.

The existence of a counter-claim forms the legal basis of the First Defendant’s application for joinder. In its submission, it had gone to great length to impress that the $2.0m loan given to VDL was an advance which was promised on an understanding that it could be called up at anytime. The Plaintiff should have been aware of such a financial arrangement.

The amount of Counter-claim in which the First Defendant argued, would be based on the difference between the proposed sale price the Plaintiff was intending to sell the property, and its actual value.

Finally the First Defendant referred to O.15 r.2 (1) of the Rules that permits it to add Counter-claim to its defence, and O.15 r.3 (1) on the right to join another party. Specifically O.15 r.3 (1) states:

“Where a Defendant to an action who makes a Counter-claim against the Plaintiff alleges that any other person (whether or not a party to the action) is liable to him along with the Plaintiff in respect of the subject matter of the Counter-claim, or claims against such other person any relief relating to or connected with the original subject matter of the action, then, subject to rule 5(2) he may join the other person as a party against whom the Counter-claim is made.”

In support of this, the First Defendant argued that it has already formulated its Counter-claim against the Plaintiff and “has also set up its claim against VDL by virtue of the agreement to provide mortgage security when called upon to do so in respect of the $2.0m advance.”

PLAINTIFF’S SUBMISSIONS

To establish the basis for action under O.15 r.3 there needs to be the existence of a Counter-claim. The Plaintiff submitted that in this proceedings, the First Defendant do not have any claim against it. Nor is there a cause of action against the Plaintiff upon which a Counter-claim can be mounted by the First Defendant under O.15 r.2 (1). All that exists is a submission by the First Defendant that the Plaintiff was aware or ought to have been aware of the existence of an equitable mortgage over the $2.0m lent to VDL by the First Defendant. The Counsel referred to Birmingham Estates Co. v. Smith [1880] UKLawRpCh 33; (1880) 13 Ch D 506 and the recent case of O’Sullivan v. NZ Ostriches Ltd. (2000) NZPR 593 as authorities for the proposition, that Court will not entertain an application for joinder, where the evidence offered do not support such cause of action and where there clearly exists no action in the subject matter.

On the question of joinder, the Plaintiff argued that it was not seeking any relief against VDL. It had not asked not had VDL applied to be joined as a Defendant. At any rate for VDL to be joined as a Second Defendant, Counsel for the Plaintiff argued, the First Defendant must show, under the requirements of O.15 r.3 (1) of the Rules that VDL along with the Plaintiff are both liable in respect of the subject matter of the counter-claim. All that the First Defendant has done is “set up its claim against VDL by virtue of the agreement to provide mortgage security when called up to do so in respect of the $2.0m advance.” (Submission page 7).

The Plaintiff’s Counsel submitted that O.15 r.4 of the Rules would be the more appropriate to apply. But to do so, the First Defendant has to satisfy the requirements of 4(1) (a) and (b) namely, same common question of law or fact arise in all the actions, and all the rights to relief claimed arise out of the same transaction. However, in this respect, the Plaintiff argued that there was no common question of law or fact in the three (3) claims namely, the Plaintiff’s, the First Defendant’s counter-claim against the Plaintiff, and its claim against VDL. Furthermore, the Plaintiff said that the issue that necessitated the present proceedings between the Plaintiff and the First Defendant can be disposed of without the addition of VDL. No, the Plaintiff continued, will the determination of the matter directly affect VDL’s legal rights.

Counsel for the Plaintiff also referred to O.15 r.5 (1) and (2) of the High Court Rules on the exercise of the Court’s discretion and directions, including ordering separate trials, where the application for joinder will merely result in inconvenience and undue delay.

COURT’S CONSIDERATION

The First Defendant’s grounds for seeking to join VDL as a party to these proceedings are based under O.15 r.2 (1) and O.15 r.3 (1) of the High Court Rules. First under O.15 r.2(1), it stated that it has a claim against the Plaintiff for proposing to sell the property at a price that is well below the market value of the same. Even although the registered proprietor of the property as well as the mortgagee over the same is VDL, the First Defendant argued that by virtue of the $2.0m it, as parent Company, lent to VDL, “when called upon to do so,” there existed an equitable mortgage held by the First Defendant over VDL’s CT. 24128. By virtue of its existence, and the fact that the Plaintiff ought to have been aware of the existence of such a financial arrangement, the Plaintiff owed a duty to the First Defendant to act in good faith in the exercise of its power of sale. It is on the ground of its Counter-claim founded on these alleged facts that the First Defendant is seeking under O.15 r.3 (1) to join VDL to be a party.

The Plaintiff denied that it was aware of any internal arrangements including the loan arrangements between the First Defendant and its subsidiary VDL. The fact that VDL had revealed at the time of its seeking a loan from the First Defendant that one of its shareholders was providing additional funds, would not of itself meant that the Plaintiff had full knowledge of their financial arrangements. They do not, in turn import improper conduct on the Plaintiff nor do they raise any estoppel.

To make a Counter-claim under O.15 r.2, the First Defendant is required to properly formulate it and pleaded. It is not possible to do so here because the proceeding is in the nature of a Summons to remove a Caveat. It would have been possible after the Statement of Claim is filed. The First Defendant had however attempted to identify and formulate the issues that comprise its Counter-claim. These are sufficiently summarised above.

In effect, a Counter-claim is a cross-action which the Court is capable to entertain as a separate action. As Bowen LJ stated in Amon v. Bobbet [1889] UKLawRpKQB 35; (1889) 22 QBD 543 at p.548:

“A Counter-claim is to be treated, for purposes for which justice requires it to be so treated, as an independent action.”

In Stumore v. Campbell & Co. [1891] UKLawRpKQB 198; (1892) 1 QB 312 Lord Esher MR summarised the position as follows (p.317):

“...This Court has determined that, where there is a Counter-claim, in setting the rights of the parties, the claim and Counter-claim are, for all purposes except execution, two independent actions.

If the Plaintiff sustains his claim, judgment goes for him on that; and if the Defendant sustains his counter-claim, judgement goes for him on that. Either claim maybe reduced by set-off. But if the Plaintiff succeeds in the one case and the Defendant in the other, there are two judgments which are independent for all except purposes except execution.”

In these proceedings, the First Defendant’s counter-claim is based on the doctrines of proprietary or equitable estoppel, unjust enrichment and breach of duty. The alleged facts that give rise to these have been traversed above.

For promissory estoppel, which from the facts of this case, is the relevant doctrine here, to apply, the First Defendant had to show that there was a promise or representation, made by the Plaintiff to it and that the First Defendant in reliance of the promise or representation acted upon it to its detriment. The classic statement of the law is made by Denning LJ in Combe v. Combe [1952] EWCA Civ 7; (1951) 2 KB 215 at p.220:

“The principle as I understand it, is that, where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced, even though it is not supported in point of law by any consideration but only by his word.”

Was there a promise or representation made by the Plaintiff to the First Defendant? On the evidence presented, the Court finds that there had been none. In fact the transactions that had given rise to this and other related proceedings was one solely between the Plaintiff and VDL. The First Defendant conceded this much in its submission. As to the submission by the First Defendant that the Plaintiff knew or ought to have known of the security agreement between the former and VDL and the existence of an equitable mortgage to secure the loan of $2.0m, this is again not supported by the evidence. On the contrary, the negotiations leading up to the granting of the loan from the Plaintiff to VDL made abundantly clear that part of the conditions for the granting of the loan was that the property was unencumbered. It is true the Plaintiff was aware of the $2.0m made available to VDL was from one of its shareholders. This alone, without details of the existence of prior security arrangements between the provider of the fund and VDL being made known to the Plaintiff, is not sufficient to implicate the Plaintiff either in its knowledge or awareness of its existence.

On the First Defendant’s submission on unjust enrichment, the Court cannot find any evidence to support this contention. The case involves Plaintiff’s proper exercise of its legal rights. Finally the First Defendant argued that the Plaintiff had breached its duty to act in good faith. Again I can find no grounds for support on the facts before me. The mortgagee owes a duty to the mortgagor and to the guarantor of the mortgagor. The First Defendant does not fall into any of the two categories. At most it is an unsecured creditor of the mortgagor.

In the absence of the essential ingredients for the First Defendant to establish equitable estoppel, on the ground that VDL was liable to the First Defendant along with the Plaintiff, the First Defendant must then satisfy the Court that relief it seeks in its action against VDL is related to or connected with the original subject matter of the action (O.15 r.3 (1)). The argument of the First Defendant of its claim against VDL is of the existence of an equitable mortgage. The fact that this was not made known to the Plaintiff by Vishnu Prasad who negotiated and signed the VDL loan and mortgage to the Plaintiff, given the fact that he was a director of both VDL and the First Defendant, is tantamount to a waiver of its rights if in fact there existed such an arrangement. But whether the claim is related to the same subject matter or not, is clear. As argued by Counsel for the Plaintiff, the First Defendant’s claim against VDL is for the $2.0m it lent; the subject matter of this action is whether the First Defendant has a caveatable interest in the property C.T.24128. This Court agrees. In its view, the two matters are very distinct. In the case of the former, the case is a monetary one while the latter, which constitutes the original subject matter of the action concerns interest in land. The First Defendant’s argument that its case is “related to or connected with the original cause or matter” cannot be sustained.

Having had the benefit of written submissions and as well as arguments from Counsel, for which I am most grateful, and after having perused all the affidavits by the parties, this Court concludes that there does not exist sufficient grounds to grant the First Defendant’s application for joinder.

There is in addition, the First Defendant’s application to be joined as a party to CA.312/2002. This is clearly misconceived. Such an application can only be made before the Court in the other action, not here. The application fails.

Finally the First Defendant’s application for consolidation of CA.312/2002 with this action also fails. It does not in the first instance comply with the requirements of O.4. The principles to be applied are enunciated in Scrutton LJ’s statement in Horwood v. Statesman Publishing Co. Ltd {1929} All ER 558. The learned lord justice said:

“The result of the latter decisions is that you must look at the language of the rules and construe them liberally, and that where there are common questions of law or fact involved in different causes of action you should include all parties in one action, subject to the discretion of the Court, if such inclusion is embarrassing, to strike out one or more of the parties. It is impossible to lay down any rule as to how the discretion of the Court ought to be exercised. Broadly speaking, where claims by or against different parties involve or may involve a common question of law or fact, bearing sufficient importance in proportion to the rest of the action to render it desirable that the whole of the matters should be disposed of at the same time, the Court will allow the joinder of Plaintiffs or Defendants, subject to its discretion as to how the action should be tried.”

It is clear to this Court however, when one looks at the issues raised in this proceedings and compare them to CA.312/200, there is nothing common in law or in fact that would render it desirable for the Court to consider consolidation.

In the result the First Defendant’s application for joinder is declined along with its applications under paragraphs (b) and (c) of its Summons. The Court will proceed to hear the Plaintiff’s Originating Summons together with paragraph (e) of the First Defendant’s Summons.

Costs of $500.00 is awarded against the First Defendant.

F. Jitoko
JUDGE

At Suva
22 September, 2003