Ram v Fiji Development Bank [2004] FJHC 399; HBC0323.2002L (6 April 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0323 OF 2002L

BETWEEN:

BAL RAM
Plaintiff

AND:

FIJI DEVELOPMENT BANK
Defendant

Counsel for the Plaintiff: Mr. V. Mishra
Counsel for the Defendant: No Appearance

Date of Hearing & Judgment: 6 April 2004

EXTEMPORE JUDGMENT

This matter comes before the court by way of Originating Summons dated 9^th October 2002, the plaintiff in which was Bal Ram and the defendant, Fiji Development Bank. By Ex-parte Notice of Motion filed on 30^th March 2004, Krishna Kumar the son of Bal Ram sought to be substituted as plaintiff and orders were made by the court to that effect.

Krishna Kumar upon being substituted as plaintiff sought to proceed with the Originating Summons.

The plaintiff was the registered proprietor of the land in Certificate of Title No. 32606 that land being mortgaged to the defendant. By affidavit sworn on 1^st October 2002, the deceased, Bal Ram, deposed that as at the 31^st of December 1998, all monies owed by him have been paid but that the defendant had neglected, failed or refused to discharge the mortgage over his land and to thus give to him the Certificate of Title No. 32606.

Despite letters having been written by the plaintiff’s solicitors to the defendant, the defendant continued to fail to release the Certificate of Title and discharged the mortgage.

Krishna Kumar gives evidence before the court by way of an affidavit sworn on 30^th March 2004 and also by way of oral evidence. It is apparent from that evidence that Bal Ram became ill to a degree requiring medical treatment in the Suva Private Hospital or alternatively overseas. To facilitate this treatment, significant amounts of money were required, amounts in the order of Thirty Thousand Dollars ($30,000.00) and greater.

Mr. Kumar gives evidence that Bal Ram was suffering from a growth in the lower part of his bladder and there is tendered to the court Exhibit P-4 which describes in some detail the medical condition of Bal Ram as at the date of that report and prior thereto. That letter is dated 26^th October 2003 and is addressed to Peter Mc Callum Cancer Institute in Melbourne, Australia where it was hoped Bal Ram would go for further treatment.

Mr Kumar’s evidence is that further treatment did not take place again because of a lack of funds and the inability to raise funds by mortgaging the property owned by Bal Ram.

The evidence is that the defendant ultimately released the Certificate of Title No. 32606 in September 2003 and Bal Ram died on 11^th December 2003.

The evidence of Krishna Kumar is that from the time the certificate of title was released Bal Ram was indeed most unwell. Other things that would have made his life a little easier were also unable to be undertaken, that is, the installation of a new toilet. He was cared for during his illness by Krishna Kumar and his wife.

Counsel for the plaintiff refers the court to section 72 of the Property Law Act which provides and I quote: -

“(1) A mortgagor is entitled to redeem the mortgaged property at any time before the same has been actually sold by the mortgagee under his power of sale, on payment of all moneys due and owing under the mortgage at the time of payment.”

It is clear from the evidence that the plaintiff, Bal Ram, was entitled to redeem the mortgaged property. He had paid the monies he owed and the defendant had failed for whatever reasons to effect that redemption.

The court is referred to the decision of Gates J. in Frank R. Eggers Junior v Blue Shield (Pacific) Insurance Ltd. - Civil Action No. HBC0094 of 1997L where damages were awarded inter alia by way of general damages for pain and suffering and mental stress and interest. In that authority, His Lordship refers to and relies upon the decision of the High Court of Australia in Baltic Shipping Co. v Dillon [1993] HCA 4; [1992-93] 176 C.L.R. 344 and in particular pages 365 and 371. His Lordship also relied upon Mouat v Clark Boyce [1992] 2 N.Z.L.R. 559. In both of these cases the plaintiffs were awarded an amount by way of damages for mental stress. His Lordship as page 24 of the judgment quotes from Dillon at page 371 where Brennan J said: -

“To ascertain whether the obtaining of peace of mind is the object of a contract or, more accurately, an object of a contract, reference is made to its terms, express or implied, construed in the context of facts which the parties know or are taken to have been known. Thus, if peaceful and comfortable accommodation is promised to holiday-makers and the accommodation tendered does not answer the description, there is a breach which directly causes the loss of the promised peacefulness and comfort and damages are recoverable accordingly. In cases of this kind, a statement by the promisor commending a service or facility to be provided under the contract is frequently a term of the contract, not a mere representation.”

In this case, it is not a contract but a statutory obligation cast upon the defendant by virtue of section 72 of the Property Law Act but it would seem to me that that statutory obligation is analogous to the contract referred to by Brennan J. in the passage quoted above.

As I have said the original plaintiff, Bal Ram, died on 11^th December 2003 but by virtue of section 2 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act (Cap. 27), the cause of action survives his death as does the claim for damages.

I find therefore that the plaintiff is entitled to damages.

In Frank R. Eggers Junior v Blue Shield (Pacific) Insurance Ltd, Gates J. awarded general damages, $10,000.00 for pain and suffering and $20,000.00 for mental stress together with interest at the rate of 6%. In that matter, the plaintiff had a health insurance policy with the defendant and on needing the facility of that policy the defendant was apparently dilatory resulting in the claim for damages being made by the plaintiff.

In Baltic Shipping Co. v Dillon the High Court of Australia awarded the plaintiff $5,000.00 for inconvenience which amount was in addition to awards for the damages for the injuries she sustained.

In the circumstances and with the limited evidence that is before me as to the effect of the failure of the defendant to fulfil its statutory duty. I think that damages of Fifteen Thousand Dollars ($15,000.00) are appropriate.

When I refer to the evidence being limited, I don’t do that with any sense of criticism but merely because of the inability of the deceased plaintiff to give evidence to the court of his suffering. The plaintiff’s counsel submits that interest should be awarded on the amount of damages and that such interest should be awarded from the date of service of the Originating Summons, with this I agree. It is also submitted an appropriate interest rate would be 6% and with this I agree.

The Orders of the Court therefore will be: -

1. The defendant to pay the plaintiff by way of general damages the sum of Fifteen Thousand Dollars ($15,000.00);
   
2. The defendant to pay the plaintiff’s interest on the sum of Fifteen Thousand Dollars ($15,000.00) at the rate of 6% from the 11^th October 2002;
   
3. The defendant to pay the plaintiff’s costs assessed in the sum of Seven Hundred Dollars ($700.00).
   

JOHN CONNORS
JUDGE

AT LAUTOKA
6 APRIL 2004