Angco Holdings Ltd v Westpac Banking Corporation [2004] FJHC 509; HBC0235.2002L (24 November 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0235 OF 2002L

BETWEEN:

ANGCO HOLDINGS LIMITED
1st Plaintiff

AND:

DR. RAMON ANGCO
2nd Plaintiff

AND:

WESTPAC BANKING CORPORATION
Defendant

Counsel

Mr. S. Nacolawa for the plaintiff
Mr. K. Kumar for the defendant

Date of Hearing & Judgment: 24 November 2004

EXTEMPORE JUDGMENT

This matter first came before the court on the 23^rd November 2004 by way of Ex-parte Notice of Motion seeking an order that the defendant or its representative or agents whether by itself/themselves or together with another be restrained from registering and transfer of titles CT 9890 Mortgage No. 428947 or howsoever.

At that time I declined to deal with the motion on an ex-parte basis and made directions for the service of documents and the matter was then adjourned for inter-partes hearing today.

I have had the benefit of written submissions on behalf of the plaintiffs and I have heard oral submissions on behalf of the defendant.

The plaintiff relies on affidavit of Dr. Ramon Angco sworn on 19^th November 2004 and the defendant relies on an affidavit of Nagap Reddy sworn on 24^th November 2004.

The relief sought by the plaintiff is injunctive relief and as is acknowledged by the plaintiff’s submissions, the principles expressed by Lord Diplock in American Cyanamid Co. v Ethicon Ltd [1975] UKHL 1; [1975] AC 396. In considering those principles it is perhaps beneficial to look at the words of His Lordship where he said at page 406:

“The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff’s need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s undertaking in damages if the uncertainty were resolved in the defendant’s favour at the trial. The court must weigh one need against another and determine where “the balance of convenience” lies.”

The principles that come from that authority are:

1. There must be a triable issue;
2. The damages are not an adequate remedy;
3. Where does the balance of convenience lie.
   

There is no doubt a triable issue but making a determination with respect to the other matters, requires a consideration of the evidence that has been placed before the court.

The substantive proceedings were commenced by the plaintiffs in July 2002 and in those proceedings, the plaintiff seek as against the defendant a declaration that the mortgage on CT No. 9890 is null and void. The guarantee documents signed by the 2^nd plaintiff is unenforceable, null and void. Damages and an order for cancellation of the mortgage on CT No. 9890 as guaranteed and costs.

The very brief facts are that the first plaintiff purchased with a guarantee from the 2^nd plaintiff a building in Ba and that property was mortgaged to the defendant. There was default under the mortgage and the evidence on behalf of the defendant is that the property has been sold pursuant to the defendant’s power of sale under the mortgage. An agreement for sale was entered on the 10^th April 2003 and transfer documents were lodged for stamping on 16^th May 2003.

A caveat on the title lodged by the previous owner, it would appear delayed the registration of the transfer and that some administrative mismanagement by the Registrar of Titles, has resulted in settlement of the sale being affected on the 30^th September 2004 and the lodgment slip, Annexure NR-7, to the affidavit filed on behalf of the defendant shows that the transfer was lodged for registration on that day.

The plaintiff in his affidavit says that he is operating a busy medical practice from the premises, that as a result he will suffer a loss if he is unable to continue to occupy the premises for that purpose and the submissions on behalf of the plaintiffs detailed five issues for the consideration of the court as to why the relief sought should be granted. These of course initially deal with the substantive matter which is the allegations contained in the statement of claim.

The next issue is that the property is being sold for under value and that the advertisement for sale was misleading in its description of the property and further that the advertisement failed to mention that the property had been burnt in a fire but had been repaired by the plaintiff and further that the plaintiff didn’t receive any advice from the defendant that it was considering any offer to purchase the property and lastly, that there are proceedings on foot seeking to have the mortgage declared null and void.

It would appear to me that all of these issues are issues relating to money and issues that can be resolved by an award of damages at the end of the day. Whilst Lord Diplock in American Cyanamid said at 407 and I quote:

“There is no part of the court’s function at this stage of litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial”

One of the reasons for the introduction of the practice of requiring an undertaking as to damages upon the grant of an interlocutory injunction was that “it aided the court in doing that which was its great object, viz abstaining from expressing any opinion upon the merits of the case until the hearing.”

I don’t wish to go against the words of His Lordship and accordingly I don’t wish to express any opinion as to the merits of the case proper, apart from the expression that I have already made and that is, in my opinion there is nothing before me to suggest that there is any issue that cannot be adequately compensated by way of damages and accordingly, the motion is dismissed.

JOHN CONNORS
JUDGE

At Lautoka
24 November 2004