Koro v Hometown Motors Company Ltd [2005] FJHC 67; HBC0456R.2004S (31 March 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 0456R. 2004S

BETWEEN:

JOSEPH KENNETH KORO
PLAINTIFF

AND:

HOMETOWN MOTORS COMPANY LTD.
1ST DEFENDANT

AND:

THE REGISTRAR OF TITLES
2ND DEFENDANT

Counsel for the Plaintiff: S. Valenitabua: S. Valenitabua Esq.
Counsel for the 1st Defendant: A. Singh: Raza & Assoc.
Counsel for the 2nd Defendant: A. Pratap: Attorney-General’s Chambers

Date of Ruling: 31st March, 2005
Time of Ruling: 9.30 a.m.

RULING

On 21st October 2004 this Court granted an ex-parte application by the Plaintiff restraining the 1st Defendant from selling the piece of land described as Lot 2 D.P. 4058 and otherwise known as C.T. 16905, “Naivoco”, situated at Suva. The sale was to be under the Defendant’s powers of mortgagee sale.

This is the 1st Defendant’s application to dissolve the injunction. The sole ground in support of the 1st Defendant’s motion is that the Plaintiff did not have the locus standii to bring the injunction application.

The facts may be briefly summarised as follows. The Plaintiff is a farmer in the province of Ra. At the beginning of 1999 he approached the 1st Defendant, a dealer in vehicles including second-hand and used vehicles, for the purpose of purchasing a lorry to transport farm produce to the market. A vehicle registration No. DL 016, with the price of $15,000.00 was identified and purchased. The Plaintiff made a down payment of $2,000.00. The balance of $13,000.00 was secured over the Plaintiff executing a mortgage in favour of the Defendant over C.T. 16905.

The land in question belongs to the Plaintiff’s mother but the authority to deal with it became vested in the Plaintiff by a power of attorney executed in Sydney, Australia on 6 April 1999 by his mother, before a Justice of the Peace. The Power of Attorney was registered as No. 34248 on 30 April, 1999. The mortgage was executed on 5 May 1999 and registered as mortgage No. 461377 with the Titles Office, on 11 May, 1999. The vehicle DL 016 was registered in the Plaintiff’s name, and was eventually re-sold by him for the sum of $10,000.00. The loan from the 1st Defendant was fully repaid. No action was taken to discharge the mortgage.

The Plaintiff then approached the 1st Defendant for the second time and purchased another vehicle for $23,000.00. A down payment or deposit of $3,000.00 was paid to the 1st Defendant by the Plaintiff. The balance, according to the 1st Defendant, was agreed to by both parties, to be secured by the same instrument of mortgage already executed over C.T. 16905 for the first vehicle DL 016. The Plaintiff denies this, but merely said that he did not sign any mortgage or Bill of Sale document and as far as he was concerned, there was no security given over the balance of the purchase price for the second vehicle. This second vehicle, registration No. DY 016, remained registered with the 1st Defendant.

It would appear from the 1st Defendant’s affidavit of 19 November, 2004, that the Plaintiff began defaulting on his repayment from September 2003, and in April, 2004, the 1st Defendant’s solicitors sent a demand notice to the Plaintiff’s mother, as the registered proprietor of C.T. 16905, for the payment of the balance of the loan then standing at $15,345.53 within 7 days.

The Plaintiff’s mother, the registered proprietor of C.T. 16905 had unbeknown to the 1st Defendant, died overseas on 16 June, 2000. It appears that the Plaintiff did not immediately apply for the Letters of Administration until much later, or at any rate until the Demand Notice sent by the 1st Defendant to his mother via his Nakorotuba Village address in Ra province. In the meantime the Defendant had put in motion legal processes for repayment or sale of the property, beginning with its Demand Notice under s. 77 of the Property Law Act.

The Plaintiff’s application for injunction heard by this Court on 21 October 2004 requested the Court to intervene and restrain the 1st Defendant from proceeding with the sale of the property by way of mortgage sale and stopping the registration of such sale. In his affidavit in support, the Plaintiff attached the 1st Defendant’s solicitor’s letter of 23 July 2004 advising that they had received 3 tenders for the purchase of the house and have accepted the highest of the three and are in fact in the process of transferring the property. The Plaintiff also stated in his affidavit that there had been delay in obtaining his mother, the registered proprietors’, death certificate from Australia, resulting in his inability to obtain the necessary Letters of Administration for the estate in time before filing the action. However, he stated that the application for the letter had been lodged in Court on 15 October, 2004.

The Court after hearing Counsel for the Plaintiff and the reading of affidavit in support, was more than satisfied that there was sufficient merit in the urgency of the application to grant the interim injunction sought. There has, in my view, sufficient notice to inform the Court that the Plaintiff’s application for the Letters of Administration had been lodged and awaiting issuance. Whenever necessary, the Court will take a broad view in the interpretation of the law and apply it for the benefit of the party that will be more prejudiced if the status quo is not maintained. In this instance, the fact is that the Plaintiff and the other beneficiaries of the estate, would have been severely prejudiced if the 1st Defendant was allowed to proceed with the mortgagee sale of the estate only because the Plaintiff’s application to establish his legal capacity to represent himself and the other beneficiaries, was late and was being considered at that juncture by the Court. Equity requires the Court to do all it can to preserve the property by the maintenance of the status quo in the special circumstances of this case. But even if the Court were to rule in favour of the 1st Defendant’s application to dissolve the injunction, there is nothing stopping the Plaintiff from making a fresh application now which, given the views on its merits already expressed, may likely result in the same relief given in favour of the Plaintiff. This would serve no one and no purpose at all.

In this instance, the guiding principles for the grant of an interim injunction as stated in the American Cyanamid case, are clearly in favour of the Plaintiff. There are serious questions to be tried, including the issue of whether the mortgage was intended to extend to cover the purchase of the second vehicle. The balance of convenience as explained above, favours the maintenance of the status quo, while there is already undertaking as to damages made by the Plaintiff.

The Defendant’s application to dissolve the injunction is dismissed.

Costs in the cause.

F. Jitoko
JUDGE

At Suva