Lee v Khan [2007] FJHC 103; HBC 378.2004 (19 February 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC 378 OF 2004

BETWEEN:

WILLIAM LEE
Plaintiff

AND:

NASIR KHAN
1^st Defendant

LEONE WERE
2^nd Defendant

MOTORLINK LIMITED
3^rd Defendant

HABIB BANK LIMITED
4^th Defendant

Counsel: Mr. O'Driscoll - for the Plaintiff
Ms. B. Narayan - for 3^rd Defendant
Ms. Ali - for 4^th & 6^th Defendants

Date of Hearing & Decision: 19^th February, 2007

DECISION

1. This is an Extemporé Decision given at the conclusion of a very brief Chambers hearing where the plaintiffs in this action seek leave to amend their claim by the addition of the putative 6^th Defendant who was a bona fide purchaser of a property sold by the 4^th Defendant Bank under mortgagee sale. The applicants now want to plead that this transaction was fraudulent.

2. I earlier drew to the attention of the applicants that this significant allegation against the putative 6^th Defendants was resolved in a judgment of my brother Justice Jitoko in Civil Action No. HBC 147J of 2005S in which the plaintiff in these proceedings was then a defendant facing eviction.

3. I quote from the facts described by his honour in that judgment:

"The defendant was the registered proprietor of the property described in CT 18924 being Lot 36 on DP 4064 situated in Suva. The defendant on the 16^th of April 1999 mortgaged the property to Habib Bank (Mortgage No. 460017) in consideration of an expansion by $80,000.00 of overdraft facilities to Motorlink Limited ("the Company") by the Bank under a Thirty Party Mortgage. The terms of the mortgage saw the defendant as mortgagor responsible for the payment of the principal sum and any further advances made by the Bank to the Company. Additionally, the defendant was required to pay interest on that loan".

4. The Company was subsequently wound up (HBE 28/2002) leaving Mr. Lee (the applicant plaintiff) with a debt and interest of $167,052.94 owed to the bank. Notice of Demand was served on Mr. Lee requiring all moneys due and owing including interest under the mortgage to be paid. When Mr. Lee failed to pay the Bank then proceeded to advertise the mortgagee sale of the property. This was conducted on the 4^th of December 2002. The property was purchased by the putative 6^th defendants having succeeded in their tender of sale and the transfer was effected on the 28^th of February 2005. But at that date William Lee remained on the property and had to be evicted by virtue of my brother Justice Jitoko's Judgment in HBJ 147J of 2005S.

5. In respect of this application Mr. Lee seeks to join Liu Hong and Moon Sheun Yuen as the putative 6^th Defendants in this action. He has filed a draft amended claim which in effect alleges that the putative 6^th defendants and the 4^th defendant bank undersold the property fraudulently.

6. That issue was dealt with at page 5 of my brother Justice Jitoko's judgment in this way:

"The Defendant's allegation of fraud is primarily against the Bank. As against the Plaintiffs, the contention is that they should have known that the assets of the Company upon being wound up was in the hands of the Official Receiver, rather than the Bank. I am not convinced that in the circumstances of this case, the Plaintiffs were required to enquire further and look beyond the Bank's mortgagee sale. As far as they were concerned, the Bank had acted in accordance with the provisions of the mortgage from the Defendant, as mortgagor. As whether the property was properly as asset or not of the Company upon winding up is an issue before the Court in HBC 378/2004".

7. When this application was filed several months ago I drew this decision to the attention of the plaintiffs then solicitor, but there appears to have been a lack of understanding of the impact of my brother Justice Jitoko's decision. I accept my brother's judgment where he said that even by the most liberal of interpretations of fraud he was not able from the evidence before him to support the defendant's argument of fraud on the part of the plaintiffs the putative 6^th defendants in this matter.

8. I drew that particular passage to the attention of the plaintiffs now solicitor last Friday. He sought an adjournment to file further papers and affidavits where he said he would specify what that fraud was. He has not done so. He has not turned up in my Chambers to argue the matter this afternoon but has instructed counsel to appear on his behalf. It is with some regret that I note that he has not provided counsel with proper instructions. Counsel has done his best to advance the application but cannot argue against the effect of Justice Jitoko's ruling. That being the case the notice of motion cannot succeed and is refused. The issue of costs remains a live issue.

9. As to costs I have discussed the matter with counsel. The 4^th defendant very reasonably seeks only $200.00. I note based on the several appearances counsel had to make I would have been prepared to extend costs to at least $600.00 but counsel assures the court that the 4^th defendant merely wishes to obtain a modest cost award and would be satisfied with that. They shall have an order for the payment of $200.00 costs but that sum is to be paid within 7 days of this judgment or else the plaintiffs proceedings are permanently stayed.

10. As for the putative 6^th defendant they have been put to the trouble of coming here to attend to this matter on 3 occasions. They did file a motion which was slightly premature seeking to strike themselves out of proceedings to which they hadn't already been joined. I am satisfied that they should obtain $300.00 costs. Again this sum is to be paid within 7 days of this judgment or the proceedings are permanently stayed.

11. If the costs as aforesaid are paid by Tuesday 27^th February 2007 then I direct that this file is to be referred to the Master for a final pre-trial conference prior to the allocation of fixture.

Gerard Winter
JUDGE

At Suva
Monday 19^th February, 2007

Solicitors
Naco Chambers, Barristers & Solicitors, Suva - for the Plaintiff
Lateef & Lateef, Lawyers, Suva - for the 3^rd Defendant
M.A. Khan Esq, Barristers & Solicitors, Suva - for 4^th & 6^th Defendants