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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION No. 598 OF 2007
BETWEEN:
APENISA TUIKORO NAIGULEVU
PHILOMENA MARY NAIGULEVU
Plaintiffs/Applicant
AND:
NATIONAL BANK OF FIJI t/a
COLONIAL NATIONAL BANK
Defendants/Respondents
Appearances:
Ms M. Chan for the Plaintiffs
Mr D. Sharma for the Defendant
Date of Hearing: 31 January 2008
Date of Judgment: 15 February 2008
JUDGMENT
1. Introduction
This is an application for an injunction to restrain the Defendant, National Bank of Fiji trading as Colonial National Bank (‘National Bank’), from further advertising land located at 18 Narain Place, Tamavu, Suva (CT 23404) (‘the land’) for mortgage sale, and/or calling for tenders in respect of the land until the Plaintiffs’ substantive action is determined.
1.1 The parties are in dispute as to matters ultimately going to whether or not the Plaintiffs are indebted to the National Bank under a mortgage over the land, or have indeed paid all monies properly due by them in respect of that mortgage and, they say, more than the monies due. The dispute substantially relates to a company Ebenezer Publishing House Ltd (Ebenezer Ltd) which the Plaintiffs say (and National Bank denies) was set up by the National Bank so that the First Plaintiff could undertake completion of a project he had commenced, namely translating the Bible into the Fijian language. The Plaintiffs say that the mortgage wrongly incorporates monies owed by Ebenezer Ltd, part of which they say Ebenezer never received in any event. The National Bank says that any and all monies said to be owed by the Plaintiffs under the mortgage are properly calculated and due by the Plaintiffs, that the Plaintiffs are in default, and hence the National Bank is fully entitled to foreclose on the mortgage and take steps to sell the land.
2. Application for Injunction
The substantive action was commenced by Writ of Summons of 27 December 2007, together with a Notice of Motion dated 27 December 2007 seeking the following orders:
2.1 The application was made under section 72 of the Property Act and Order 29 of the High Court Rules. It was supported by an Affidavit of the First Plaintiff, Apenisa Tuikoro Naigulevu (Mr Naigulevu).[1]
2.2 The National Bank filed a Statement of Defence along with a supporting Affidavit from the General Manager of the National Bank, Vandhna Narayan (the National Bank Affidavit).
2.3 As for the law, the Fiji Court of Appeal has accepted as applicable to interlocutory relief the principles expressed in American Cyanamid v. Ethicon Ltd [1975] UKHL 1; [1975] AC 396. Lord Diplock’s strictures as set out in that case are important to observe from the outset:
... no part of the court’s function at this stage of the 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: at 407
2.4 The three matters to which the Court must address itself in accordance with American Cyanamid are:
3. Serious Issue to be Tried
As is to be expected, the parties differ substantially on whether there is a serious issue to be tried. The Statement of Claim contains a number of matters said to be arguable. The Defence contests these and in particular presses the striking out of the claim with costs on an indemnity basis: Defence, para 13
3.1 The National Bank focuses upon paragraph 7 of the Statement of Claim which provides:
7. The Plaintiffs’ loss and damage were caused by the negligence and/or breach of duty of the Defendant, its servants or agents particulars of which are as follows:-
(a) coercing the first named Plaintiff into becoming a director of Ebenezer Publishing House Limited, a company incorporated by the Defendant, then failing to advance or drawdown sufficient funds to ensure that Ebenezer Publishing House Limited would continue to perform, then winding up Ebenezer Publishing House Limited, and upon winding up, failing to advise the first named Plaintiff of its actions;
3.2 (a) claim statute barred: The National Bank’s primary position is that Mr Naigulevu and the Second Plaintiff, Philomena Mary Naigulevu (Mrs Naigulevu)’s claim is statute barred and should be struck out. Consistent with the National Bank Affidavit, by way of Written Submissions in support the National Bank says:
... the debt which the Plaintiffs now seek [to] challenge arose on 27th September 1993 when [Mr Naigulevu] signed and accepted the Loan Offer letter from the [National Bank] ... The signature on page 2 of the Loan Offer letter is that of [Mr Naigulevu] and the first paragraph on page 2 of the said letter states that [Mr Naigulevu] was to sign the said document if he accepted the loan offer. [Mr Naigulevu] signed the letter to show his acceptance. [Mr Naigulevu and Mrs Naigulevu] now seek to challenge the components of the loan as it was in 1993. The cause of action arose in 1993 because [Mr Naigulevu and Mrs Naigulevu] were or ought to have been aware of the loan amount and its components in September 27, 1993. They had six years from that date to commence an action in tort if they felt that the actions of the [National Bank] were negligent. They did not do this and only questioned the debt in 2003 when they had defaulted under their Mortgage and the [National Bank] was seeking to sell the mortgaged property: National Bank Written Submissions (NBWS), 28 January 2008, para 9
3.3 The Statement of Defence to the substantive action says, amongst other matters that the National Bank:
... opposes any application for an injunction and says that the Plaintiffs’ claim is now statute barred in light of the fact that the basis for their action is a claim in tort and the cause of action (if any) started in 1993 thereby making this application outside the 6 year limitation period: Statement of Defence, 8 January 2008, para 3
3.4 In Written Submissions the National Bank says that as there was no Reply to the Defence and at the date thereof had to hand no Affidavit in reply to the National Bank Affidavit:
There is no defence by the Plaintiffs to the claim by the Defendant and as proved by the loan offer letter dated 23rd September 1993 that the Plaintiffs’ claim is now statute barred: NWBS, para 10
3.5 In support of the submission that the Court should therefore strike out the substantive action, the National Bank relies upon Thomas v. Murti [2005] FJHC 644 and Riches v. Director of Public Prosecutions [1973] 2 All ER 935
3.6 The general rule is that a claim or cause should be struck out only in ‘the clearest case’ or ‘the plainest and most obvious case’. As Megarry VC said in Gleeson v. J. Wippell & Co Ltd [1977] 1 WLR 510, cited in Thomas and Murti:
First, there is a well-settled requirement that the jurisdiction to strike out an endorsement or pleading, whether under the rules or under the inherent jurisdiction, should be exercised with great caution, and only in plain and obvious cases that are clear beyond doubt. Second, [Carl] Zeiss [Stiftung v. Rayner & Keeler Ltd and Ors] No. 3 [1970] Ch. 506 established that, as had previously been assumed, the jurisdiction under the rules is discretionary: at 518
3.7 In Riches v. DPP Davies, Stephenson and Lawton, LJ canvassed in detail the authorities on striking out where the argument is that the claim is barred by the Statue of Limitations. Reference was made to Dismore v. Milton [1938] 3 All ER 762, which is authority for exceptions to the proposition that in the face of a well-founded limitations defence, courts should strike out a claim:
... that was a case which was confined to an allegation that the statement of claim disclosed no cause of action; it was not one of the cases where, either alone or together with that allegation, it was said that the action was frivolous and vexatious and an abuse of the process of the court. In his judgment, Greer LJ, as one of the reasons for the decision at which he had arrived, said this:
It is because a plaintiff may be able to show that he is entitled to bring his action, notwithstanding the expiration of the statutory period, by reason of one of the exceptions contained in the Limitation Act ... When the cause of action arose, he may have been an infant, or non compos mentis: at 763
That is perfectly true; but in the present instance it is not suggested that the plaintiff enjoys any of the escape clauses from the provisions of the Limitation Act 1939, and I am bound to say, for myself, that I think that the dicta in Dismore v. Milton, even though they are confined to a case where it is said that there is no cause of action, are somewhat too wide:[2] per Davies, LJ, at 938
3.8 In addressing Dismore v. Milton, Lawton, LJ said the case had led to ‘much waste of time over the years which have gone by since it was decided’:
The object of RSC Ord 18 r 19, is to ensure that defendants shall not be troubled by claims against them which are bound to fail having regard to the uncontested facts. One of the uncontested sets of facts which arises from time to time is when on the statement of claim it is clear that the cause of action is statue-barred and the defendant tells the court that he proposes to plead the statute and, on the uncontested facts, there is no reason to think that the plaintiff can bring himself within the exceptions set out in the Limitation Act 1939. In those circumstances it is pointless for the case to go on so that the defendant can deliver a defence. The delivery of the defence occupies time and wastes money; and even more useless and time-consuming from the point of view of the proper administration of justice is that there should then have to be a summons for directions, and an order for an issue to be tried, and for that issue to be tried before the inevitable result is attained. It seems to me that when that situation arises the comments of Lord Blackburn in Metropolitan Bank Ltd v. Pooley[3] are applicable. He said that a stay or even dismissal of proceedings may ‘often be required by the very essence of justice to be done’. The White Book,[4] having called attention to that statement by Lord Blackburn, goes on to say that the object is ‘to prevent parties being harassed and put to expense by frivolous, vexatious or hopeless litigation’. It would be contrary to the public interest that justice should be shackled by rules of procedure when the shackles will fall to the ground the moment the uncontested facts appear; and that is just this case: at 941-42
3.9 In the present case, no contention can be or is made that the categories of exception listed in Dismore v. Milton apply. However, is strike out the proper outcome because the present claim is ‘the clearest case’ or ‘the plainest and most obvious case’? Does it come within this category of case?
3.10 In Thomas v. Murti the High Court considered that the application for strike out was made in ‘such a plain and obvious case that warrants the court making an order in accordance with the provision of Order 18, Rule 18’ and, accordingly, the ‘Order of the Court will be ... that the Writ of Summons against the 1st defendant be wholly struck out’: at 3
3.11 There, the Writ of Summons was dated 23 February 1995, filed with the Court on that day. The Statement of Claim vis-à-vis the First Defendant, said:
That on or about December 1985 the First Defendant fraudulently represented that he had the machine for sale and at the time of making the said presentations the First Defendant intended and well knew or ought to have known that the Plaintiff would rely on the said representation and would be induced thereby to enter into business arrangements or contract: at 2
3.12 The Court pointed out that the cause of action ‘arose a little over 9 years prior to the Writ of Summons being filed with the court. The cause of action is clearly in breach of the statute of limitations and is statute barred’: at 2
3.13 To address this question in the present claim, it is necessary to canvass the submissions of the parties on the limitation issue.
3.14 (b) section 8(1) Limitation Act: An Affidavit in reply to the National Bank Affidavit was filed by Mr Naigulevu on 25 January 2008. It responds to a number of matters in the National Bank Affidavit and on the limitation of actions aspect states: ‘I am advised by my lawyer further that under the Limitation Act section 8(1) my rights subsist for 20 years.’ At the hearing section 8(1) was referred to, Counsel for Mr Naigulevu and Mrs Naigulevu submitting it supported the proposition that their claim was not statute barred, Counsel for the National Bank contesting this.
3.15 Section 8(1) of the Limitation Act (Cap. 35) is contained within that section of the Act headed:
B- ACTIONS TO RECOVER MONEY SECURED BY A MORTGAGE OR CHARGE OR TO RECOVER PROCEEDS OF SALE OF LAND
3.16 It states:
No action shall be brought to recover any principal sum of money secured by a mortgage or other charge on property, or to recover proceeds of the sale of land, after the expiration of twenty years from the date when the right to receive the money accrued
3.17 The National Bank’s response is that this provision relates to recovery by a mortgagor of monies owning under a mortgage. The submission for Mr Naigulevu and Mrs Naigulevu is that section 8(1) can be read to cover the situation pertaining here: namely, that the Statement of Claim avers, amongst other matters, loss suffered including:
(a) unnecessary deduction from income of $330.00 per fortnight between July 1993 to August 2001, totaling $30,977.40;
(b) over-payment of the sum of $50,000;
(c) ...
(d) ....
(e) ...
(f) ...
(g) loss of interest on FNPF contributions, necessitated by an unnecessary 2nd withdrawal of $39,399 toward the housing loan;
(h) ...
(i) loss of opportunity to invest $30,977.40 for the Plaintiff’s benefit;
(j)
(k) unnecessary payment of interest at 12.5% per annum;
(l) ...
3.18 All the above are monies and/or money issues referable to the claim that Mr Naigulevu and Mrs Naigulevu have overpaid on the National Bank mortgage and, rather than being in debt under the mortgage to the National Bank, the National Bank owes them monies under it. They say that in recognition of this overpayment, at a meeting held on 28 February 2006 with the National Bank (Legal Counsel), an offer of $25,000 was made to them in settlement. It is further said that in a meeting on 10 March 2004 [sic] between Mr Naigulevu and Mrs Naigulevu’s lawyer and National Bank officials, the latter ‘conceded ... so much’ insofar as the contention that ‘calculations had exceeded $50,000 as the amount owed by [National Bank] after separation of accounts’ (referring to the Ebenezer Limited account and the land): Affidavit of Mr Naigulevu 31 January 2008, para 8
3.19 Is the alleged over-payment of the sum of $50,000 able to be characterised as ‘any principal sum of money secured by a mortgage or other charge on property’ so as to seek the application of section 8(1)? Can an overpayment, being (as is alleged here) a substantial overpayment which according to Mr Naigulevu and Mrs Naigulevu has accrued and been owing to them for some time under the mortgage,[5] be characterised as ‘principal’ within the meaning of ‘any principal’ under section 8(1)?
3.20 ‘Principal’ in relation to a mortgage is defined generally as the amount borrowed, or part thereof, that remains unpaid (excluding interest); that part of a monthly payment that reduces the mortgage; the money used to pay down the balance of a loan; the amount of debt, not counting interest, left on a loan. What Mr Naigulevu and Mrs Naigulevu are effectively arguing is that they are owed money by National Bank rather than National Bank’s being continued to be owed money by them on the mortgage. Further they argue that the monies owed to them have been paid by them to the National Bank under the mortgage. What they assert, in fact, is that they therefore ‘loaned’ money to the National Bank. Can it therefore be said here that as ‘any principal’ includes ‘the amount of debt, not counting interest, left on a loan’ – ‘loan’ is applicable to the monies Mr Naigulevu and Mrs Naigulevu say is owed to them by the National Bank, in other words, their ‘loan’ to the National Bank, so bringing it within the meaning of section 8(1)?
3.21 Strouds Legal Dictionary defines ‘principal security’ as ‘principal or primary security’, referring the reader to Security for Money. Of the several definitions there, the most apt appear to be ‘... the more general meaning of "security" is, money secured on property (per Farwell J.); but that has been termed "its narrow, archaic, meaning" (per Williams LJ), yet still it is its prima facie meaning, through "a flexible one" (per Romer LJ), and, semble, it will, somewhat easily, yield to a context; ...:’ and ‘Mortgage, pledge, charge, or other security’: Rennett v. Mathieson 40 Sc LR 421; Craighead v. Fraser (1920) SC 674.[6]
3.22 So, what is the context here? The National Bank says, a simple, straightforward mortgage in relation to which monies remain outstanding and are obliged to be paid by Mr Naigulevu and Mrs Naigulevu. On the other hand, Mr Naigulevu and Mrs Naigulevu say that the context is a mortgage upon which they have paid out the principal owing to the National Bank, and by reason of their overpayment they are effectively owed principal under the mortgage. Again, may this come within section 8(1)?
3.23 Further, I observe that the term used is not ‘principal sum of money’ but ‘any principal sum of money’ (emphasis added). Is this wording apt to the proposed reading of the provision by Counsel? There may well be authority on ‘principal’, ‘any principal’, ‘any principal sum of money’ and on the reading of section 8(1). It is unlikely there is not. This needs to be canvassed and considered before any final determination can be made.
3.24 The mortgage in question (Annexure ‘AN 4’ to the Affidavit of Mr Naigulevu) refers to ‘any principal monies’: clause 2 Earlier it provides that the mortgagee ‘will on demand in writing pay to the Bank all and every sum money loans and advances lent to or made by the [National] Bank or which may hereafter be lent or made available to or for the use or accommodation or at the request of the Customer ...’: clause 1
3.25 This provides an argument against the proposition that section 8(1) can be interpreted as including monies said to be owed to mortgagees under the mortgage. Taking into account the terms of the particular mortgage, is such money ‘secured by a mortgage or other charge on property’, per section 8(1)? On the other hand, can these mortgage terms dictate the interpretation of ‘any principal sum of money’ as the phrase appears in the Limitation Act? The provision relates to mortgages generally and although the words in the particular mortgage are relevant so need to be taken into account, ultimately the provision must be interpreted according to the meaning to be given to the words as they appear in the legislation itself and by reference to authority. The ordinary rules of legislative interpretation must apply. The words must be given their ordinary meaning. Is the ‘ordinary meaning’ that which appears in the National Bank’s mortgage? This is it seems to me a matter for argument. It cannot be decided upon at this stage.
3.26 Ultimately it may be considered untenable that section 8(1) can be employed in favour of the mortgagees as propounded by Counsel for Mr Naigulevu and Mrs Naigulevu in this proceeding. However, full argument by reference to authorities was not engaged in at the stage of the application for an injunction pending the hearing of the substantive matter.
3.27 In all the circumstances of this case it is not possible to rule this out as at least arguable. Perhaps if this were the only matter going to this point and the only argument put forward by Mr Naigulevu and Mrs Naigulevu, that could weigh in favour of the National Bank’s position that the claim should be struck out. However, there is first the principle that striking out applies only in the ‘most obvious’ or the ‘clearest’ case, and secondly it seems to me important to go further to other aspects of the case as put for Mr Naigulevu and Mrs Naigulevu.
3.28 (c) fiduciary relationship: As noted, the claim is made that the National Bank was in a fiduciary relationship with Mr Naigulevu and Mrs Naigulevu, and that this puts them in a special position vis-à-vis the National Bank’s transactions with them, providing a basis for the action initiated here.
3.29 ‘Fiduciary relationship’ is defined in Snell’s Equity;
A fiduciary relationship arises where one person has undertaken to act for another in a particular manner in circumstances giving rise to a relationship of trust and confidence. The distinguishing feature of such a relationship is the fiduciary’s duty of loyalty. Thus he must act in good faith, he must not profit from his position and he must not place himself in a position where his duty and his interest may conflict: para 6.-05 (30th edition – cited in Lawlor v. NBF Asset Management Bank [2001] FJHC 122 (17 August 2001), at 4
3.30 In Lawlor the Court provided examples of ‘presumed fiduciary relationships’ as including trustee and beneficiary, agent and principal, solicitor and client, director and company and partners: at 4
3.31 Mr Naigulevu and Mrs Naigulevu claim that the National Bank breached their fiduciary duty in that the personal loan and loan advanced to Ebenezer Limited were ‘merged’ and the National Bank:
3.32 The National Bank complains that the fiduciary duty it is alleged to have breached is not particularised, referring to Statement of Claim para 7(i) wherein it is stated that the National Bank failed ‘to ensure that in all the circumstances, it was properly carrying out its fiduciary duty in the relationship’. In the Statement of Defence, the National Bank addresses the fiduciary duty proposition, stating amongst other matters that despite the lack of particulars, ‘in any event the Defendant denies that it breached any fiduciary duty to’ Mr Naigulevu and Mrs Naigulevu: para 8 [i]
3.33 In oral and written submissions, Counsel for Mr Naigulevu and Mrs Naigulevu addressed the nature of a fiduciary relationship, the facts upon which it is contested for here, and legal authority put forward in support.
3.34 Generally, the law does not recognise as ‘fiduciary’ the relationship subsisting between a bank and customer in the ordinary course. However, a special relationship between a bank and a customer can give rise to a fiduciary relationship. This category of duties was recognised in Decima and Greg Lawlor v. NBF Asset Management Bank [2001] HBC0333/96S (17 August 2001) by Scott, J:
Not all fiduciary relationships however fall into these presumed categories [trustee and beneficiary, agent and principal, solicitor and client, director and company and partners] and as pointed out in Tufton v. Sperni [1952] 2 TLF 516 and Lloyds Bank v. Bundy [1975] 1 QB 327 what may be termed ad hoc fiduciary duties may arise from a special nature of a particular relationship.
3.35 In Pilmer v. Duke Group Limited (In Liq) (2001 75 ALJR 1067; [2001] HCA 31 (31 May 2001) Kirby, J. pointed out the need for caution in finding a fiduciary relationship between parties, simply because the one was vulnerable, the other more powerful, and the latter appeared to have caused harm or ‘done wrong’ to the former:
... where a suggestion is made that fiduciary obligations arise in a new relationship or out of particular facts it is essential that Judges perform their functions by analogy from settled principles. They are not entitled to distort those principles. Nor may they superimpose an equitable classification on facts simply because to do so would afford better or larger remedies to a Plaintiff who appears to have suffered some wrong.
Specifically it is not sufficient to impose fiduciary obligations on an alleged wrongdoer simply to point to the vulnerability of the person claiming to have been wronged. Many people who are in an arms length relationship with each other (if they have any real relationship at all) experience a serious disproportion of power in their dealings ... to call for the fiduciary obligations much more than vulnerability is required: at para 134ff
3.36 For Mr Naigulevu and Mrs Naigulevu, as to the alleged fiduciary relationship between them and the National Bank, they:
... submit that the [National] Bank was in a special relationship of proximity and thus, beyond the normal scope of normal banker-customer relationships, through the following circumstances: incorporating a company for the Plaintiffs ..., the [National Bank] compelling [Mr Naigulevu and Mrs Naigulevu], out of duress and fear of loss of their home, to move their personal and loan accounts from ANZ and from HGC to the [National Bank]’s Walu Bay branch, and then merging the personal home loan to the loan of Ebenezer Publishing House Limited ... The [National Bank] says [the National Bank’s then solicitor] did not have authority [in 2006] to offer any refund to [Mr Naigulevu and Mrs Naigulevu]. This also raises a triable issue of the authority of a bank manager to make such an offer. It is a live issue, given the denial of the Bank: Written Submissions 30 January 2008
3.37 The fiduciary relationship said to exist and relied upon by Mr Naigulevu and Mrs Naigulevu is contended to have come into existence in 1993, when the mortgage with the National Bank was entered into, and arising out of the alleged setting up of Ebenezer Limited by the National Bank. Hence, besides a denial by the National Bank of a role in establishing Ebenezer Bank, or ‘merging loans’ without disclosure, this may be challenged as statute barred.
3.38 However, albeit it is said to have come into effect more than 13 to 14 years ago, it appears to me that the fiduciary relationship is explicitly or specifically associated in the claim with more contemporary events. That is, that the establishment of the fiduciary relationship (if indeed there is one) occurred ‘out of time’ does not (as I understand the argument) eliminate its relevance or effectiveness as an issue vis-à-vis more recent events.
3.39 It is, as I understand it, claimed that more contemporary events have occurred which, it is understood, are associated with, connected with, or arise out of the (alleged) fiduciary relationship. This is Mr Naigulevu and Mrs Naigulevu’s position as to discussions with the National Bank for settling the dispute between them upon a basis (as they assert) of the National Bank’s paying monies to them, and then it is said reneging on the proposal to (re)pay them monies they say are owed to them under the mortgage, by reason of their alleged overpayment. The acknowledgement that they had overpaid, and that monies were due to them from the National Bank, is said to have occurred in 2006. The overpayment they say arose out of the original position in 1993 when they entered into the mortgage and when the matters pertaining to Ebenezer Publishing had occurred.
3.40 There appear to be five major disputes on the part of the National Bank in relation to this aspect of the claim:
3.41 The material before me shows Ebenezer Limited being wound up on 10 April 1992, with no appearance for or on behalf of Ebenezer Limited, ‘although it has been duly served’. This may support Mr Naigulevu and Mrs Naigulevu’s proposition that the National Bank was somehow associated with the setting up and existence of Ebenezer Limited. That is, Mr Naigulevu says that Ebenezer Limited was not his idea but the National Bank’s and that he was neither its initiator nor the cause of its demise and winding up. All this he attributes (albeit denied) to the National Bank. On the other hand, it may show simply that the National Bank was (as the Order indicates) the petitioner and creditor of Ebenezer and did what creditors do in circumstances where a company cannot meet its debts: seeks a winding up. Mr Naigulevu’s failure to appear may not indicate he effectively ‘had nothing to do’ with the company as he asserts.
3.42 Albeit it seems to me that any case put forward to support a fiduciary relationship or based upon a fiduciary relationship might be described as being thin or even very thin indeed, it is evident that this is a matter of considerable dispute between the parties with an array of facts being attested to on both sides. There is clearly a dispute about facts and ultimately this could have bearing upon the contemporary aspect of negotiations said to have taken place between the parties (in 2006). It cannot be resolved on the material before me.
3.43 Hence, taking into account the contemporary aspect of the matter, which in turn is understood said to rely or at least to be associated with the alleged fiduciary relationship, I am unable to say there is no issue to be tried on this part of the claim.
3.44 (d) possible claim in contract: In going through the material, it appears that there may be a contemporary claim in the alleged agreement on the part of the National Bank to pay to Mr Naigulevu and Mrs Naigulevu the sum of $25,000 in recognition of an ‘overpayment’ by them under the mortgage. Was there an agreement constituting a binding contract? Was there no binding contract because the negotiations were still unresolved in that it appears that $25,000 may not have been settled upon? Or was it? Was it even offered or offered without authority? Did the National Bank representative have authority to engage in these negotiations or to purport to settle the matter? This is a highly contentious issue as between the parties both as to whether there was overpayment and whether the National Bank ever agreed to (re)pay to them monies allegedly owed by it to them by reason of any such overpayment.
3.45 Here, it appears to me, that there is at least an arguable case and a serious matter to be tried, one that certainly cannot be determined upon the material before the Court at present.
3.46 (e) ‘without prejudice’ correspondence: The Affidavit of Mr Naigulevu annexes correspondence which is marked ‘without prejudice’. This is put forward as evidence in support of the claim.
3.47 The question arises whether correspondence can properly be accepted in evidence which the National Bank says constitutes a Calderbank offer and which it is understood Mr Naigulevu and Mrs Naigulevu put forward as supporting their contention as to an overpayment by them and the National Bank’s acknowledgement of its existence and that it had to be remitted to them so as to reach finality.
3.48 Slaveski v. Economakis [2006] VSC 2244 (21 June 2006) is put forward to the Court by the National Bank on this issue. There, Hargrave, J. found that a letter marked ‘without prejudice’ was admissible in evidence, however, in clearly defined circumstances. His Honour said:
Mr Slaveski submitted that, as the without prejudice letter was so marked, the without prejudice letter ought not to have been produced in court, or relied upon by the magistrate ...
There is a rule of evidence that communications between parties which are genuinely aimed at settlement of a dispute between them cannot be put in evidence without the consent of both parties in the event that the dispute is not settled. This rule is called ‘without prejudice privilege’.
In order for the privilege to operate, it is essential that there must be some person in dispute or negotiation with another person, and the statement which it is sought to exclude from evidence must have some bearing on negotiations for a settlement of that dispute.
The mere use of the words ‘without prejudice’ in the communication ... does not operate to attract the rule, or privilege. The court is required to consider the statement in its context and decide for itself whether the privilege applies. Thus a letter marked ‘without prejudice’ which is not in fact a genuine attempt to settle a dispute will not be privileged from production in evidence, and a letter which is so aimed will be privileged even it if it is not marked ‘without prejudice’: at 3
3.49 His Honour went on to say that the ‘without prejudice’ letter in the case was not, ‘when viewed in its proper context, privileged from production in evidence before the magistrate’:
At the time the without prejudice letter was written there was in fact no dispute between the parties. This is because the [Victorian Civil and Administrative Tribunal] proceeding had been decided and orders made. The plaintiffs had elected not to seek leave to appeal that result. The VCAT orders had been filed in the Magistrates’ Court.
There was no dispute to settle in these events. The without prejudice letter was simply a request for time to pay an existing obligation which was the subject of a court order. Such a request is not one which is properly characterised as a genuine attempt to settle a dispute. Accordingly the magistrate was right to have regard to the without prejudice letter, and no error of law is disclosed in that regard: at 3
3.50 The facts are not similar here, as expressed in the material and particularly as put by the National Bank. I observe in the present case, however, that in its submissions supporting the National Bank’s patience and efforts to negotiate a settlement with Mr Naigulevu and Mrs Naigulevu, resort appears to be made to the aforementioned letters or at least some of them as an evidentiary source.
3.51 Taking into account the collocation of issues outlined above and as contained in the material, I am reluctant and indeed am unable to rule that this material is inadmissible. Should the parties wish to make further submissions on the point I would prefer an opportunity to consider the matter further in a hearing with submissions on this point in this context.
3.52 (f) Summing Up: Adverting to the matters in the claim and as referred to above, it may be that singly each, or some, might not in some views be considered to give cause to the contention of a ‘serious matter to be tried’ or ‘an arguable case’. However, taken together it appears to me that collectively they cannot be said to constitute a ‘hopeless case’ or ‘the plainest and most obvious case’, nor ‘the clearest case’: per Thomas v. Murti [2005] FJHC 644; Riches v. Director of Public Prosecutions [1973] 2 All ER 935 Nor can it be said that there is no arguable case or no serious issue to be tried: American Cyanamid v. Ethicon Ltd [1975] UKHL 1; [1975] AC 396
3.53 Taken in total, at this stage of consideration I do not believe the proceeding should be struck out. It further appears to me that Mr Naigulevu and Mrs Naigulevu have met the first requirement of the Cyanamid test.
4, Damages an Adequate Remedy
Are damages an adequate remedy here? Mr Naigulevu and Mrs Naigulevu face a considerable barrier on this point. The authorities are clear. The approach of this Court is clear. Rarely, if at all, do the authorities allow for, or this Court endorse, the issue of an injunction to prevent a mortgagor from foreclosing on a mortgage, and advertising, tendering and selling property subject to it. If such a step is taken, then the quid pro quo is that the party in whose favour the injunction is issued is obliged to pay into court the full sum to which the mortgagor is entitled, should the mortgagor fail and the mortgagee succeed.
4.1 The National Bank has put forward a number of authorities on this point. In Matthie v. Edwards (1847) 73 ER 776 Lord Cottenham LC said:
Now [the power of sale] may undoubtedly be often used for purposes of oppression. They are, however, powers which the party having a power of the property thinks proper to confer on the individual from whom he borrows the money; it is a bargain; one party parts with his money, and he has to pay himself out of the property upon which it is charged; and it is for the other party, who creates the mortgage, to consider whether he has not given too large a power to the individual with whom he is dealing. But when once it is given, the party advancing his money is perfectly entitled to execute the power which such a contract gives him ... [H]owever if the power is sought to be exercised for exorbitant purposes, without a due regard to the interest of the parties concerned, this Court will interfere under certain circumstances, and, like other pledges, if the individual comes and deposits the money, the Court will, under certain circumstances prevent a party from exercising that power arbitrarily, but not without the actual deposit of the sum which the other party is entitled to.
Now it is quite clear that the interests of society require, and the justice of such a case requires that those powers, when they do not come within the principles on which the Court has acted, should not be interfered with; it is merely a power which the individual [mortgagor] has given: at 779
4.2 Insofar as injunctions sought to forestall foreclosure of a mortgage and sale of property, this principle is generally adhered to strictly:
4.3 In Kim v. Bank of Baroda [1999] FJHC 39 (2 June 1999) this Court applied that principle where an application was made for an interlocutory injunction restraining the Bank of Baroda (the Bank) from exercising its rights of mortgagee sale pending determination of the substantive action against the Bank. An agreement had been reached between the parties for Mr Kim to pay $2000.00 a month until he could sell a property to reduce monies owed on the subject property. The argument there was that the Bank was in breach of the agreement when it advertised the property for mortgagee sale despite continuing to accept mortgage payments. Even if the sale were put off, said Counsel, the Bank was well-secured. For the Bank it was submitted:
4.4 The Court said:
There is no doubt that Clause 8 of the Mortgage between [Mr Kim] and the [Bank] gives the Defendant the powers of sale ‘immediately upon or at any time after default in payment’. Whilst [Mr Kim] argues that there has been no default in payment, there is no doubt at all that important information in relation to [Mr Kim]’s attempts to re-finance the loon, and the [Bank]’s willingness to give [Mr Kim] time to refinance, were not disclosed [to] the court when the application for interim relief was made.
This factor alone would justify the dissolution of the injunction: at 2
4.5 Shameem, J. went on to address the issue of payment into court, saying:
However, in addition, [Mr Kim] is unable to pay into court the amount of the judgment debt. The [Bank] on the other hand, as a bank, is in a position to pay damages, if [Mr Kim]’s action is successful. In Inglis and Anor v. Commonwealth Trading Bank of Australia (1972) 126 CLR 161 the High Court of Australia ... held that injunction should not be granted restraining a mortgagee from exercising powers of sale conferred by a mortgage unless the mortgage debt is paid into court: at 2
4.6 Whilst finding for Mr Kim on the question of ‘serious issues to be tried’, Shameem, J. held that damages would be an adequate remedy if he were ultimately successful, and that the interim injunction should be dissolved, leaving the Bank free to continue with its mortgage sale.
4.7 In Powell v. ANZ Banking Group Ltd [1998] FJHC 160 (20 November 1998) Pathik, J. canvassed extensively the authorities on mortgagee’s rights to power of sale vs the position of the mortgagor seeking an injunction not restrain the sale. There, an interim injunction had been granted, the Powells admitted they owed a debt to ANZ Banking Group (the Bank), however stated that in ‘the next three months we would be able to pay our total debt to the [Bank]’: at 2 The Bank had already accepted a tender for the sale of the property and had entered into a sale and purchase agreement with a purchaser (to the Powells’ knowledge and prior to the grant of the interim injunction). For the Bank, it was said ‘it is too late in the day to make this application as the [Powells] had plenty of time after the Notice was given by the [Bank]. The ... [Bank] had already entered into a sale and purchase agreement and it is impossible for it to get out of it’: at 2
4.8 As to the facts, the Court said:
This is a case where I find that the Bank, which is the Mortgage, is only exercising its rights under the mortgage. There is no doubt that the [Powells] are substantially in arrears and have not been able to meet their commitments despite opportunity having been given them to do so. It appears that they are in no position to pay and there is no satisfactory evidence that they are likely to have a windfall from sale of [Yaqona, another property]. The assertion in the affidavit that [Mr Powell] will be receiving about half a million dollars from [Yaqona] sale in September has not materialised. It seems that [Mr Powell] is merely building a castle in the sky: at 3
4.9 As to the law, the Court continued:
... Injunctions are an equitable remedy and are within the Court’s discretion. Injunction will be refused if the Plaintiff can be fully compensated by an award of damages. In London & Blackwell Railway Co v. Cross [1886] UKLawRpCh 7; (1886) 31 ChD 354 at 369 Lindley LJ said: ‘The very first principles of injunction law is that prima facie you do not obtain injunction to restrain actionable wrong for which damages are the proper remedy.’
4.10 Pathik, J. went on to observe that he had borne in mind the principles under Cyanamid Co. v. Ethicon Ltd [1975] UKHL 1; (1975) AC 396 and in particular ‘the balance of convenience’:
... when an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be in violation of the plaintiff’s legal right is made upon contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesi the existence of the right or the violation of it, or both, is uncertain and will remain uncertain until final judgment is given in the action. It was to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved that the practice arose of granting him relief by way of interlocutory injunction; but since the middle of the 19th century this has been made subject to his undertaking to pay damages to the defendant for any loss sustained by reason of the injunction if it should be held at the trial that the plaintiff had not been entitled to retrain the defendant from doing what he was threatening to do: per Diplock, LJ, at 406
4.11 From Cyanamid, Pathik, J. noted further by reference to Diplock, LJ:
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: at 406
4.12 His Honour adopted Denning, LJ’s words in Hubbard v. Vosper (1972) 1 All ER 1023:
... in considering whether to grant an interlocutory injunction, the right course for a judge is to look at the whole case. He must have regard not only to the strength of the claim but also to the strength of the defence, and then decide what is best to be done: at 1029
4.13 The Court held that damages was an adequate remedy and the case was not a proper one for the grant and continuation of the interlocutory injunction or to maintain the status quo until the trial:
The grounds are not strong enough to prevent the exercise by [the ANZ] of its powers under the security documents and hence no heed could be given to the arguments put forward by the [Powells] for the purposes of this application. It will open the floodgates if I were to accede to the continuance of the injunction in cases of this nature involving mortgagees. The [Powells] overlooked the terms and the covenants to which they found themselves engaged when they executed the security documents: at 5
4.14 Counsel for Mr Naigulevu and Mrs Naigulevu relied upon Air Pacific Limited v. Airports Fiji Limited (2004) HCF, Civil Action: HBC 418F 2003L (24 February 2004). There, an order was granted by the High Court restraining Airports Fiji Limited (Airports Ltd) from ‘dealing with offices 19 and 20 on the ground floor of the arrivals concourse at the Nadi International Airport’. An interlocutory order had been granted earlier, ‘restraining [Airports Ltd] from dealing with the premises until further order of the Court’: at 1
4.15 In Air Pacific Limited three causes of action were pleaded:
4.16 The Court held that there was a serious issue to be tried, and that damages would not be an adequate remedy, saying:
Whilst it would appear from the material filed that damages may be a remedy, it is the opinion of the court that damages may not be an adequate remedy in the circumstances. [Air Pacific] seeks the occupation of premise 19 and 20 on the ground floor of the arrivals concourse at Nadi International Airport, as it requires an appropriate prominence as the national carrier at the main International Airport of the Country.
Should it be deprived of occupation of these premises, it is difficult to see that damages, if they were capable of assessment, would in fact be an adequate remedy for the loss of profits or loss of business that may flow as a result of that deprivation: at 2-3
4.17 The Court said that as damages would not be an adequate remedy, on the balance of convenience, the injunction should be granted.[9]
4.18 Albeit the general rule is that the question of whether damages will be an adequate remedy is dealt with separately from the balance of convenience, in some of the cases these issues appear to have been dealt with in combination, or at least the balance of convenience has had some impact on the question of damages.
4.19 I accept the general rule as earlier stated, namely that injunctions are not an appropriate remedy where mortgage foreclosure and sale of property under mortgage is in issue and abide by those authorities. I accept also that the Court looks at the question whether damages are an adequate remedy generally before looking to the balance of convenience.
4.20 However, it appears to me that based upon the aforenoted authorities it is not inappropriate to look at the balance of convenience before determining finally on the issue here. This is because of the complication in the present matter which seems to me to come within the categories of complication outlined in some of the foregoing cases. I refer to this and them again below.
5. Balance of Convenience
Where does the balance of convenience lie? One proposition can be that the National Bank having commenced action to foreclose the mortgage in 2003, then having ceased and recommenced only in 2007, could be taken as suffering no or little inconvenience to await the outcome of the substantive action, staying the foreclosure and sale or having an injunction issued to require it. Having waited this long, how can another month or few months at the most – for hearing and determination of the substantive matter – make a difference? Contrary to this, however, is the proposition that the National Bank has exercised due and good patience in endeavouring to have the arrears of the mortgage (as the National Bank calculates them) paid by Mr Naigulevu and Mrs Naigulevu and have done more than their share in awaiting an outcome which resolves the matter, giving them a fair or more than fair chance to put the account in order and keep payments up to date, as well as engaging in negotiation. From the National Bank’s perspective:
[Mr Naigulevu and Mrs Naigulevu] continue in occupation of the property without making any loan repayments since 2003: Written Submissions, 28 January 2008, para 17[10]
5.1 In light of the disputation and the way in which the material can be interpreted, I do not accept that the delay on the part of the National Bank and the hiatus between the 2003 efforts to sell and those now engaged in, some three or four years later, can tip the balance of convenience toward the Plaintiffs.
5.2 The property in the present case is the family home. On the one hand, it may appear odd that the Courts are strict in their application of the right of a mortgagee to sell without any injunctive process being available for the resident mortgagor. I say this, because of the strong position taken in British law as stated, for example, in Blackstone’s Commentaries as to a home being ‘his castle of defence and asylum’[10] and Semayne’s case ‘a man’s home is his castle’.[11]
5.3 On the other hand, as the authorities have said, a person who enters into a mortgage is taken to have done so in the full awareness of the reality: that if the mortgagor defaults, then the mortgagee has a right of sale.[12] True it is that sentiment, attachment, family life and family happiness are bound up in ‘the family home’. Yet as was said by this Court in Powell v. ANZ Banking Group Ltd [1998] FJHC 160 (20 November 1998) earlier referred to and applying the principles stated by Diplock, LJ:
It will open the floodgates if I were to accede to the continuance of the injunction in cases of this nature involving mortgagees. The [Powells] overlook the terms and the covenants to which they fund themselves engaged when they executed the security documents: per Pathick, J, at 5
5.4 A family home did not appear to be the asset in question there. Rather, business interests were at the core of the matter. Nonetheless, the principle remains applicable. If as a matter of course, in consequence of residentially associated sentiment, attachment, appurtenances of family life, etc this Court were to recognise as ‘special circumstances’ mortgagee foreclosure on the family home as warranting an injunction against sale, injunctions (or at least injunction applications) may become common as an antidote to mortgagees exercising their rights under ‘family home’ mortgages. Taking into account the law as presently stated, I do not believe it appropriate for the Court to make a determination inconsistent with it.
5.5 In Air Pacific Limited v. Airports Fiji Limited (2003) the interim injunction was continued by reference to the balance of convenience, the Court observing that there was evidence that ‘some form of occupancy’ had been granted by Airports Limited with respect of premises 19, terms appearing to be ‘until about March 2004’:
If the premises are leased to someone other than [Air Pacific] then it would seem that it would become impossible for [Air Pacific] to ultimately at trial obtain that which it seeks i.e. the right to occupy premises 19 and 20 in accordance with the terms of the alleged agreement between [Air Pacific and Airports Limited].
To enable there to be some ultimate purpose to the litigation having found that there is indeed a triable issue, it appears that the balance of convenience must require that the premises be available for [Air Pacific] in the event that [Air Pacific] is successful at the hearing of the substantive matter: at 5
5.6 It may appear wrong that business interests can be elevated over the interests of householders or can appear to have greater persuasiveness in setting priorities for injunctions preserving the status quo in property matters. Nonetheless the authorities are there; they cannot be ignored. Perhaps ultimately the courts taken the view that however much sentimentality etc associated with the family home, it may be replicated – and necessarily must, whether by alternative rental accommodation or in the event that a party is able to repurchase, another home under ownership. Albeit some may staunchly disagree at the notion, unlike the family home, some business interests are not capable of replication, as in the Airports Limited case.
5.7 In the present case, however, the ‘family home’ argument is not the main issue. What is at issue here is the contention by Mr Naigulevu and Mrs Naigulevu that rather than being in debt to the National Bank, the National Bank is in debt to them. Mr Naigulevu and Mrs Naigulevu have undertaken to pay into court as ‘good faith’ representation of their undertaking as to damages the sum of $15,000 within 14 days. On the authorities, however, this would be insufficient to stay foreclosure and sale. As noted in Kim v. Bank of Baroda [1999] FJHC 39 (2 June 1999), the High Court of Australia has held that injunctions ‘should not be granted restraining a mortgagee from exercising powers of sale conferred by a mortgage unless the mortgage debt is paid into court’: at 2, citing Inglis and Anor. v. Commonwealth Trading Bank of Australia 1972) 126 CLR 161 Observing, in Bank of Baroda, the inability of the Plaintiff to pay into court the amount of the judgment debt as opposed to the position of the Bank which was that it could pay damages if the Plaintiff’s action were successful, the Court concluded:
Before granting an interlocutory injunction the court has to be satisfied that there are serious issues to be tried, that if the applicants are ultimately successful damages would [not] be an adequate remedy, and that on the balance of convenience, a grant is justified.
I have considered these principles and for the reasons given in this judgment, the interim injunction granted by this court ... is dissolved. The Plaintiff may proceed with the substantive action [but without the benefit of an injunction restraining foreclosure or sale of the property]: at 3
5.8 In the present case, however, the problem is how to determine the amount Mr Naigulevu and Mrs Naigulevu must pay in to Court to gain them the protection of an injunction against sale and against continued action to progress sale, pending the outcome of their action.
5.9 According to the National Bank’s Affidavit filed 16 January 2008:
Mr Naigulevu’s loan account has been in default since 2003. The current outstanding balance as at 20th June 2007 was $80,160.06: Affidavit para 15 [b][13]
5.10 The authorities say that even if there are monies in dispute as owing under a mortgage, the mortgagee should nonetheless pay the whole amount owing into court to secure injunctive relief.[14]
5.11 Even discounting the amount said by the National Bank to be owed,[15] by the amount of $25,000 which the Plaintiffs state was agreed to be paid by the National Bank in 2006, this leaves the Plaintiffs with $55,000 odd to pay into Court. Here it must be emphasised that the Court recognises that the Plaintiffs’ position is that all the monies said by the National Bank to be owing by them to it are wrongly attributed to them, and that the real position is that the National Bank is in debt to them.
5.12 As earlier noted, the Plaintiff’s have undertaken to pay into Court the sum of $15,000. However, in the end, this Court is bound by the authorities, which appear to me to be overwhelming. This means that the Court has no option but to predicate any grant of the injunctive relief sought upon the payment into Court of amount said by the Defendant to be owing under the mortgage.
5.13 Hence, the Orders made are dictated by the law currently subsisting by reason of the authorities, and bound to be applied by this Court. This means that to sustain the injunction herebelow granted to restrain the selling, etc of the property by the Defendant, the Plaintiffs must pay into Court the sum of $80,000.00 within 28 days of the making of these Orders.
5.14 The Court acknowledges that this is a large sum.
5.15 As further confirmed by the Orders, if the sum of $80,000.00 is paid into Court within the stipulated 28 day period, then the injunction will remain until the final determination of the substantive matter. If that sum is not paid in to Court within that period, the injunction will necessarily be lifted.
6. Final Matter
The National Bank challenged the proceedings on the basis that they had been initiated and were being run in the name of Mr Naigulevu and Mrs Naigulevu, however, there was no authority from Mrs Naigulevu substantiating her participation as a party:
6.1 There is no authority from the 2nd Plaintiff to show that the 1st Plaintiff had authority to depose to the Affidavit on her behalf as well: Written Submissions, 28 January 2008, para 14 (a)
6.2 A number of authorities were cited, including New Zealand Social Credit Political League Inc v. O’Brien [1984] 1 NZLR 84
6.3 In the event, this problem was obviated by the filing of an Affidavit in Reply to the National Bank Affidavit, which amongst other matters annexed a letter signed by Mrs Naigulevu, the 2nd Named Plaintiff and dated 21 January 2008. In that letter, Mrs Naigulevu confirms:
I ... personally authorised my husband, Apenisa Tuikoro Naigulevu to act on my behalf in respect of our case against the National Bank ... in respect of our Affidavit sworn on the 28th December, 2007 and filed in support of our Notice of Motion dated 27th December, 2007.
I have also, authorized my husband to act in my behalf in respect of the preparation and submission of our reply to the statement of defence and the Affidavit submitted by [the] General Manager of the National Bank of Fiji: Annexure AN 20
6.4 That aspect of the matter is therefore at rest.
Orders
_____________________________
Jocelynne A. Scutt
Judge
15 February 2008
[1] Filed also in respect of the substantive action and endorsed by the Second Plaintiff, Philomena Mary Naigulevu (see later).
[2] Two further cases are cited by Davies, LJ – Hanratty v. Lord Butler of Saffron Walden (1071) The Times, 13 May 1973 per Denning, LJ obiter, and Wenlock v. Shimwell (unreported) – see Riches at 938-39.
[3] (1885) 10 App Cas 210, at 221; [1881-1885] All ER Rep 949, at 954.
[4] Supreme Court Practice 1973, vol. 1, p. 301, para 18/19/3A.
[5] As it is put, it is understood at this stage on the material available, from at least 2003 when the Plaintiffs ceased payments under
the mortgage.
[6] See Strouds Legal Dictionary, 5th edn, John S. James, Sweet & Maxwell, London, UK, 1986, pp. 2017, 2362.
[7] I accept that in this case the mortgagors deny Ebenezer Limited received all the monies alleged by the National Bank to have been
advanced to Ebenezer Limited and apparently held against the mortgage; and that those monies which were advanced to Ebenezer Limited
were advanced to the company, not to Mr Naigulevu and Mrs Naigulevu. Here, however, I refer to the principle and address below the
issues as put in the present case vis-à-vis the principle.
[8] The exception, where monies are paid into court, is canvassed below.
[9] Note – this was not a mortgage case but a lease and tenancy case. That feature is not insignificant. Nonetheless, the principles
provide a useful insight into the application of injunctions vis-à-vis property and the considerations that may be taken into
account.
[10] 3 Blackstone’s Commentaries 288.
[11] Semayne’s case [1572] EngR 333; (1603) 5 Co. Rep. 91a, 91b; [1572] EngR 333; 77 ER 194, 195 (KB 1603).
[12] Equitable remedies may sought challenging this ‘full awareness’ through claiming misrepresentation, duress, unconscionable
conduct, etc – see for example Commercial Banking Company v. Amadio [1983] HCA 14; (1983) 151 CLR 447 (12 May 1983). However, this does not detract from the principle here noted in relation to applications for injunctions in mortgage
cases.
[13] See also Annexure ‘AN 18’ to the Affidavit of Mr Naigulevu filed 31 January 2008.
[14] For example, Kaloumaira v. NBF Asset Management Bank [2000] FJHC 8 (17 January 2000); Kim v. Bank of Baroda [1999] FJHC 39 (2 June 1999); Powell v. ANZ Banking Group Ltd [1998} FJHC 160 (20 November 1998).
[15] Which in any event, if indeed owing as National Bank asserts albeit Mr Naigulevu and Mrs Naigulevu dispute, will be more than the
stated sum which was calculated, as indicated, up to June 2007 only.
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