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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/APPLICANTS
AND:
NATIONAL BANK OF FIJI t/a
COLONIAL NATIONAL BANK
DEFENDANT/RESPONDENT
Appearances:
Ms M. Chan for the Plaintiffs/Applicants
Mr D. Sharma for the Defendant/Respondent
Dates of Hearing: 4 April 2008, 16 December 2008, 16 January 2009
Date of Judgment: 10 March 2009
JUDGMENT (No. 2)
Injunction granted with conditions: Apenisa Tuikoro Naigulevu (No 1); Orders sealed; Conditions not met; Variation of conditions sought; Whether Court has power to vary conditions; Whether fresh application for injunction, not variation of existing Orders; Whether fresh application filed prior to expiration of time limit in original Orders; Whether ‘new’ or ‘different’ circumstances must found fresh application; Circumstances under which variation can be granted; Circumstances under which Court can ‘change’ original Orders; What constitutes ‘new’ or ‘different’ conditions; ‘Exceptional circumstances’; Power/duty of Court to facilitate hearing of substantive action; Power/duty of Court to ensure justice to parties through expedition of substantive action; Interim measure to facilitate expeditious hearing of substantive action
Anare Robinson v. Joseph Shackley and Lautoka City Council (HBC No. 002/90L, 18 March 1996 (Supplementary Judgment))
Apenisa Tuikoro Naigulevu and Philomena Mary Naigulevu v. National Bank of Fiji t/a Colonial National Bank (No. 1) (Civil Action No. 598 of 2007, 15 February 2008)
Ba Provincial Holdings Company Ltd v. Ba Provincial Council [2006] FJHC 71; HBC237.2006 (8 September 2006),
Bahadur Ali, Kamru Dean, Safira Ali & Valley Artesian Waters (Fiji) Limited v. Credit Corporation (Fii) Limited, Nalin Patel,
Director of Lands, Attorney=-General & Western Builders Limited (CBV001/08; ABU0084/07, 27 February 2008)
Bastow v. Bagley & Co Ltd [1961] 1 WLR 1494
In re Barrell Enterprises [1973] 1 WLR 19
Fitch v. Rochfort [1849] EngR 510; (1849) 18 LJ Ch 458
Frederick William Edward Markham v. Vanuca Island Resort Limited (CivJuris Action No. HBC153/97L, 11 August 2004)
In re Harrison’s Share Under a Settlement [1955] 1 Ch 260
Harrison v. Harrison, Williams v. Richardson and Ropner v. Ropner [1955] 1 Ch 260
Metwally v. University of Wollongong [1985] HCA 28; (1985) 60 ALR 68; (1985) 59 ALJR 481 (17 April 1985)
Millensted v. Grosvenor House (Park Lane) Ltd [1937] 1 KB 717
Moons Motors Ltd v. Kiuan Wou [1952] 2 Lloyd’s Rep 80
Naigulevu v. National Bank of Fiji (No 1) [2008] FJHC 141; Civil Action 598.2007 (15 February 2008)
Pittalis & Ors v. Sherefettin [1986] QB 868
Purcell v. FC Trigell Ltd (t/a Southern Window and General Cleaning Co) & Anor ['970] 3 All ER 671
State Rail Authority of New South Wales v. Codelfa Construction Pty Ltd [1982] HCA 51; (1982) 150 CLR 29
Thomas A. Edison Ltd v. Bullock [1912] HCA 72; (1912) 15 CLR 679 (31 October 1912)
Vivrass Development Ltd v. Fiji National Provident Fund Board [2002] FJHC 248; HBC0277r.2001s (20 June 2002)
1. Introduction
On 31 January 2008 this Court heard an application for an injunction to restrain the Defendant/Respondent (‘the National Bank’) from further advertising the land the subject of dispute for mortgage sale (‘the land’), and/or calling for tenders in respect of the land, until determination of the Plaintiffs/Applicants’ substantive action. The Defendant/Respondent’s strike out application was heard simultaneously.
1.1 On 15 February 2008, in Apenisa Tuikoro Naigulevu and Philomena Mary Naigulevu v. National Bank of Fiji t/a Colonial National Bank (No 1) (Civil Action No. 598 of 2007, 15 February 2008),[1] judgment was delivered and the following Orders made:
Orders
1.2 The Orders were sealed on 25 February 2008.
1.3 On 14 March 2008 the Plaintiffs/Applicants (Mrs Naigulevu and Mr Naigulevu) filed a ‘Summons to Vary Orders for Payment into Court and for Leave to Amend Pleadings’, seeking the following Orders:
1.4 Subsequently a fresh Summons was filed – on 2 April 2009, Mrs Naigulevu and Mr Naigulevu seeking Orders:
3
(a) That Order 3 ... of 15 February 2008 requiring the Plaintiffs to pay $80,000 into court be varied to dispense with payment into Court.
(b) Alternatively, that the Order be varied to allow payment of $40,000 by way of a Bank guarantee in favour of the Defendant within 28 days;
(c) Alternatively, that the time for payment of the amount paid into Court be extended to a further 28 days.
4 The Plaintiffs be granted leave to amend their Statement of Claim as annexed.
5 Costs of this application be in the cause.
1.5 An Affidavit in support of the first Summons and annexing an Amended Statement of Claim was filed on 14 March 2008. Subsequently a further Amended Statement of Claim was filed – on 21 January 2009.
2. Principle Issues in this Application
Various matters are canvassed in the Summons (es) and were the subject of submissions. However, the principle issues raised by this application and from the submissions made by the parties are:
The Plaintiffs pay into Court the sum of $80,000 within 28 days
means that Mrs Naigulevu and Mr Naigulevu are precluded from seeking any extension of time for payment into Court and that any extension of time should have been sought prior to the expiration of the 28 days.
3. Substantive Action & Dispute
The substantive dispute is whether or not Mrs Naigulevu and Mr Naigulevu are indebted to the National Bank under a mortgage over the land, or have paid all monies properly due by them in respect of that mortgage and (as they assert) more than the monies due. That is, Mrs Naigulevu and Mr Naigulevu say that the National Bank is indebted to them, rather than they being indebted to it.
3.1 The dispute involves Mrs Naigulevu and Mr Naigulevu, a company Ebenezer Publishing House Ltd (Ebenezer Ltd), and the National Bank. Mrs Naigulevu and Mr Naigulevu say that the mortgage wrongly incorporates monies said by the National Bank to be owed by Ebenezer Ltd under the mortgage, whilst the National Bank says it is entitled to foreclose on the mortgage and take steps to sell the land.
3.2 The judgment of 15 February 2008, namely Apenisa Tuikoro Naigulevu and Philomena Mary Naigulevu v. National Bank of Fiji t/a Colonial National Bank (No. 1) (Civil Action No. 598 of 2007, 15 February 2008)[2] held, amongst other matters, that taken together the matters put forward by Mrs Naigulevu and Mr Naigulevu could disclose an ‘arguable case’ or a ‘serious issue to be tried’: American Cyanamid v. Theicon Ltd [1975] UKHL 1; [1975] AC 396
4. Authorities re Variation of Orders
Courts have dealt variously with the question whether there can be a variation of Orders once delivered. The following authorities have been considered here.
A. Frederick William Edward Markham v. Vanuca Island Resort Limited (CivJuris Action No. HBC153/97L, 11 August 2004)
There the Court observed that since delivering judgment, a mathematical miscalculation in the amount of judgment awarded to the Plaintiff had come to attention, meaning that the awarded sum of $AUS 364,024.00 ought properly to have been $AUS 441,291.00. The reasons were that the evidence had been calculated in Australian Dollars and it was in Australia Dollars that the Court had calculated also. Having arrived at an amount of $AUS 355.660.00, the Court then treated that amount as Fiji Dollars, adding an amount for pain and suffering and interest of $FJ 89,250.00. This meant that the sum initially awarded comprised Fiji Dollars and Australian Dollars, albeit the whole was treated as if it were Fiji Dollars. It was, therefore, necessary for the Court to return to the monetary sums and recalculate so that all were expressed in Australian Dollars. In this way, the final (recalculated) sum of $AUS 441,391.00 was arrived at.
The Court found authority in Harrison v. Harrison, Williams v. Richardson and Ropner v. Ropner [1955] 1 Ch 260 and Anare Robinson v. Joseph Shackley and Lautoka City Council (HBC No. 002/90L, 18 March 1996 (Supplementary Judgment)), saying:
... an order pronounced by a judge, whether in open Court or in Chambers, can always be withdrawn, altered, or modified by him, either on his own initiative or on the application of a party, until such time as the order has been drawn up, passed and entered: at 2
No application here: There is nothing remarkable in this. However, there is no application of the principle here, for:
B. Pittalis & Ors v. Sherefettin [1986] QB 868
A rent review clause existed in a lease the subject of litigation. Section 27 of the Arbitration Act 1950 (UK) provided that a court could extend a time limit in a lease for an election by the tenant that the rent be determined by an independent surveyor. In an oral judgment, the trial judge decided not to exercise discretion conferred under that section. The Court gave judgment for the landlords for arrears of rent and possession if the judgment sum were not paid within three months of the date of judgment. Upon the following day, the Court wrote to the parties’ solicitors saying that the judgment had not been entered and the judge proposed to grant the section 27 application, fixing a further hearing date for argument from the parties as to the Court’s proposed course of action. Following submissions, the judge granted the application, exercising discretion on the ground that the tenant would suffer great hardship if the application were refused and that the increased rent was ‘manifestly grossly inflated’.
On appeal, it was said ‘clear authority’ founds the proposition that a judgment not passed and entered can be recalled: In re Harrison’s Share Under a Settlement [1955] Ch 260; Bastow v. Bagley & Co Ltd [1961] 1 WLR 1494; Moons Motors Ltd v. Kiuan Wou [1952] 2 Lloyd’s Rep 80 This is notwithstanding the principle set out in In re Barrell Enterprises [1973] 1 WLR 19 where the English Court of Appeal said:
When oral judgments have been given, either in a court of first instance or on appeal, the successful party ought save in the most exceptional circumstances to be able to assume that the judgment is a valid and effective one: at 23
In re Barrell Enterprises was distinguished in that it involved an attempt in May 1972 to set aside a committal order made January 1971. In Pittalis & Ors the judge ‘recalled the order the day after he made it’ and ‘it was ‘not suggested that the landlords in any way, in proper reliance upon the order, acted to their detriment’:
We are dealing with a case where the judge, practically as soon as he gave the judgment, decided that he was wrong. As a matter of the sensible administration of justice and fairness between parties, it seems to me proper in the circumstances that the judge should be at liberty to recall his order. The position can properly be called exceptional: at 19
No application here: Again, there is no application of the principle espoused in Pittalis & Ors to the present case. There was no ‘change of heart’ by the Court as to the judgment and Orders of 15 February 2008 and no determination ‘practically as soon as judgment was given’ of any ‘wrong’ to be corrected by recalling the parties for a supplementary hearing.
C. Millensted v. Grosvenor House (Park Lane) Ltd [1937] 1 KB 717
Judgment was given for £50.0.0 plus costs. The following day the judge said he thought £50.0.0 was excessive, reducing it to £35.0.0. The English Court of Appeal accepted that a judgment can be recalled at any time until it has been drawn up, upholding the decision of the trial judge to reduce damagers to £35.0.0
No application here: Once more, the principle set down in Millensted does not apply in the present circumstances, where judgment was entered and Orders sealed, and the request for variation is made by a party: here it is not the case of the court’s initiating a variation or proposed variation, or recalling parties for the purpose of hearing argument, etc on such matter.
D. State Rail Authority of NSW v. Codelfa Construction Pty Ltd [1982] HCA 51; (1982) 150 CLR 29 (15 September 1982)
There was a dispute as to certain Orders remitting an award to an Arbitrator to determine whether a contract between the State Rail Authority and Codelfa Construction Pty Ltd to build the Eastern Suburbs Railway had been frustrated and various other matters should be set aside as, generally, being made:
(a) in breach of the audi alterem partem rule of natural justice;
(b) being made by the Court of its own motion; and
(c) being contrary to binding declarations of right made earlier by the NSW Supreme Court.
The Australian High Court said:
Judgment – Mason & Wilson, JJ
Counsel for the [State Rail] Authority referred the Court to many cases to establish the jurisdiction of the Court to entertain the present application. We have no doubt that such a jurisdiction exists: Rajunder Narain Rae v. Bijai Govind Sing (1839) II MooInd App 181 [1839] EngR 1215; (18 ER 269). See also Vienkata Narasimha Appa Row v. Court of Wards [1886] UKLawRpAC 40; (1886) 11 App Cas 660; In re Harrison’s Share Under a Settlement (1955) Ch 260. Nevertheless, it is a power to be exercised with great caution. There may be little difficulty in a case where the orders have not been perfected and some mistake or misprision is disclosed. But in other cases it will be a case of weighing what would otherwise be irremediable injustice against the public interest in maintaining the finality of litigation. The circumstances that will justify a rehearing must be quite exceptional. In Rae’s Case, Lord Brougham said, in words which the [State Rail] Authority claims are apposite to the present case (1839) II MooInd App, at p. 220 (18 ER, at p. 284):
It is impossible to doubt that the indulgence extended in such cases is mainly owning to the natural desire prevailing to prevent irremediable injustice being done by a Court of the last resort, whereby some accident, without any blame, the party has not been heard, and an Order has been inadvertently made as if the party had been heard.
In Ventakta’s Case (1886) 11 App Cas, at pp. 663-664, Lord Watson, delivering the opinion of the Judicial Committee of the [English] Privy Council, referred to Lord Brougham’s words in Rae’s Case and continued:
Even before report, whilst the decision of the Board is not yet res judicata great caution has been observed in permitting the rehearing of appeals. In the last case to which we were referred, that of Hebbert v. Purchase [1871] EngR 18; (1871) LR 3 PC 664, where a litigant alleged, before report and approval, that he had been disabled by want of means from appearing and maintaining his case, the Lord Chancellor said: ‘Having carefully weighted the arguments, and considering the great public mischief which would arise on any doubt being thrown on the finality (sic) of the decisions of the Judicial Committee, their Lordships are of opinion that expediency requires that the prayer of the petitions should not be accede to, and that they should be refused.’ There is a salutary maxim which ought to be observed by all Courts of last resort – Interest reipublicae ut sit finish litium. Its strict observance may occasionally entail hardship upon individual litigants, but the mischief arising from that source must be small in comparison with the great mischief which would necessarily result from doubt being thrown upon the finality of the decisions of such a tribunal as this.’ (At p. 39)
...: at para [16], per Mason and Wilson, JJ
Judgment – Brennan, J.
Application is now made by the [State Rail Authority], prior to the passing and entering of the judgment of this Court, seeking rescission of the order remitting the relevant issues to the Arbitrator for deterioration. Although this Court can no longer be constituted as it was constituted when its orders were made, there is, in my opinion, jurisdiction to recall the order remitting the relevant issues if appropriate grounds are shown. That jurisdiction inheres in this Court as a final court of appeal to prevent irremediable injustice being done by a Court of last resort, but the occasions of its exercise must be rare indeed. The principle developed in the [English] Judicial Committee and in the [English] House of Lords was expressed by Sir James Colville in Maharajah Pertab Naraian Singh v. Maharanee Subhao Koer; Ex parte Trilokinath (18/8) LR V IndApp 171, at p. 173 and should be applied in this Court:
The jealously with which this tribunal regards any attempt to question the finality of one of its judgments, particularly after its confirmation by an Order in Council; the very rare instances in which such an order has been allowed to be reopened or varied; and the peculiar grounds upon which, if at all, this can be permitted, are elaborately considered in Lord Brougham’s judgment in the case of Rajunder Narain Rae v. Bija Govind Singh (1839) 1 Moo PC Cas 117 [1836] EngR 1119; (12 ER 757); 11 Moo IndApp, at p. 214 (18 E at p. 282); and in the more recent case of Ex parte Kisto Nauth Roy [1869] EngR 7; (1869) LR 2 PC 274; [1969] EngR 7; 6 Moo PC (NS) 360 (16 ER 762). It results from these authorities that the thing cannot be done unless by some accident, without any blame, and without any default on the part of the party himself, he hasn’t been heard, and an order has been inadvertently made as if he had been heard.
The last sentence in this passage recites Lord Brougham’s statement in Rajunder Narain Rae v. Bijai Govind Sing (1839) II Moo IndApp 181, at p. 220; [1839] EngR 1215; (18 ER 269, at p. 284) as to the grounds upon which the [English] Judicial Committee might extend what his Lordship described not as a right but as an ‘indulgence’ to allow a case to be reheard. The description is appropriate: Venkata Narasimha AppaiRow v. Court of Wards [1886] UKLawRpAC 40; (1886) 11 AppCas 660, at p. 663; In re Transferred Civil Servants (Ireland) Compensation (1929) AC 242, at p. 252 ...
... [I]t appears that each of the links in the majority [judgment]’s chain of reasoning which led to the order remitting the relevant issues to the Arbitrator was forged after argument upon the question concluded except in one instance where there was no argument but a view was formed as to the authority of Heyman (1942) AC 356 ... and that view is not now challenged. These considerations would warrant a refusal of the ‘indulgence’ to permit the reopening of the order if it were not for the existence of the final declaration judgment of [the court below]. The judgment, standing unreversed, declares that the Arbitrator has no jurisdiction to determine the relevant issues, and would deny effect to a determination of those issues by the Arbitrator ...
... To reconsider the questions which led to the making of the order is plainly to be avoided, not because the Court cannot be so reconstituted as it was before, but because those questions were decided by the deliberate judgment of the Court. The present case was not a case of a decision given inadvertently without hearing a party ...: at paras [4] [7] [10], per Brennan, J.
No application here: There was and is no issue in the present matter going to (any breach of) the right to be heard: both parties were heard, presenting their cases by written and oral submissions, prior to the judgment and Orders of 15 February 2008. The Orders were made in consequence of a ‘deliberate judgment of the Court’ and there was no decision ‘given inadvertently without hearing a party’. Further, the judgment of 15 February 2008 was not a judgment of a final court, nor a final judgment of this Court: it was interlocutory only – being an application for injunction (and for ‘striking out’), prior to the hearing of the substantive action. However, the judgment having been entered and the Orders having been sealed prior to the present application being made, the judgment and the Orders stand as ‘final’ subject to appeal (if allowed) or being varied should any other authority be applicable.
E. Metwally v. University of Wollongong [1985] HCA 28; (1985) 60 ALR 68; (1985) 59 ALJR 481 (17 April 1985)
Dr Metwally applied amongst other matters for a variation of an Order made by the Australian High Court on 22 November 1984, by deleting a declaration that the Anti-Discrimination Tribunal of New South Wales had no power or jurisdiction under the Anti-Discrimination Act 1977 (NSW) to hear and determine his claim of race/ethnic discrimination by reason of the existence of the Racial Discrimination Act 1975 (Cth).
Whilst not finding for Dr Metwally in the instant case, the Australian High Court nonetheless said:
It may be assumed, without deciding, that the Court has power to vacate its order of 22 November 1984, not withstanding that it has been perfected. If such power exists, it must be exercised with great caution, after weighing what might otherwise be irremediable injustice against the public interest in maintaining the finality of litigation: see State Rail Authority of New South Wales v. Codelfa Construction Pty Ltd [1982] HCA 51; (1982) 150 CLR 29, at 38 The present is not a case in which an order was made by mistake or as a result of fraud, or a case in which by some accident an order has been made against a party who was not heard. [Dr] Metwally was represented – and competently represented – in the argument before the Court. It is important to examine exactly what was in issue in the case. [Dr] Metwally’s claim was founded on the Anti-Discrimination Act. If that Act had no valid operation at the material times, his case was doomed to failure. It had been held in Viskauskas v. Niland that the Anti-Discrimination Act was inconsistent with the 1975 [Racial Discrimination] Act and therefore invalid. When [Dr] Metwally’s case came before this Court he did not seek to re-open the decision in Viskauskas v. Niland. On the contrary, his argument accepted the correctness of that decision ... [Dr] Metwally’s counsel accepted the proposition that the 1975 Act was valid as the starting point of his argument – expressly in his written submissions, if tacitly in the oral submissions.
It is elementary that a party is bound by the conduct of his case ...: at paras [5] [6] (Emphasis added)
No application here: As was so for Dr Metwally, in the present case both parties were represented in the original application for an injunction and oral and written submissions of considerable assistance to the Court were presented. Does the power referred to by the Australian High Court as enabling the Court to vacate its order ‘notwithstanding ... it has been perfected’ – taking into account potential ‘irremediable injustice against the public interest’ in asserting the finality of litigation extend to the present case? Albeit the Australian High Court did not refer to the additional factor of its being the final court in the hierarchy of Australian courts, it referred to State Rail Authority of New South Wales v. Codelfa Construction Pty Ltd [1982] HCA 51; (1982) 150 CLR 29, where that point was in fact made. It would appear that the Australian High Court is limiting the power to vacate a final order to the court of last resort. That is, no appeal lies from a decision of the Australian High Court. Hence, as said in Metwally and Codelfa there may be a latitude as expressed by that Court, in respect of its own judgments. That is, it appears that where judgment and orders are perfected, this scope is limited to the court of last resort. In such a case for other courts, the route is by way of appeal or leave to appeal if leave is required.
5. Authorities re Fresh Application
The foregoing authorities not applying to the circumstances of the present case, what of the power of the Court to hear a fresh application for an injunction, whether seeking the same orders as an earlier application, or seeking a ‘variation’ of any orders granted in an earlier application?
F. Ba Provincial Holdings Company Ltd v. Ba Provincial Council [2006] FJHC 71; HBC237.2006 (8 September 2006)
In an earlier action the Court heard an application for injunctive relief ex parte, giving judgment declining that relief (before a notice of discontinuance was filed). Her Ladyship Justice Phillips held that this created an estoppel ‘as to new and similar applications for virtually the same relief’, her earlier judgment being ‘based on the pleadings and ... assessment of uncontested facts’: at 3
Counsel for the applicant maintained ‘the injunctive relief sought in these proceedings [is] different’. Phillips, J. held that was not so. Nor was the contention by Counsel that the parties in each action were different. As to the ‘reliefs sought [being] different’, Her Ladyship held that was ‘clearly not the case’, setting out a list of the actions and relief sought through the various Notices of Motion – consisting of some twenty-four (24):
Twelve of the prayers for injunctive relief in the pending inter-parte motion are exactly the same as those I had dealt with in the earlier civil action and dismissed. There are two additional orders sought in this action – prayer [xv] for the return of the keys of the company’s premises and [xvi] for the return of the company seal. These additional orders are mere variations of other orders sought - they add nothing new and are inconsequential.
[Counsel] submitted that the facts relied on in this action are different. These so called new facts stem from media reports of statements attributed to [a particular individual] ... I do not consider the facts relied on by the plaintiffs to be material different to the facts relied on earlier ... I do not consider matters reported in the media to be relevant to my determination of the legal issues in the case. A comparison of the affidavit material filed by the plaintiffs in both cases shows that the facts giving rise to their complaints are substantially the same ...: at paras [22][23], per Phillips, J. (Emphasis in original)
Her Ladyship went on to refuse injunctive relief upon the basis of estoppel (as distinguished from res judicata), by reference to Bernard C. Cairns, Australian Civil Procedure, 4th edn:
... Issue estoppel occurs when a particular matter is taken to have been decided in earlier proceedings. In deciding what issues were decided, the court may consider any material. Pleadings are relevant in the inquiry, but not decisive. Any material that identifies the issues is admissible ...: p. 171
The conclusion was that the court had ‘already ruled on the plaintiffs’ earlier application for injunctive relief, which has been renewed by the filing of essentially the same application in these proceedings. The factual and legal issues involved are the same and have already been adjudicated upon in my earlier judgment: at 8
Application here? Ba Provincial Holdings Company Ltd v. Ba Provincial Council provides a salutary reminder to parties and Counsel as to the limits of (multiple) injunction applications. The facts differ from the present, however, in that there is no multiplicity of actions and applications here: there is one action and this is the second application for an injunction. Her Ladyship’s determination in Ba Provincial Holdings provides good cause for a reminder that parties cannot simply ignore conditions upon which the grant of an injunction is based, then return to court seeking a further or another injunction, or seeking to ‘change’ conditions not complied with. At the same time, for the reasons set out below, I do not consider that the circumstances of the present application bring it within the strictures of Ba Provincial Holdings; there is, in my view, no estoppel in the present case.
G. Pickering v. National Bank of Fiji [1998] FJHC 75; Hbc0252j.97s (22 May 1998)
The second Plaintiff company, Donald Pickering & Sons Enterprises Ltd, was placed under receivership in 1996. In Pickering v. National Bank of Fiji His Lordship Justice Fatiaki heard an application for an injunction being ‘the latest in a series of similar unsuccessful applications mounted by the plaintiffs in related almost identical actions instituted by them against some or all the defendants’ since the 1996 receivership.
In conjunction with the first action, the Plaintiffs sought an order restraining the receiver from continuing with sale by tender of an industrial property belonging to United Engineers. In refusing the injunction, His Lordship Justice Pain said the Court would not ‘interfere with the proper exercise of his powers by a receiver’; the ‘rights of a debenture holder over the secured property takes priority over any rights of others’: HBC 500/96, cited at 2
In a second action, constituted by some identical parties, injunctions were sought, the first to restrain banks from continuing with receivership of Donald Pickering & Sons Enterprises Ltd, the second to restrain a defendant in that and the present action from continuing with sale of Donald Pickering & Sons Enterprises Ltd’s assets. His Lordship Justice Byrne rejected the injunction applications, saying amongst other matters:
... it is only in the most exceptional cases [that] a Receiver [will] be restrained from exercising his powers of sale ...: HBC 447/97, cited at 3
In Pickering v. National Bank of Fiji Fatiaki, J. sought to ‘compare and contrast the various claims [to] ascertain whether the relief(s) claimed might or might not have already been considered in an earlier interlocutory application’. He said it was ‘neither right or proper for a litigant to institute a multiplicity of proceedings against the same defendants based on essentially the same factual circumstances and seeking the same or similar relief ... [T]hat all three (3) actions were filed by the same solicitor albeit at different times and involving slightly different defendants is tantamount ... to an abuse of court process and smacks of harassment’: at 4
The day after tenders closed, the injunction was sought. An interim injunction restraining sale of properties was granted to allow the Defendant to file an answering affidavit, however it was set aside upon the hearing of the application. One of the bases was that the various ‘causes of action’ pleaded ‘look[ed] suspiciously like those pleaded in the plaintiff’s earlier-mentioned actions and were partially addressed in the interlocutory decisions already rendered by both Pain and Byrne, JJ’: at 5
His Lordship went on to say:
It is settled law that the Court will not ordinarily interfere to restrain a mortgagee from exercising its power of sale except in exceptional circumstances and, even then, only upon payment into Court of the amount sworn by the mortgagee to be due and owing under the mortgage.
In this case, I find there are no ‘exceptional circumstances’ raised in either the plaintiff’s claims or in the affidavit evidence to justify the continuation of the injunction, nor has there been any suggestion or offer to pay in the amount claimed to be owed to the defendant bank under the mortgages: at 6
Fatiaki, J. concluded that even if he were wrong in his assessment of the Plaintiff’s claim (which did not deny or dispute it was in default of loan repayments to the Defendant bank), the balance of convenience was best served by allowing the mortgagee sale to ‘take its natural course’: at 9
Application here? The present case differs from Pickering v. National Bank of Fiji as it differed from Ba Provincial Holdings Company Ltd in that here, there is one action alone and neither are nor have there been multiple actions, whereas in both Pickering and Ba Provincial Holdings multiple actions had been instituted by the party seeking the injunction/s. The question in the present case, then, is whether there is anything in the fresh or new application as put by Mrs Naigulevu and Mr Naigulevu which could provide a basis upon which the Court might grant an injunction subject to different or varied conditions. This is addressed below.
H. Vivrass Development Ltd v. Fiji National Provident Fund Board [2002] FJHC 248; HBC0277r.2001s (20 June 2002)
Counsel for Vivrass Development Ltd said that the Notice of Motion inter partes seeking a order that the Fiji National Provident Fund be restrained from proceeding further with a mortgagee sale and/or foreclosure of Vivrass Development Ltd’s properties until 30 June 2002 or further Order was an application ‘for an injunction afresh’. It was the Plaintiffs argument that time ‘be given to them to enable them to obtain the loan’ in prospect from Fiji Development Bank: at 2
His Lordship Justice Pathik said that in ‘considering the issue before the Court one cannot ignore the history of [the] case’:
This is the third time ... the plaintiffs have come before the Court applying for [an] injunction to prevent the defendant exercising its powers of sale under the mortgage in question.
In the first motion the interim injunction was dissolved. A second application was made and Terms of Settlement ... filed; the Plaintiff made default and the defendant went ahead and confirmed the Sale and Purchase Agreement made earlier with the successful tenderer ..., $150,000.00 was accepted as a deposit and the settlement will be by 30 June 2002. The defendant says ... it does not want to lose that sale as there is not another buyer immediately available ...: at 2, per Pathik, J.
Pathik, J. said that he had considered under the circumstances that the Court was functus officio, but Counsel for the Plaintiff ‘was of the view that the Court ought to entertain the application as the plaintiffs stand to lose a lot if [the] injunction [were] refused. In the interests of justice the Court entertained the application ...’: at 2
In the upshot, His Lordship said that the ground stated ‘was ... no reason at all on the facts and circumstances of this case. ... [T]his is a very weak case compared to the one in the first application’. Crucial, too, was the ‘nature and effect of consent orders’, namely that there is ‘no ground for setting aside [a] consent order for a consent order, whether interlocutory or final, must be given full contractual effect and could only be set aside ... on ground which would justify setting aside a contract ...’: at 3, citing Purcell v. FC Trigell Ltd (t/a Southern Window and General Cleaning Co) & Anor [1970] 3 All ER 671, at 675, 677
In these circumstances, said Pathik, J., it would be ‘quite wrong to re-open the matter by along the plaintiffs further time to find a buyer bearing in mind particularly the steps already taken by the defendant once default was made under the Consent Order pursuant to the provisions of the ... Terms of Settlement’. The application was, in light of the authorities, ‘certainly misconceived and ... an abuse of the process of the court’: at 3 This was based upon the existence of the Consent Orders, ‘a contract, the terms of which were precise’: citing Templeman, LJ in Purcell v. FC Trigell Ltd
Application here? In the present case, there were no Consent Orders, so that the principles applicable in that circumstance do not apply here. The question is whether in all the circumstances of the present case it is appropriate for this Court to entertain the application ‘in the interests of justice’. Again, this is addressed below.
I. Thomas A. Edison Ltd v. Bullock [1912] HCA 72; (1912) 15 CLR 679 (31 October 1912)
The Plaintiffs, Thomas A. Edison Ltd, obtained an interlocutory injunction from the Australian High Court (Barton, J.) on 16 September 1912, restraining the Defendant, Bullock, from (amongst other matters) selling or offering for sale Edison phonographs, records and blanks at prices less than those licensed by Thomas A Edison Ltd, without their consent. Bullock sought to dissolve the injunction on the basis that there was non-disclosure to Barton, J. of material facts and that no breach was committed or intended. Isaacs, J. said that no order could have been made had the now-admitted circumstances been stated in the first instance (before Barton, J.), ‘without considering and weighing them, and therefore the order for injunction was improperly obtained ... In the ordinary course of events, therefore, the injunction of 16th September should be dissolved, and with costs’: at 3, per Isaacs, J.
However, the Australian High Court went on to say that this ‘would not prevent the plaintiffs from applying de novo for an injunction upon the merits as they now appear’, citing Fitch v. Rochfort [1849] EngR 510; (1849) 18 LJ Ch 458, at 460, per Lord Cottenham, LC
Ultimately, the Court heard the action in full (with the agreement of the parties), finding for Bullock but without awarding costs. The decision not to award costs was made, upon the basis that Thomas A. Edison Ltd had acted precipitating in taking action, but Bullock had not been as ‘explicit as to conditions of sale as he might have been either in advertisement or ... his replies when his methods of proceeding were challenged’ by Thomas A. Edison Ltd: at 3, per Isaacs, J.
Application here? There is, in the present case, no suggestion of a failure to disclose relevant facts in the first instance and, in any event, the first application was heard inter partes and not ex parte as was the case in Thomas A. Edison Ltd v. Bullock. However, it is noted that an injunction once having been granted upon an interlocutory basis, and then being set aside, did not in the Australian High Court’s view stand in the way of the applicant’s making a fresh application de novo for an injunction upon the merits.
6. Present Application – Variation or Fresh Application?
Taking into account the authorities relating to the setting aside or changing of Orders prior to entry of judgment or sealing of Orders (which are not applicable to the present case) and those relating to a fresh or new application, are Mrs Naigulevu and Mr Naigulevu precluded from making the application now before the Court?
6.1 A distinction needs to be drawn between the position where:
6.2 The National Bank says that the present application is misconceived because no ‘stay’ can be granted vis-à-vis the original injunction and failure of Mrs Naigulevu and Mr Naigulevu to fulfill the conditions within the period stipulated in the 15 February 2008 Orders, because there is nothing to stay – the (conditional) injunction has lapsed. They not having complied with the condition and having allowed the date to pass without seeking an extension, their application has no merit. On the other hand, Mrs Naigulevu and Mr Naigulevu say that the application of March 2008 was filed within time, but due to a hold-up in the Civil Registry, it was not issued prior to the expiration of the 28 days stipulated in the Orders of 15 February 2008.
6.3 In or about December 2008 and as indicated by the Court the parties on 16 December 2008 and 16 January 2009 it became apparent to the Court that the Applicants’ concerns about delay or hold-up in the Civil Registry had substance. The Court found it necessary to request the parties to provide copies of material which both stated they had already filed with the Court. This included the two Summons (March and April 2008) of the Applicants, and the Written Submissions of Counsel for the Applicants and Counsel for the Respondent. As advised to the parties, this is a most unusual circumstance. The Court accepts that there has been some confusion within the system for which the parties can bear no responsibility. The copy of the Summons of March 2008 bears the stamp of the High Court Civil Registry as received on 14 March 2008, thus indicating it was received within time. That it was not issued in a timely manner cannot be laid at the door of Mrs Naigulevu or Mr Naigulevu or their Counsel.
6.4 The Court accepts that the Summons was filed within the 28 day period stipulated by the Orders of 15 February 2008. As Mrs Naigulevu and Mr Naigulevu were seeking, by that Summons, an extension of time, it would have been preferable for the Summons to have been filed well before the expiration of the 28 days, so that the matter could have been listed before the time expired and at least a temporary extension could have been obtained pending an inter partes hearing on the Summons. However, as noted the Court accepts that there was some difficulty faced by the Plaintiffs in the Court’s administrative process and militating against expedition whatever the Plaintiffs’ wish.
6.5 The authorities support the proposition that in certain circumstances at least the terms of an injunction can be varied by the
making of a fresh application or, alternatively, that a fresh application for injunction can be made whether or not a previous application
has been granted or refused. Whilst bearing in mind that a party cannot simply file application after application in identical or
almost identical terms without being ruled as engaging in vexatious or at least unproductive conduct: Ba Provincial Holdings Company Ltd v. Ba Provincial Council [2006] FJHC 71; HBC237.2006 (8 September 2006), the capacity for the Court to consider a fresh application is consistent with authority: Bahadur Ali, Kamru Dean, Safira Ali & Valley Artesian Waters (Fiji) Limited v. Credit Corporation (Fii) Limited, Nalin Patel,
Director of Lands, Attorney-General & Western Builders Limited (CBV001/08; ABU0084/07, 27 February 2008); Thomas A. Edison Ltd v. Bullock [1912] HCA 72; (1912) 15 CLR 679 (31 October 1912); Vivrass Development Ltd v. Fiji National Provident Fund Board [2002] FJHC 248; HBC0277r.2001s (20 June 2002)
.
6.6 As was said in Thomas A. Edison Ltd v. Bullock [1912] HCA 72; (1912) 15 CLR 679 (31 October 1912), that an ex parte injunction was dissolved ‘would not prevent the plaintiffs from applying de novo for an injunction upon the merits as they now appear (per Lord Cottenham LC in Fitch v. Rochfort [1849] EngR 510; (1849) 18 LJ Ch 458, at 460 This was affirmed by the Supreme Court in Bahadur Ali, Kamru Dean, Safira Ali & Valley Artesian Waters (Fiji) Limited v. Credit Corporation (Fii) Limited, Nalin Patel,
Director of Lands, Attorney-General & Western Builders Limited (CBV001/08; ABU0084/07, 27 February 2008), at para [14]
6.7 Here, there is dispute between the parties as to whether new or different conditions need to come into existence before a fresh application for injunction can be made, or whether such new or different conditions in fact exist. An argument for the National Bank is that the reliance by Mrs Naigulevu and Mr Naigulevu upon Affidavits filed in respect of the original application indicate that there are no new or fresh circumstances and, in any event, those Affidavits ought not to be taken into account by the Court in making a determination now. Counsel for Mrs Naigulevu and Mr Naigulevu cite Vivrass Development Ltd v. Fiji National Provident Fund Board [2002] FJHC 248; HBC0277r.2001s (20 June 2002) for the proposition that no new or fresh conditions are necessary.
6.8 As noted, in Vivrass Development Ltd v. Fiji National Provident Fund Board [2002] FJHC 248; HBC0277r.2001s (20 June 2002) the Applicants for an injunction (Vivrass Development Ltd) had come before the Court for the third time applying for an injunction to prevent the Defendant (Fiji National Provident) from exercising its powers of sale under a mortgage. In the first instance, the interim injunction was dissolved. A second application resulted in filing of Terms of Settlement upon which Vivrass Development Ltd defaulted and Fiji National Provident went ahead confirming a sale by tender which was to settle at the end of June 2002 – a month after the application in question was filed. His Lordship Justice Pathik said that the consent order ‘meant [Fiji National Provident] was free to proceed to mortgagee’s sale in case of default of provision of Terms of Settlement’, observing that in such circumstances the Court had considered itself functus officio. Despite this, upon representations by Counsel for Vivrass Development Ltd that the application should be considered as Vivrass Development Ltd ‘stood to lose a lot’ upon refusal of an injunction, the Court did (re)consider ‘in the interests of justice’.
6.9 In the present case, taking into account Vivrass Development Ltd, in the interests of justice – as later expressed – this Court considers it is appropriate to (re)consider the application for an injunction made by the Summons herein.
6.10 The present application is not on all fours with that in Vivrass Development Ltd v. Fiji National Provident Fund Board, however. Here, there have been no consent orders and this is the second application (rather than third or, as in Ba Provincial Holdings Company Ltd v. Ba Provincial Council [2006] FJHC 71; HBC237.2006 (8 September 2006), one of multiple actions and multiple applications (in that case, some 24 applications). There is as yet no sale in train by the National Bank. Rather, it appears that the National Bank is endeavouring to find a buyer. However, it also appears that Mrs Naigulevu and Mr Naigulevu’s remaining in occupation is, apparently, causing some difficulty, at least, in this regard.
6.11 It is arguable that the circumstances here are, taking into account what was said by His Lordship Justice Pathik in Vivrass Development Ltd and His Lordship Justice Fatiaki in Pickering v. National Bank of Fiji [1998] FJHC 75; Hbc0252j.97s (22 May 1998), persuasive of the Court’s granting fresh conditions for the reasons set out below.
6.12 In Vivrass Development Ltd Pathik, J. did contemplate as a basis for reconsideration of an application for an injunction vis-à-vis a mortgage ‘that the plaintiffs stand to lose a lot’ if the injunction were refused – although the application was not successful in that case. As noted, in Pickering v. National Bank of Fiji Fatiaki, J. said
It is settled law that the Court will not ordinarily interfere to restrain a mortgagee from exercising its power of sale except in exceptional circumstances and, even then, only upon payment into Court of the amount sworn by the mortgagee to be due and owing under the mortgage: at 6
6.13 As further noted, His Lordship went on to say that, in the particular case, he found there were no ‘exceptional circumstances’ raised in the Pickerings’ claims or in the Affidavit evidence ‘to justify the continuation of the injunction, nor has there been any suggestion or offer to pay in the amount claimed to be owed to the [National Bank] under the mortgages’: at 6 The mortgage was then discharged with costs.
6.14 In the present case, however, Mrs Naigulevu and Mr Naigulevu have come forward with a proposal to pay $40,000 into Court, or to provide a bank guarantee in that amount. In the earlier application, they said that $15,000 was the total sum they could advance. They now say that a reassessment of their financial position, with their finances reconsidered and their accounts and financial position generally reassessed results in their being able to propose this larger amount. In addition, albeit the National Bank raises issues going to its terms and the procedure by which it is placed before the Court, and Amended Statement of Claim has been produced and filed by the Applicants.
6.15 That they have relied at least in part of the earlier Affidavits does not in my opinion preclude the Court from reconsidering the question of an injunction upon the basis of its being a ‘new’ or ‘fresh’ application. This does not mean that litigants can ignore injunction conditions and ‘rewrite’ or seek to rewrite them simply to comply with their financial circumstances. This is not what is contemplated here and the Court emphatically rejects any such approach.
6.16 The interests of justice in expediting the substantive hearing is a strong factor here, as indicated below. It is this that has prompted the Court to adopt an interim measure in the cause of ensuring that justice can be done as between the parties by the hearing of the substantive dispute.
6.17 That the Court exercises discretion to consider this application afresh or as a new application does not mean that the rights of the National Bank can be overlooked or considered any less pressing. The exceptional circumstances herein subsisting are, amongst others, that the situation between the parties has become bogged down as well as, to a certain extent at least, being subject to what appears to be drift. The original Orders were, as noted, made on 15 February 2008. They were sealed ten (10) days later. A year has passed, and the parties remain at odds with the matters between them still unresolved and the National Bank endeavouring to sell the property whilst Mrs Naigulevu and Mr Naigulevu remain in occupation, without having paid any monies to the National Bank since the Orders of 15 February 2008, nor making any payments, nor paying any monies into Court. This remains so, twelve (12) months down the track. The Court must step in and the Motion presently before the Court provides an opportunity for the Court to make Orders as an interim measure in the interests of advancing the interests of both parties – namely to bring to an end the matters before the Court. This it appears can or will be done only by ensuring that the substantive hearing proceeds without further delay.
7. Conclusion
It appears to the Court that:
7.1 It is understood that Mrs Naigulevu and Mr Naigulevu believe that they do not owe the National Bank any monies, their position being, as noted, that the National Bank owes them monies. However, they are not entitled to operate on the basis that this is a foregone conclusion as appears at least in some regards may have been their position. It is for the Court to decide on the basis of the evidence and having heard submissions from the parties.
7.2 They now having concluded that an onus does lie upon them to show their good faith by, as an alternative sought in the ‘new’ or ‘fresh’ application, making a payment into Court, Mrs Naigulevu and Mr Naigulevu need to affirm that good faith by so doing, and doing so promptly in accordance with the Orders herein.
7.3 This cannot be done, in my view, through a bank guarantee (an alternative to the payment into Court, as in the ‘new’
or ‘fresh’ application).
7.4 It would appear that any bank guarantee would be in respect of the land which is the very subject of the dispute. Albeit upon
the valuation it appears that it is worth well in excess of the $80,000 claimed by the National Bank under the mortgage, matters
cannot be resolved by creating over the land which is the subject of the National Bank’s mortgage a new charge to another financial
institution.
7.5 Further, because the amount to be required to be paid into Court by the Applicants is $40,000 rather than the earlier ordered amount of $80,000, the Applicants are required to pay to the Defendant the monthly payments due under the mortgage, until the substantive action is heard and determined. Any default in such payments means that the conditions of the injunction are breached.
7.6 The consequences following in such a case must be well-known to Mrs Naigulevu and Mr Naigulevu. They need to be mindful of this and of the stipulation as to time which is set out in the Orders below, and by which they are bound.
Orders
Jocelynne A. Scutt
Judge
10 March 2009
[1] Naigulevu v. National Bank of Fiji (No 1) [2008] FJHC 141; Civil Action 598.2007 (15 February 2008).
[2] Naigulevu v. National Bank of Fiji [2008] FJHC 141; Civil Action 598.2007 (15 February 2008).
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