Whittaker v National Bank of Fiji Ltd [2010] FJHC 104; HBC155.2009L (7 April 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 155 of 2009L

BETWEEN:

BRETT WHITTAKER and LOUISE WHITTAKER
Plaintiffs

AND:

NATIONAL BANK OF FIJI LTD TRADING AS COLONIAL NATIONAL BANK
Defendant

INTERLOCUTORY JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr P A Lowing for the Plaintiffs
Mr J Apted for the Defendant

Solicitors: Lowing Nandan & Associates for the Plaintiffs
Munro Leys for the Defendant

Date of Hearing: 30 March 2010
Date of Judgment: 7 April 2010

INTRODUCTION

[1] On 27 August 2009, on the Plaintiffs’ ex-parte application, I granted orders restraining the Defendant Bank from taking any further steps in exercising its power of sale as mortgagee against the Plaintiffs’ properties. My reasons were published on 31 August 2010 and reported in Whittaker v National Bank of Fiji Ltd [2009] FJHC 180; HBC155.2009L (31 August 2009). I then adjourned the application for hearing inter-parte.

[2] After hearing Counsel for both parties on 2 and 3 December 2009, I delivered a Judgment on 9 December 2009 in which I ordered the Plaintiffs to pay the sum of $400,000 into Court by 1 March 2010 as a condition for continuing the stay which I granted on 27 August 2009. That Judgment is now reported in Whittaker v National Bank of Fiji Ltd [2009] FJHC 275; HBC155.2009L (9 December 2009). The terms of the Order (the "9 December 2009 Orders") were as follows:

1. The interim injunctions granted on 27 August 2009 shall continue until 4.00pm on 1st March 2010.

2. If the Plaintiffs do not pay into Court the sum of $400,000 by 4.00pm on 1st March 2010 the said injunctions shall forthwith lift and be discharged. If the moneys are paid as ordered then the injunctions shall continue until final determination of the action or further order of this Court.

3. The Plaintiffs shall pay the Defendant’s costs of $6,000 within 21 days.

[3] Instead of paying the $400,000 sum as ordered the Plaintiffs brought two applications. This Judgment is in respect of those applications.

THE PLAINTIFFS’ APPLICATIONS

[4] The first application was for discharge of the 9 December 2009 Orders or, alternatively, for variation of those orders to the extent that payment of the $400,000 was to be extended to 2 August 2010 (the "First Application"). That application was filed on 25 February 2010 to be called on 2 March 2010.

[5] The application was called before my brother Judge Mr Justice Fernando on 2 March 2010 who rightly refused to discharge my earlier orders and on the Bank’s undertaking not to proceed with mortgagee sale, adjourned the matter to 23 March 2010 to be called before me.

[6] The Plaintiff then filed on 17 March 2010 a second application for interim injunctions and variation of the 9 December 2009 Orders, also to be called on 23 March 2010 before me (the "Second Application"). The interim injunctions sought in the Second Application were in the same terms as those in the Plaintiffs’ ex-parte application and the variation sought was the same as in the First Application, namely an extension of the time for payment until 2 August 2010.

[7] The Bank also filed on 21 December 2009 an application for leave to appeal the 9 December 2010 Judgment. That application is pending and may not proceed depending on the outcome of the Plaintiffs’ First and Second Application. This Judgment is only in respect of the Plaintiffs’ two applications.

CONSIDERATION OF THE APPLICATIONS

[8] The Plaintiffs’ applications eventually came to be heard on 30 March 2010. I acknowledge Counsel’s extensive written submissions for which I am grateful and if my Judgment does not reflect their industry it is not because their submissions were unhelpful or irrelevant but it is because of the seriousness with which this Court views of its orders not being followed.

[9] The terms of the 9 December 2009 Orders cannot be any clearer. The sum of $400,000 had to be paid into Court by 4.00 pm on 1 March 2010. Failing to do so meant the Bank was free to proceed with the exercise of its powers as mortgagee.

[10] The Plaintiffs had two choices. If they did not agree with the Judgment then they could apply for leave to appeal and stay of the 9 December 2009 Orders. The Plaintiffs did not choose this option.

[11] If they were unable to pay as ordered then they could apply to this Court but must show a change in their circumstances justifying a variation. They cannot just simply say, as they have done through Mr Whittaker’s affidavits, that they have the ability to pay but simply have not done it for reasons which this Court does not accept as genuine.

[12] I have fully canvassed the law and the facts in this case in my two previous judgments and do not see any reason to differ from the views that I have expressed in them.

[13] I find no good reason to discharge or otherwise vary my Orders of 9 December 2009. The Plaintiffs’ applications are therefore dismissed. The Bank is free to proceed with the exercise of its rights as mortgagee as it pleases. The action is to take its normal course. I have indicated in the past that I can give priority to this case being tried this year and that position has not changed but it is up to the parties and their solicitors to have the pretrial steps completed soon as the available trial dates for the rest of the year are being quickly taken up.

COSTS

[14] I think costs should follow the event and in the higher end of the scale to reflect the extensive written and oral submissions of Counsel for the Defendant which I set at $2,500.

ORDERS

[15] The Orders are therefore as follows:

1. The Plaintiffs applications filed on 25 February 2010 and 17 March 2010 are dismissed.

2. The Plaintiffs shall pay the Defendant’s costs of $2,500 within 28 days.

3. This action shall take its normal course.

Sosefo Inoke
Judge