Chand v Dominion Finance Ltd [2011] FJHC 713; Civil Action 235.2011 (7 November 2011)

IN THE HIGH COURT OF FIJI
CENTRAL DIVISION AT SUVA

Civil Action No. 235 of 2011

BETWEEN:

SALESHNI LATA CHAND ( of 23 Olive Road Hampton Park 3976 Melbourne Victoria.
PLAINTIFF

AND:

DOMINION FINANCE LIMITED a limited liability incorporated under the Laws of Fiji and having its registered office in Suva.
1ST DEFENDANT

AND:

THE REGISTRAR OF TITLES Suvavou House, Suva.
2ND DEFENDANT

AND:

THE ATTORNEY GENERAL The Attorney General's Chambers, Suvavou House, Suva.
3RD DEFENDANT

_________________________________________________________________________
Appearances: Ms T.Draunidalo for the plaintiff
Mr P. McDonnell for the 1st defendant
Ms R Sami for the 2nd and 3rd defendants
Date of hearing: 20th September, 2011

JUDGMENT

1. Saleshni Lata Chand was the registered proprietor of the land contained in Certificate of Title No. 20797.She had executed a transfer document in favour of Razmi Devi Pat, in consideration of a sum of $ 700,000.
   

Saleshni Lata Chand and Razmi Devi Pat were signatories to a letter of offer, in terms of which Dominion Finance Limited had agreed to provide a loan facility of $ 1,180,000 upon mortgage of the property to cover the purchase price and construction costs.
The dispute has arisen since Saleshni Lata Chand has received only a sum of $ 250,000 of the total purchase price . The primary facts are undisputed.

The property was mortgaged by Razmi Devi Pat to Dominion Finance Limited in consideration of a sum of $ 1,070,000.00.Saleshni Lata Chand alleges that Razmi Devi Pat was not present in Fiji on the date the mortgage was executed viz, 18 December,2008. There was no evidence before court to support this allegation. Dominion Finance Limited, in its statement of defence, states it has no knowledge of this matter .

Saleshni Lata Chand has sought a declaration that the mortgage is null and void and that a mortgage for $ 450,000 be registered in her favour.

In the interim, she has sought orders restraining the Registrar of Titles from registering any new transfer on the title to the land, since Dominion Finance Limited has taken steps to sell the property.

2. The objections of counsel for Dominion Finance Limited at the hearing were threefold.
   

Firstly, it was contended the plaintiff's claim was extinguished upon the property passing to Razmi Devi Pat .This argument is untenable, since the property has not passed. The transfer was made " in consideration of the sum of $ 700,000 to be hereinafter paid by Razmi Devi Pat" as provided in the transfer document.

The second and principal contention of counsel was that a sum of $ 250,000 was paid upon the first stage of the drawdown of $ 700k to the vendor occurring, viz " on completion of documentation/or receipt of Solicitor's Interim Certificate", as provided in the letter of offer. The affidavit of the General Manager of Dominion Finance Limited provides the other two terms of the drawdown, which have been given the epithet "milestones", were not met by the vendor, viz;

$250k on completion of the building & passed by Suva City Council Engineers

$ 200 k once building is occupied by tenants

The third argument advanced was that in the event Saleshni Lata Chand was successful in the substantive action, her remedy would be in damages.
Neither Counsel drew the attention of court to the "purpose of the facility" and its two components spelt out in the tripartite letter of offer as follows:

"For purchase of CT No.20797 :	$ 700,000
Construction/completion works:	$ 480,000
	$ 1,180,000 "

The General Manager of Dominion Finance Limited, in his affidavit states that Razmi Devi Pat defaulted in the mortgage repayments.

The threshold requirement that an applicant must satisfy for the grant of an interlocutory injunction is that there must be "a serious question to be tried" -Lord Diplock in American Cyanamid Co v. Ethicon Co Ltd [1975] 1 All E.R.504.

The proprietary interest of Saleshni Lata Chand has not effectively passed to the purchaser. She has admittedly been paid $ 250,000 of the purchase price of $ 700,000 in terms of the drawdown. At this stage, I cannot but express my incomprehension over the terms of the drawdown.

In my judgment, there is a serious question to be tried.

Once the threshold of the test of serious question is reached, the "governing principle" according to Lord Diplock in American Cyanamid Co v. Ethicon Co Ltd(supra), is the balance of convenience, which encompasses many remaining factors that affect a court's discretion. A significant factor in assessing the balance of convenience is the adequacy of damages.

It was asserted that since Dominion Finance Limited was a significant financial institution, it could meet an award of damages. It was also submitted that the plaintiff has not given an undertaking in damages. The case of Natural Waters of Viti Ltd v Crystal Clear Mineral Water (Fiji) Limited (Civil Appeal No. ABU 0011 of 2004) was cited as authority.

Lord Diplock in American Cyanamid v. Ethicon Co Ltd (supra), stated;

"If damages in the measure recoverable at common law would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff's claim appeared to be at that stage."

Saleshni Lata Chand's interest in the property ceased upon the sale .The issue to be tried is whether she is entitled to the balance of the purchase price. In my judgment, damages in all the circumstances, would be an adequate remedy.

For the foregoing reasons, the application for interim relief is dismissed. I make no order as to costs.

A.L.B.Brito-Mutunayagam
Judge

07 November, 2011