Fiji Development Bank v Lal [2011] FJHC 787; HBC64.2010 (5 December 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NUMBER: HBC 64 OF 2010

BETWEEN:

FIJI DEVELOPMENT BANK
PLAINTIFF

AND:

MANHAR LAL
DEFENDANT

Appearances: Mr. M. Nand for the Plaintiff.
Mr. K. Shah for the Defendant.
Date/Place of Judgment: Monday, 05th December, 2011 at Suva.
Judgment of: The Hon. Justice Anjala Wati.

JUDGMENT

Catchwords:
Mortgage action – mortgagee exercises its powers of sale- defendant refused to give vacant possession- mortgagee brought action for vacant possession- defendant pleaded that mortgage contract is frustated as unforeseen events of world recession and coup de'tat in Fiji caused downturn in his business- frustration not made out in law and by facts- application allowed with costs.

Cases/Texts referred to:
Alanbert Pty Ltd. V. Butler Pty Ltd. [2000] NSWSC 261.
Davis Contractors Ltd. V. Fareham UDC [1956] UKHL 3; [1956] AC 696.
Denny Mott & Dickinson Ltd v James B. Fraser & Co Ltd [1944] AC at 275.
Codelfa Constructions Pty Limited v. State Rail Authority of NSW (1982) 149 CLR 337.
National Carriers Ltd v. Panalpina (Northern) Ltd [1980] UKHL 8; [1981] AC 675.
Westpac Banking Corporation v. Bickley [2001] NSWSC 756.

1. On the 30th day of November, 2010, I had granted an order that the defendant and/or his servants or agents, give to the bank, vacant possession of all that property located at Toorak, Suva, comprised in the Certificate of Title No. 5997 being Lot 1 on DP No. 256, together with all improvements thereon. An order was also granted restraining the defendant and/or his servants or agents from interfering with the improvements on the said property in anyway so as to deplete its value.
   
2. I had delivered an ex-tempore ruling because of the urgency of the matter. I now deliver the written reasons for the orders granted then.
   
3. The application was opposed by the defendant.
   
4. The grounds tendered in support of the application were that the parties had entered in a mortgage contract number 556803. The defendant fell in arrears of payment of his debt due to the bank pursuant to which demand notices had been served on him for payment of the entire mortgage debt but he failed to adhere to the said notices which now leaves the bank to exercise its rights under the security document. The bank has exercised its powers of sale and has called for tenders but the sale is impossible without vacant possession as the prospective purchasers require vacant possession. An eviction notice was served on the defendant but he failed to adhere to the said notice as well.
   
5. The defendant opposed the application on the grounds that the defendant had continuously asked the bank to restructure the loan as the country was undergoing recession and his business was affected. The bank was able to sell the property by private sale. He demanded in his opposition that the bank proves that it still has ownership of the property. The defendant further stated that the contract, being the mortgage that it had entered into, was frustrated, by world recession and the events of 5th December, 2006, being the coup de'tat in Fiji, which affected his business. According to the defendant, the said events clearly caused a radical or fundamental alteration in the situation envisaged by the parties and as such he must be released from his obligation to pay the debt under the mortgage contract.
   
6. The plaintiff stated in response that the bank could not restructure the loan as it could not assess the viability of the project since the defendant did not provide his financial status to back up his proposals. The plaintiff stated that the coup de'tat may have been unforeseeable and the contract would only be frustrated upon the sale of the mortgage property. However the defendant did not run into financial crisis because of the downturn in business but because of the management issues. He had written to the bank on 17th April, 2008, 29th April, 2008 and 1st May, 2008 in which he had indicated that his financial problem principally emerged from lack of professional advice and guidance, inexperience, rapid expansion of his business and certain loss resulting from poor business planning.
   
7. From the parties application and response, the issues that this Court needs to try are that:-
   
   • (a) Was the mortgage contract frustrated by world recession and the 2006 coup de'tat in Fiji?
     
   • (b) What was the actual basis for non-compliance with the contract?
     
   • (c) Should the bank have allowed for the variation of a contract by restructuring the loan?
     
8. In Alanbert Pty Ltd. V. Butler Pty Ltd. [2000] NSWSC 261, Justice Hamilton at paragraph 44 stated that the modern doctrine of frustration may be taken to be stated by Lord Radcliffe in Davis Contractors Ltd. V. Fareham UDC [1956] UKHL 3; [1956] AC 696 at 728-729, where Lord Radcliffe states:-
   

"...frustration occurs whenever the law recognizes that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract. Non haec in foedera veni. It was not this that I promised to do.

There is however, no uncertainty as to the materials upon which the court must proceed. 'the data for decision are, on the one hand, the terms and construction of the contract, read in light of the then existing circumstances, and on the other hand the events which have occurred' (Denny Mott & Dickinson Ltd v James B. Fraser & Co Ltd [1944] AC at 275., per Lord Wright). In the nature of things there is often no room for elaborate inquiry. The court must act upon a general impression of what its rule requires. It is for that reason that special importance is necessarily attached to the occurrence f any unexpected event that, as it were, changes the face of things. But even so, it is not hardship or inconvenience or material loss itself which calls the principles of frustration into play. There must be as well such a change in the significance of the obligation that the thing undertaken would, if performed, be a different thing from that contracted for".

Underlining is Mine

9. In Codelfa Constructions Pty Limited v. State Rail Authority of NSW (1982) 149 CLR 337, Justice Mason stated that the defendant has to show that the loan contract became "fundamentally different from that originally contemplated". His honour stated:
   

"...so significantly changes the (not merely the expense or onerousness) of the outstanding contractual rights and/or obligations from what the parties could reasonably have contemplated at the time of its execution that it would be unjust to hold them to the literal sense of its stipulation in the new circumstances". (Per Lord Simon of Glaisdale in National Carriers Ltd v. Panalpina (Northern) Ltd [1980] UKHL 8; [1981] AC 675 at 700 (cited with approval of Aickin J in Codelfa at 378).

10. The defendant's counsel's understanding on the law of frustration is misconceived. The defendant has to show that the loan contract that it entered into became fundamentally different from that originally contemplated for him to successfully rely on the doctrine of frustration. I do not find that the defendant's obligation had changed at all. He was obliged to pay the principal and the interest and in default to surrender the property that was mortgaged. That obligation remained throughout. The downturn in business could only be said to have made the defendant's obligation onerous. The doctrine of frustration therefore does not apply to his contract.
    
11. Even if the doctrine applied, there is no financial evidence provided to state that the defendant had suffered a downturn in business and so his allegation is as good as baseless. Secondly, downturn in business could have been contemplated by a good businessman. A good businessman knows that there is always a possibility of the business not doing well, either it be for worldwide recession or for any other reason, because this is an existing and known fact of business life. Having known that and having entered into a contract, relying on the business income to pay off the debt, the defendant cannot successfully rely on downturn in business, for whatever reason, to circumvent its obligation under the mortgage contract.
    
12. The facts of this case are related to that of the case of Westpac Banking Corporation v. Bickley [2001] NSWSC 756. In this case, a builder had a mortgage with the bank with his house as a security. The builder failed to make payments on the loan, due to downturn in his industry. The bank sought to enforce its charge over the property. The builder claimed that the contract of mortgage was unenforceable because of the introduction of GST which frustrated the contract. Master Harrison in that case held, and I also agree with his verdict that:-
    

"... The introduction of the GST did not make the mortgage contract fundamentally different from that originally contemplated. The contractual obligations for repayment did not alter because of the introduction of GST. Rather the defendant's ability to pay became more onerous. The doctrine of frustration is clear. It does not apply in theses circumstances..."

13. The second issue that I turn to is the actual reason that I find was the cause for non repayment of the debt as contracted under the mortgage.
    
14. The defendant's solicitors wrote to the bank on the 28th day of April, 2008. That letter indicates that the defendant's business, like any other business, "has ran into some difficulties principally arising as a result of management issues."
    
15. On 1st May, 2008, the defendant's solicitor again wrote to the bank in which the material information was stated as to why the business had taken a downturn.
    
16. The letter of 01st May, 2008 read:-
    

"...unfortunately, his (referring to the defendant) financial problems principally emerged from lack of professional advice and guidance, inexperience, rapid expansion of his business and certain loss centres resulting from poor business planning. In short, it would be fair to say that the rapid growth of his business overtook all his resources....Copper Chimney Business: This is currently the principal source of cash flow for Mr. Lal. He is currently operating at Toorak and Sports City. Unfortunately, the Toorak business has suffered as a result of rising competition in Suva, and the lack of parking facilities in the area. Both those businesses are missing out on foot traffic, and particularly lunch time business. Consequently, to ensure engagement of idle resources to capture the lunch time and foot traffic market, a third outlet is in the process of being opened at mid city".

17. The reasons why the business suffered financial crisis is very clear and I make a finding that the downturn in business was not as a result of world recession or the coup de'tat but the defendant's own management problems. This unsustainable defence of frustration is nothing but an afterthought.
    
18. The defendant did request for a restructure of the loan and made proposals how it will pay off the loan but there was no concrete plan and financial back up for the bank to take such a risk to vary the contract. The defendant was not entitled under the contract to have the same varied as of right. Variation would have been possible if both parties agreed. There was no such agreement.
    
19. The defendant has no means to pay his debt and as such the bank was entitled to realize its securities.
    
20. On the above basis the order was granted for vacant possession.
    
21. The only issue that the Court had not decided was that of costs. This matter had no factual or legal basis to be defended in Court. The bank is already in difficulty by not receiving payments as promised and when it tried to realize its security, the defendant objected and delayed the matter. The bank had to incur costs for bringing the action to Court and as such it is entitled to costs of the action which I intend to summarily assess.
    
22. In terms of final orders:-
    
    • (a) There is no legal or factual basis on which the defendant can avoid his obligation under the mortgage and as such the orders of 30th November, 2010 are now substantiated with the reasons contained in this judgment.
      
    • (b) The defendant must pay a sum of $3,000 to the plaintiff as cost for this proceeding.
      

__________________________________

Anjala Wati
Judge

05.12.2011

To:

1. Nands Law, solicitors for the Plaintiff.
2. Shah & Associates, solicitors for the Defendant.
3. File HBC 64 of 2010.