Housing Authority v Tuituivalu [2011] FJHC 808; HBC36.2010 (19 December 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CASE NUMBER: HBC 36 OF 2010

BETWEEN:

HOUSING AUTHORITY
PLAINTIFF

AND:

INOKE TUITUIVALU
1ST DEFENDANT

AND:

VASITI TUITUIVALU
2ND DEFENDANT

Appearances: Mr. Vesikula for the Plaintiff.
No appearance of the defendants.
Date / Place of Judgment: Monday, 19th December, 2011 at Suva.
Judgment of: The Hon. Justice Anjala Wati.

JUDGMENT

MORTGAGE ACTION – ORDER FOR VACANT POSSESSION- MORTGAGORS DEFAULT IN PAYMENT OF MORTGAGE DEBT.

The Cause

1. The plaintiff filed a mortgage action seeking relief that the first defendant deliver to the plaintiff vacant possession of all that piece or parcel of land situated in the District of Naitasiri in the province of Naitasiri comprised and described in Lease No. 358162 being Lot 12 on Deposited Plan NO. 4699 located at Chadwick Road, Naulu, Nasinu together with all improvements thereon, as charged by the 1st and 2nd defendant to the plaintiff by mortgage no. 358163 dated the 6th day of April, 1994.
   
2. The plaintiff also seeks that the defendants and their servants and agents be restrained from interfering with the improvements on the said property in any way so as to deplete its value.
   

The Grounds

3. The application was made on the basis that the defendants were inconsistent with the loan repayments. The loan account fell in arrears. The total debt due and outstanding as at the date of 31st August, 2009 is in the sum of $41,653.54 and interest accrues on the said amount on daily basis.
   
4. The plaintiff served on the defendants' demand notice calling up for the entire debt to be paid up but the notice was not adhered to. The notice indicated that the defendants had 30 days time to pay the entire debt failing which they were to quit and give vacant possession of the said property.
   
5. The defendants failed to pay the said monies and the plaintiff had no option but to advertise the said property by way of mortgagee.
   
6. The plaintiff has received numerous tender pursuant to the mortgagee sale and it will be required to give vacant possession of the said property.
   
7. On 3rd July, 2008, the plaintiff served notice to quit dated the 2nd day of July, 2008 on the defendants but only the 2nd defendant complied with the said notice.
   

The Analysis

8. The 1st defendant has neglected to perform his obligations under the mortgage which is an 'on demand' facility.
   
9. The arrears of payment entitled the mortgagee to call up for the entire debt due and owing which the plaintiff did. No payments were made.
   
10. The mortgagee is empowered under the mortgage to realize its security by way of mortgagee sale. It must be permitted to do so but for any sale to successfully take place, an order for vacant possession is required and must be given.
    
11. There is always a danger of the improvements on the property being interfered with and so it is proper for some orders to be put in place to prohibit such action.
    
12. The 1st defendant must also pay cost of this proceeding which could have been avoided.
    

Final Orders

13. The 1st defendant must give vacant possession of the property contained in Lease No. 358162 being Lot 12 on DP 4699 together with all improvements thereon.
    
14. The 1st defendant must not interfere with the improvements on the said property.
    
15. The 1st defendant must pay costs in the sum of $550 to the plaintiff.
    

Anjala Wati
Judge

19.12.2011

To:

1. Mr. Vesikula, counsel for the plaintiffs.
2. 1st Defendant.
3. File: HBC 36 of 2010.