Australia and New Zealand Banking Group Ltd v Comerica Bank [2012] FJHC 1187; HBC43.2012 (29 June 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Action No.: HBC 43 of 2012

BETWEEN

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
a duly constituted Banking Corporation having its registered office in Melbourne, Australia and carrying on business in Suva and having branches throughout Fiji.
PLAINTIFF

AND:

COMERICA BANK
of Michigan, United States of America and/or C/- Jamnadas & Associates, Level 6, FNPF Place, Victoria Parade, Suva.
DEFENDANT

COUNSELS: LATEEF & LATEEF for the Plaintiff
NO APPEARANCE for the Defendant

ORDER

1. The Plaintiff filed this case by way of Ex-parte originating summons on 20th February 2012 seeking the following orders:
   

"That all charges registered by Comerica Bank against Telecom Fiji Limited and Properties Trust (Fiji) Limited in the Companies Registry be struck off on the grounds of the affidavit filed by David Dudley".

Background

2. The Plaintiff is the First Charge holder of all assets of Telecom Fiji Limited and Properties Trust (Fiji) Limited and registered in the Companies registry. (Company search Annexure "A" to the affidavit of the Plaintiff).
   
3. Telecom Fiji Limited and Properties Trust (Fiji) Limited invested monies in the movie "Straight Edge".
   
4. Without the consent of the Plaintiff, the Defendant registered Charges against Telecom Fiji Limited and Properties Trust (Fiji) Limited on Deed of Charge and Security Assignment entered between the Defendant and several other parties including Telecom Fiji Limited and Properties Trust (Fiji) Limited (The said Deed of Charge and Security Assignment dated 3rd day of December 2004 was annexed to the affidavit dated 10th February 2012 marked "B" together with the Charge registered with the Companies Registry pertaining Properties Trust (Fiji) Limited).
   
5. On 19th March 2012, further affidavit was filed annexing the search notes, Charge and Deed of Charge and Security Assignment pertaining to Telecom Fiji Limited.
   
6. It is stated in the affidavit that Jamnadas & Associates Solicitors for the Defendants who lodged the Charge had informed the Plaintiff they don't act for the Defendant presently.
   
7. It is also stated in the affidavit that as a result of the charges registered by the Defendant, Plaintiff is not in a position to accommodate the future borrowing of the companies since the Charge created by the Defendant causing problems for the Plaintiff.
   
8. It was also stated in the affidavit the investment was completed, the investment was redundant, and removing the charges on Telecom Fiji Limited and Properties Trust (Fiji) Limited is not detrimental to the Defendant. It was also stated the Defendant cannot be traced and application was made ex-parte.
   

Findings

9. When this matter came up before me and it was directed that the Plaintiff should adduce evidence from its two customers that the relevant Project was being completed before making an order.
   
10. On 23rd March 2012, the Court granted time until 20th May 2012 for the Plaintiff to file affidavits from Telecom Fiji Limited and Properties Trust (Fiji) Limited, which was not adhered to date by the Plaintiff.
    
11. In the circumstance, I find no merits in the application filed by the applicant to make order to struck-off the Charges registered in the Company Registry. Further, Plaintiff failed to file affidavits as directed by Courts on 23rd March, 2012.
    

Accordingly, I dismiss the application.

Order made on this 29th day of June, 2012.

[C. Kotigalage]
JUDGE