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Chute v Bank of Baroda [2022] FJHC 4; HBC103.2021 (13 January 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


Civil Action No. 103 of 2021


BETWEEN: ROSALIA CHUTE of Lots 2 and 3 Matamakita Subdivision, Isa Lei Road, Lami, Businesswomen.


PLAINTIFF


AND: BANK OF BARODA a body corporate duly incorporate in India,

having its Head Office at Mandvi, Baroda, India and duly registered in Fiji under the Companies Act 2015 and having its registered office at 86-88 Marks Street, Suva, Fiji.


DEFENDANT


Counsel : Plaintiff: Ms. Jackson

: Defendant: Ms. S. Devon and Ms. K. Singh
Hearing Date : 19.11.2021
Date of Judgment : 13.01.2022


JUDGMENT

INTRODUCTION

  1. This action relates to property described in Native Lease No.16044, being Lot 2 & 3 Matamakita Subdivision, Suva and situated at Lot 2 Isa Lei Road, Lami (the Property). Plaintiff resides in the Property as her former matrimonial house. She had obtained judgment from Court of Appeal that awarded $65,000 for her share under Family Law Act 2003 in 2009. The Property was owned by a legal entity Rosewood and it had transferred the Property to another legal entity Organic Earth (Fiji) Ltd, and also mortgaged it to Defendant in 2015. Plaintiff filed this action against Defendant in 2021 for alleged fraud in Mortgage No 817213 (the Mortgage) registered on 3.8.2015 on the Property. Plaintiff had applied to lodge a caveat on the Property prior to transfer of the Property. Plaintiff’s purported caveat was not entered as a ‘memorial’ and it had not complied with mandatory statutory provision contained in Section 24 of Land Transfer Act 1971(LTA). Any ‘memorial’ that had not complied with Section 24 cannot be considered for priority under Section 23 of LTA. It is admitted fact that Registrar of Titles, had not signed purported ‘memorial’ relating to the application of caveat lodged by Plaintiff. Plaintiff was aware of the transfer of the Property as there was an action to evict her instituted in 2016. In terms of Section 23 of LTA ‘notwithstanding any express, implied or constructive notice’ no priority can be attached to a ‘memorial’ that had not been registered in terms of LTA. So the argument of ‘constructive notice’ over purported ‘memorial’ was not a bar for registration of the Mortgage. The statutory provision contained in Section 160 (2) read with Section 164 (1) of Family Law Act 2003 allows the court to make an order for possession or proprietorship to be transferred, but in this instance no such order made. Instead a fixed sum was given to Plaintiff of three properties. The knowledge of Defendant regarding Court of Appeal decision where a fixed sum was awarded was not a reason to refuse Mortgage of the Property, by Defendant. Without prejudice to above, on balance of convenience also favours mortgagee, as a fixed sum was awarded for the Property by Court of Appeal. Plaintiff cannot claim more than the fixed sum awarded for this property, which Defendant is able to pay. Dismissal of eviction action instituted by registered owner, under Section 169 of LTA cannot affect the rights of mortgagee. Plaintiff was aware of the Mortgage and steps taken by mortgagee, of the Property in terms of its register in 2015, but no allegation of fraud was alleged against Defendant. Considering all the facts and law, overall justice favours refusal of this application for injunction.

FACTS

  1. Plaintiff who is in possession of the property seeks injunctive Orders against the Defendant who is the mortgagee in following terms;

‘i. An interim injunction restraining the Defendant, whether by itself or by its agents or servants or otherwise, from proceeding with its application under Order 88 of the High Court Rules 1988 in Civil Action No. 31515 of 2020 filed against the Plaintiff seeking vacant possession of Native Lease No. 16044 being Lot 2 and 3 Matamakita Subdivision, Suva, Rewa, situated at Lot 2 lsa Lei Road, Lami until further order of this Honourable Court or the plaintiffs claim filed herein is determined;


  1. An interim injunction restraining the Defendant, whether by itself or by its agents or servants or otherwise from taking possession, selling, transferring, assigning and/or disposing of Native Lease No. 16044 being Lot 2 and 3 Matamakita Subdivision, Suva, Rewa, situated at Lot 2 lsa Lei Road, Lami under Mortgage No. 817213 until further order of this Honourable Court or the plaintiffs claim filed herein is determined;
  2. An interim injunction restraining the defendant, whether by itself or by its agents or servants or otherwise from interfering with the plaintiffs quiet enjoyment of Native Lease No. 16044 being Lot 2 and 3 Matamakita Subdivision, Suva, Rewa, situated at Lot 2 lsa lei road, Lami, until further order of this Honourable Court or the Plaintiffs claim filed herein is determined.”
  1. At the hearing Plaintiff abandoned the injunctive relief (i) stated in the motion filed.
  2. Cause of action against Defendant was based on alleged fraud as particularized in statement of claim at paragraph 25.
  3. Having obtained a divorce from her husband in 2001, Plaintiff filed an action in terms Family Law Act 2003 for ‘Declaration of property interest’ in terms of Section 160 of Family Law Act 2003.
  4. In the said action for ‘Declaration of property interest’ in appeal Court of Appeal on 17.3.2009 held that Plaintiff’s share of the matrimonial property in following terms,

“a. $12,000 in respect of the car

b. $100,000 in respect of 100,000 shareholding I Mokosoi; and

c. $65,000 in respect of half share in the (former) matrimonial home,” (The Property)


  1. The total amount of $177,000 was to be paid to Plaintiff by her ex-husband. Court of Appeal did not declare alteration of property interest, but awarded a fixed amount instead of the alteration of interest of the properties. Non payment of sum does not alter property rights.
  2. Plaintiff had made an application to lodge a caveat on the Property on 6.4.2014.
  3. This purported caveat was not entered as a ‘memorial’ of the title in terms of LTA, which required, the signature of Registrar of Titles.
  4. Plaintiff and her husband were not the owner of the Property, but a legal entity Rosewood, in which Plaintiff was a minor shareholder and a Director was the sole proprietor of the Property.
  5. The Property was transferred to Organic Earth (Fiji) Ltd and Defendant obtained the Mortgage for the Property.
  6. Before registration of transfer then solicitors for the Defendant had sought removal of notation of purported caveat on the basis that it was not signed by the Registrar of Title.
  7. Defendant also stated that there was no caveat available with the Registrar of Title to consider caveatable right of Plaintiff.
  8. A notation was affixed to purported unsigned caveat as cancelled and the Property was transferred to Organic Earth (Fiji) Ltd and Defendant obtained the Mortgage over the property on 3.8.2015.
  9. Due to default of mortgagor Defendant is exercising its rights as mortgagee to sell the Property and recover debt.
  10. Plaintiff filed writ of summons along with summons for ex parte injunctive orders on 26.3.2021. Summons was converted inter partes.
  11. Plaintiff is claiming fraud against Defendant, ‘willfully blind to equitable rights to the Property and having prior knowledge and notice of the Plaintiff’s equitable interest’ and proceeding to finance the transfer of property from Rosewood Ltd to Organic Earth (Fiji) Ltd and registering the Mortgage.
  12. The particulars of as contained in paragraph 25 of statement of claim in following manner
    1. Agreeing to finance transfer having prior knowledge of equitable interest in the Property.
    2. Lodgment of caveat, with prior knowledge of Plaintiff’s interest.
    1. Defendant’s then solicitors writing to Registrar of Title for removal of caveat, disregarding interest of Plaintiff.
    1. Failure to inquire Plaintiff’s occupation.
    2. Deliberately failing to carry out inquiries, as to Plaintiff’s interest.
    3. Disregarding Plaintiff’s equitable rights to the Property, and willful blindness.
    4. Improperly registering and obtaining a legal interest in the Property.
  13. The Defendant by its defence inter alia claims:
    1. It was a bonafide mortgagee of the property
    2. The property was sold to Organic Earth (Fiji) Limited for value and it was a bonafide purchaser and mortgagor of the property.
    3. The Plaintiff had no proprietary, legal or equitable interest in the said property.
    4. The Plaintiff's interest was only in the sum of $65,000-00 which was the assessed value of her half share in the property.
    5. Plaintiff was guilty of laches and the maxim of "vigilant/bus non dormientibus jura subveniunt" ought to apply to her claims and action.
    6. Plaintiff's action is statute barred pursuant to Section 15 of the Limitation's Act.

ANALYSIS


  1. Plaintiff at the hearing abandoned injunctive relief (1) stated in the Motion dated 26.3.2021. Accordingly it was struck off at the hearing.
  2. The Plaintiff was a minor shareholder and Director of the company known as Rosewood Limited which owned the Property. Plaintiff had not sought and or obtained, alteration of share ownership or declaration as regard to her interest in Rosewood Ltd, in terms of Family Law Act 2003.
  3. Plaintiff had obtained a fixed sum of $117,000 against her ex-husband in terms of her application in terms of Section 160 (1) of Family Law Act 2003.
  4. The order of Family Division of High Court was appealed to Court of Appeal and there was no order in terms of Section 160(2) of Family Law Act 2003.
  5. Section 160(2) of Family Law Act 2003 states.

“(2) Where a court makes a declaration under subsection (1), it may make consequential orders to give effect to the declaration, including orders as to sale or partition and interim or permanent orders as to possession.” (underlining added)


  1. Court of Appeal on 17.3.2009 finally held,

“The Respondent's share of the matrimonial property is determined to be:


  1. $12,000-00 in respect of the car
  2. $100,000-00 in respect of the 100,000 shareholding in Mokosoi
  1. $65,000-00 in respect of a half share in the (former) matrimonial home, the lsa Lei Drive property
  1. The total amount of $177,000-00 is to be paid to the Respondent by the Appellant within 48 days of these Orders.
  2. Cost to the Respondent in the amount of $10,000-00 to be paid within 14 days of these Orders"(emphasis added)
  1. First, Court of Appeal had not recognized, Plaintiff to possession or transfer her share of the Property. So non payment of lump sum of $177,000 by ex-husband cannot be elevated to have an effect of an order in terms of section 160 (2) of Family Law Act 2003.
  2. So there was no order made by Court of Appeal regarding the Property for transfer of her interest, partition, sale or possession as final orders.
  3. Instead, Plaintiff was granted a fixed sum of $65,000 in terms of Family Law Act 2003. So her right to the Property was fixed at $65,000 and this judgment was against her ex-husband, not the registered proprietor of the Property.
  4. So in other words Plaintiff cannot seek more than said fixed amount in terms of the Court of Appeal decision. Plaintiff had obtained Domestic Violence Restraining order (DVRO) against her ex-husband. But this DVRO issued by Magistrate cannot override a decision of Family Law Act 2003 or declare an interest in the Property.
  5. Section 10 of Domestic Violence Act 2009, states

“Courts having jurisdiction under this Act must severally act in aid of and be auxiliary to each other in all matters under this Act.” (emphasis added)


  1. The paramount consideration of DVRO is to provide protection from domestic violence and to provide safe environment in terms of Domestic Violence Act 2009.[1]. This is not a final determination of rights of parties relating to property. So DVRO cannot alter or add any right to the Property which was not granted by Court of Appeal in terms of alteration of Property in terms of section 160 (2) of Family Law Act 2003. Court of Appeal is not a court having jurisdiction in terms of section 8 of Domestic Violence Act 2009.
  2. So non payment of fixed sum, cannot create a claim for half share of the property, in terms of the final orders of Court of Appeal.
  3. Rosewood had been the registered proprietor of the Property since18.8.1994 until it was sold to another legal entity, called 'Organic Earth (Fiji) Limited in 2015.
  4. On 15.1.2015 Rosewood entered into a sale and purchase agreement with Organic Earth (Fiji) Ltd, for the sum of $220, 000.-00.
  5. Defendant Bank upon prospective buyer’s request, granted a loan of $143,000.00 to finance the purchase of the Property, and obtained the Mortgage over the Property in 2015.
  6. On 10.7.2020, the Plaintiff was served with a notice to quit and informed that the Defendant was intending to exercise its right to sell the property pursuant as mortgagee.
  7. Four years before that in 2016 Organic Earth (Fiji) Ltd instituted an action seeking eviction of Plaintiff, so at least five years before this action was filed Plaintiff was aware of the Property being transferred despite her effort to lodge a caveat on the Property.
  8. Willful silence on the part of Plaintiff for nearly five years to allege fraud against Defendant, needs to be considered in the overall justice in granting an injunction against the mortgagee.
  9. On 7.10.2020, the Defendant accepted a tender for mortgagee sale of the property for a sum of $490, 000.-00.
  10. Defendant states that it had provided a loan and obtained the Mortgage over the Property and that the Plaintiff is guilty of laches in bringing the within proceedings seeking injunctive relief. As stated earlier Plaintiff was aware of transfer of the Property in 2016 and as there was an action to evict Plaintiff by registered owner.

Serious Question


  1. In Klissres Farmhouse Bakeries Ltd v Harvesh Bakeries Ltd [1985] NZCA 70; [1985] 2 NZLR 129, Davidson CJ held,

“The principles applicable to the grant of an interim injunction are well known. The Courts in this country have generally followed the decisions in American Cyanamid Co v Ethicon Ltd [19C 396 and Felu>Fellowes v risher [1975] 2 All ER 8he threshoreshold question in each case must be whethe plaintiff has established that there is a serious question to be tried. In order to deto determine that question the Court must consid/b> first, what each each of the parties claims the facts to be; second, what are the issues between the parties on these facts; third, what is the law applicable to those issues, and, fourth, is there a tenable resolution of the issues of fact and law on which the plaintiff may be able to succeed at the trial: see Shotover Gorge Jet Boats Ltd v Marine Enterprises Ltd [19 NZLR 154, 157. In AmeriAmerican Cyanamid Lord Diplock said at pp 406-407:

"... where the legal rights of the parties depend upon facts that are in dispute between them, the evidence available to the court at the hearing of the application for an interlocutory injunction is incomplete. . . .

"It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations." (emphasis added)


  1. Plaintiff’s cause of action against Defendant is based on fraud. Defendant is the mortgagee of the Property.
  2. In terms of injunctive relief (2) and (3) contained in the Motion filed on 26.3.2021 effectively Plaintiff is seeking interim orders to possess the Property based on orders of Court of Appeal decision in terms of Family Law Act 2003 and alleged fraud of Defendant.
  3. Section 42 of LTA states

“42.-(1) No action for possession, or other action for the recovery of any land subject to the provisions of this Act, or any estate or interest therein, shall lie or be sustained against the proprietor in respect of the estate or interest of which he is registered, except in any of the following cases:-


(a) the case of a mortgagee as against a mortgagor in default;


(b) the case of a lessor as against a lessee in default;


(c) the case of a person deprived of any land, estate or interest by fraud, as against the person registered as proprietor of that land, estate or interest through fraud, or as against a person deriving otherwise than as a transferee bona fide for value from or through a person so registered through fraud;


(d) the case of a person deprived of or claiming any estate or interest in land included in any grant or certificate of title of other land by misdescription of that other land, or of its boundaries, as against the proprietor of any estate or interest in the other land, not being a transferee or deriving from or through a transferee thereof bona fide for value;


(e) the case of a proprietor claiming under an instrument of title prior in date of registration, in any case in which two or more grants or two or more instruments of title, may be registered under the provisions of this Act in respect of the same land, estate or interest.”


  1. So registration of an interest by ‘proprietor’ is paramount except in a case of fraud where Plaintiff was ‘deprived of any land, estate or interest’ by the fraud of Defendant.
  2. So Plaintiff cannot institute an action for possession or recovery of the Property, unless Plaintiff was deprived of her interest or estate on the Property, in terms of Section 42 of LTA. Defendant is a registered proprietor in terms of interpretation contained in LTA.[2]
  3. Plaintiff’s application for injunction is based on Defendant’s action in obtaining the Mortgage as pleaded in paragraph 25 of Statement of Claim as to alleged willful blindness to Court of Appeal decision where Plaintiff was granted a fixed sum for her share in the Property.
  4. Plaintiff claims that Defendant had obtained mortgage through fraud and the main contention is unsigned purported memorial relating to application for caveat of Plaintiff.
  5. Section 40 of LTA state;

“40. Except in the case of fraud, no person contracting or dealing with or taking or proposing to take a transfer from the proprietor of any estate or interest in land subject to the provisions of this Act shall be required or in any manner concerned to inquire or ascertain the circumstances in or the consideration for which such proprietor or in any previous proprietor of such estate or interest is or was registered, onto see to the application of the purchase money or any part thereof, or shall be affected by notice, direct or constructive, of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding, and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud”(emphasis added)


  1. So Defendant is not required to inquire or ascertain the circumstances of alleged rights of Plaintiff as her former matrimonial house unless there was a fraud on the part of Defendant.
  2. Plaintiff in this action claiming fraud on the basis that Defendant’s prior knowledge about the actual occupation of the property in paragraph 25 (a) (b), (d) (e) and (f) of particulars of fraud contained in statement of claim.
  3. It is admitted fact that Defendant was aware of Court of Appeal decision in terms of Family Law Act 2003. (see Annexed A to supplementary affidavit of 20.4.2021)
  4. In terms of Section 40 of LTA, the prior knowledge of Plaintiff’s occupation is relevant if there is fraud by Defendant. So there should be a fraud by Defendant, so that Defendant becomes a person who ought to inquire the occupation of Plaintiff.
  5. One needs to consider particulars of fraud for this. This inquiry of Plaintiff’s occupation, becomes relevant only in a fraud.
  6. Defendant’s then solicitors action to cancel notation regarding Plaintiff’s purported caveat, cannot be considered as fraudulent act. It was an act of solicitor in terms of LTA as unsigned notation cannot obtain priority in a ‘memorial’ so that prohibition contained in Section 113 of LTA applied.
  7. Plaintiff had not produced purported application and or purported caveat to consider her caveatable interest. So, Defendant had sought to remove purported notation on title.
  8. Defendant in the affidavit in opposition had also stated that no application of purported caveat, was available with Registrar of Titles in 2015 before execution of the Mortgage.
  9. Section 23 of LTA also states that prior notice is not material in order to obtain priority of registration. Section 23 of LTA states;

“23. Except as otherwise provided in this Act, every instrument presented for registration shall, unless it is a Crown grant, be attested by one witness, and shall be registered in the order of time in which the same is presented for that purpose, and instruments registered in respect of or affecting the, same estate or interest shall, notwithstanding any express, implied or constructive notice, be entitled to priority according to the date of each registration and not according to the date of each instrument itself, and the Registrar, upon registration thereof, shall enter a memorial of the same in the register and, if such instrument is in duplicate as herein provided, he shall deliver the duplicate to the person entitled thereto, and as soon as it has been registered, every instrument shall, for the purposes of this Act, be deemed to be embodied in the register as part and parcel thereof.”


  1. So, on admitted evidence (see Annexed A to affidavit in support) there was no signature of Registrar of Lands to purported caveat of Plaintiff. In the circumstances there was no priority for be purported memorial of caveat which remained unsigned. So the prohibition to register contained in Section 113(1) of LTA cannot be acquired by the ‘memorial’.
  2. Plaintiff relied on purported unsigned notation and notice of that to Defendant. It is not disputed, that Defendant was aware of Court of Appeal decision where Plaintiff was granted a fixed sum in lieu of her share to the Property.
  3. Court of Appeal had granted a fixed sum in lieu of Plaintiff’s share in three properties. So Plaintiff’s half share in the Property was quantified.
  4. It is admitted fact that the notation of purported caveat was not signed by Registrar of Title. This was a mandatory requirement in terms of Section 24 of LTA which reads;

“24. Every memorial entered in the register shall state the nature of the instrument to which it relates, the day and hour of the presentation of such instrument for registration, and such other particulars as the Registrar may direct, and shall refer by number or symbol to such instrument, and shall be signed by the Registrar.


  1. So in the light of that purported caveat of Plaintiff, was required to be entered in memorial in terms of Section 24 of LTA in order to obtain priority over the memorial regarding Mortgage.
  2. Defendant’s then solicitors had written to Registrar of Title to obtain a copy of caveat in order to examine caveatable interest of Plaintiff and this was not provided. Plaintiff was unable to produce the same at this hearing.
  3. According to clause paragraph 13 of affidavit in opposition then solicitors for Defendant had sought removal of notation on the title regarding purported caveat of Plaintiff.
  4. So, there was no priority for such an incomplete ‘memorial’ as stated earlier, hence there was no prohibition attached to registration of the Mortgage in terms of section 113 of LTA.
  5. Plaintiff at the hearing and also in the written submissions contended that memorial of a caveat need not be signed in terms of Section 24 of LTA. For that, reliance was placed on High Court decision of NBF Management Bank Ves Taveuni Estate Ltd et al (13.1.2009). There are two clear distinguishable characters in that decision. First in that decision Section 23 of LTA was not considered. Section 23 of LTA read with Section 24 applies to all ‘memorials’ to obtain priority over subsequent registration. If priority is lost it is not effective to gain prohibition in terms of Section 113 of LTA. So a subsequent registration of the Mortgage has no legal prohibition under LTA. These were not discussed in the said judgment. Next issue is, NBF Management (supra) had no competing ‘memorials’ as it was an action for extension of caveat. In contrast the Mortgage was registered on title. In this case the purported ‘memorial’ of Plaintiff, did not obtained the effect of Section 113 of LTA to prohibit the registration of the Mortgage. The provisions of LTA are clear as I have discussed earlier. Apart from that, in NBF Management (supra) there was no issue as to cavetable interest of the caveator and said application for caveats were available to ascertain caveatable interest of the caveator. In contrast Plaintiff was not able to produce even a copy of her application for caveat to consider her caveatable interest stated therein.
  6. So irrespective of then solicitors’ letter requesting removal of incomplete ‘memorial’ relating to purported caveat, the legal position was that the Mortgage was able to be registered an obtain priority over said notation of purported caveat. So cancellation of said notation cannot be considered a fraud in law.
  7. The Defendant was aware of Plaintiff and judgment for a sum of $177,000 including her share in the Property. (See annexed A to supplementary affidavit of Plaintiff filed on 20.4.2021). This is an admitted fact.
  8. So there was nothing more to inquire by Defendant as Court of Appeal decided finally the issue regarding matrimonial property in terms of Family Law Act 2003. So the allegations of fraud relating to ‘willful blindness’ contained in paragraph 25 (a),(b), (d), (e), (f) cannot hold water. There was a final determination in terms of Family Law Act 2003 and said decision explained position regarding the Property, Defendant’s solicitors had considered this before registration of the Mortgage.
  9. The only remaining alleged particulars of fraud contained in paragraph 25 (c) and (g) does not raise a serious question of law regarding alleged fraud as pleaded in the statement of claim, due to invalidity of an unsigned memorial and the loss of priority, as discussed.
  10. Since the facts are not disputed, in my mind there are no serious question of law to be considered as pleaded in paragraph 25 in the statement of claim and supported by affidavit evidence. (See Klissres Farmhouse Bakeries Ltd v Harvesh Bakeries Ltd [1985] NZCA 70; [1985] 2 NZLR 129).
  11. Serious question of law to be tried needs to be related to the injunctive orders sought. I will not go to the extent of stating that the claim of Plaintiff is frivolous or vexatious which are grounds for striking out of the claim. Even a weak case needs time of court. In my mind the allegations of fraud as pleaded and supported by facts are not serious for consideration in this application for injunctive relief against Defendant.(see Klissres Farmhouse Bakeries Ltd v Harvesh Bakeries Ltd (supra).
  12. Even if I am wrong on above, the balance of convenience favours refusal of Plaintiff’s application for injunction against mortgagee, on above grounds too
  13. Plaintiff had obtained a judgment for $65,000 against her ex-husband in relation to the Property. In terms of Court of Appeal decision Plaintiff cannot get more than $65,000.
  14. As alleged fraud of Defendant was after said judgment it cannot be more than $65,000. Her share was already quantified by Court of Appeal and only a fixed sum was awarded in terms of Section 164(1)(a) of Family Law Act 2003, for a lump sum, without disturbing the title. The fact that break down of lump sum was stated does not change the character of the order made to alteration of the interest of the Property, in terms of section 160 (2) of Family Law Act 2003.
  15. In American Cyanamid Co v Ethicon Ltd [11 All ER 504 at p510 p510 Lord Diplock held,

‘So unless the material available to the court at the hearing of the application for an intetory injunction fails to disclose that the plaintiff has anas any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought.

As to that, the governing principle is that the court should first consider whether if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant's continuing to do what was sought to be enjoined between the time of the application and the time of the trial. 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. (emphasis is mine)


  1. In this case Plaintiff was granted $65,000 by Court of Appeal for her half share of the Property. This was not paid by her husband and Plaintiff cannot claim more on the Property. Defendant being a financial institution can pay this amount, if fraud is proved at the hearing.
  2. Defendant cannot deprive Plaintiff more than the entitlement for her share in the Property which was already quantified finally by an order of Court of Appeal.
  3. If the mortgagee sale is prevented or delayed there will be interest accrued in terms of the Mortgage and terms of the loan. So this is a case where balance of convenience favours Defendant in terms of above quoted passage from American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 50p510.
    .
  4. Without prejudice to was stated earlier in this decision, the reasons given in consideration of serious questioestion of law can also be grounds favouring balance of convenience to Defendant. I do not wish to reiterate them here. This goes to relative strength of case to be considered under balance of convenience. (see Klissres Farmhouse Bakeries Ltd v Harvesh Bakeries Ltd [1985] NZCA 70; [1985] 2 NZLR 129).
  5. Overall justice of the case also favours refusal of this injunction based on fraud. Injunctive reliefs are granted exercising general discretion of the court. Plaintiff is alleging fraud against Defendant more than five years after knowledge of the Property transfer.
  6. Court of Appeal judgment was delivered on 17.3.2009. Transfer of the Property was in 2015 and Plaintiff was aware of the transfer in 2016, but filed this action for fraud 2021.
  7. Though there were several litigations there was no evidence of Plaintiff alleging fraud against Defendant relating to the Mortgage of Defendant. In the circumstances application for injunction is refused. Considering circumstances of the case no cost awarded.

CONCLUSION


  1. Plaintiff had waited more than five years to allege fraud of Defendant in this action. Defendant is mortgagee of the Property. There was no serious question regarding registration of mortgage and allegation of frauds as pleaded in statement of claim. Even if I am wrong, balance of convenience favours Defendant. The strength of Plaintiff’s action against mortgagee on affidavit evidence does not favour Plaintiff to obtain the injunctive relief against mortgagee. Defendant had examined Court of Appeal judgment before execution of the Mortgage. When Plaintiff became aware of the transfer of the Property delay in action for fraud was not explained. Defendant was exercising its rights as mortgagee to sell the property. The Property was never owned by Plaintiff or her ex-husband, but a legal entity Rosewood. There was no distribution of shares in Rosewood. So Rosewood had transferred the Property to another legal entity in 2015 and though the Plaintiff was aware of that no allegation of fraud was made against Defendant, till mortgagee sale to allege fraud. There was no order made in favour of Plaintiff in terms of section 160 (2) of Family Law Act 2003. Application for junctive relief contained in orders 2 and 3 of the motion filed on 26.3.2021 is struck off. Considering circumstances of the case no cost awarded

FINAL ORDERS


  1. Application for injunction refused.
  2. Motion seeking injunction filed on 28.3.2021 struck off.
  1. No order as to costs.
  1. Matter to be listed before Master for directions.

Dated at Suva this 13th day of January, 2022.


.....................................

Justice Deepthi Amaratunga

High Court, Suva


[1] See Long Title to Domestic Violence Act 2009 reads “PROTECTION FROM DOMESTIC VIOLENCE, TO CLARIFY THE DUTIES OF THE POLICE IN THAT REGARD, TO INTRODUCE DOMESTIC VIOLENCE RESTRAINING ORDERS AND OTHER MEASURES TO PROMOTE THE SAFETY AND WELLBEING OF VICTIMS OF DOMESTIC VIOLENCE AND TO PROMOTE REHABILITATION OF PERPETRATORS OF DOMESTIC VIOLENCE AND FOR RELATED MATTERS”
[2] See Section 2(1) of LTA where ,"proprietor" means the registered proprietor of land, or of any estate or interest therein
"estate or interest" means any estate or interest in land subject to the provisions of this Act, and includes any mortgage thereon;(emphasis added)

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