Bank of New Zealand v Ripikoi [1992] FJLawRp 21; [1992] 38 FLR 1 (22 January 1992)

[1992] 38 FLR 1

HIGH COURT OF FIJI

Civil Jurisdiction

BANK OF NEW ZEALAND

v

IAN RIKA RIPIKOI & ANOTHER

Byrne J

22 January 1992

Bill of Sale - motor vehicle - priority of bills - effect of failure to register - Bills of Sale Act (Cap 225) Sections 3, 7, 12,

The Plaintiff sought delivery of two vehicles the subject of bills of sale executed in its favour by the 1st Defendant. The 2nd Defendant which had actual possession of the vehicles relied on a "mortgage" over the vehicles executed in its favour by the 1st Defendant. HELD: the mortgage was unregistered and had to be deemed void; the plaintiff was entitled to possession.

No cases were cited.

S. Parshotam for the Plaintiff
T. Fa for the second Defendant
No appearance by the first Defendant

Action for delivery of chattels in the High Court.

Byrne J:

On the 1st of March 1991 the Plaintiff issued a Writ of Summons indorsed with an Indorsement of Claim, claiming, inter alia, judgment against the First Defendant for $10,295.08 and interest and costs and against the 2nd Defendant, an Order for delivery of two motor vehicles registered Numbers BY585 and AM538.

On the 4th of March 1991, the Plaintiff took out a Summons seeking an Order against the Second Defendant that he forthwith delivers to the Plaintiff the said motor vehicles.

In an Affidavit sworn by Michael Patrick Dale a Bank Executive of the Plaintiff now operating as Australia and New Zealand Banking Group Limited, sworn on 21st February 1991 and filed in this action in support of the Plaintiff's Summons, he deposes that by a Bill of Sale dated the 13th of February 1990 and numbered 90/582, the First Defendant assigned the said vehicles to the Plaintiff.

He further deposes that the Plaintiff made certain banking advances to the First Defendant and that the First Defendant made defaults in his payments, whereby the Plaintiff was then entitled to repossess the vehicles the subject of the Bill of Sale.

He further deposes that the Plaintiff then made numerous attempts to repossess the said vehicles but was hindered in its efforts by the Second Defendant who then had the vehicles in his possession. The Second Defendant does not deny the fact of possession.

The Second Defendant has sworn an Affidavit in Reply on the 2nd of May 1991 in which he states that by a document entitled "Mortgage Agreement" which appears to have been made on the 23rd of January 1990, the First Defendant mortgaged the said vehicles to a company owned by the Second Defendant called Raiwalui Enterprises Co-operation Limited to secure the sum of $30,000.00.

The Second Defendant claims that the vehicles are in his possession pursuant to the said Mortgage Agreement and the vehicles would be forfeited failing repayment of the $30,000.00 on or before the 14th by May 1990.

The matter originally came before me on the 10th of June 1991 when I made a consent order for written submissions to be made by the parties' solicitors, those of the Plaintiff to be filed by the 18th of June 1991 and those of the Second Defendant by the 25th of June 1991. The Plaintiff's submissions were filed on the 14th of June 1991 but no submissions have yet been filed on behalf of the Second Defendant.

On the 17th of September 1991 the Plaintiff issued a further Summons in identical terms to the first of the 4th of March 1991 and on the 27th of September 1991 the matter came again before me. On that date Mr. S. Parshotam appeared for the Plaintiff and Mr. M. Patel appeared on instructions from Mr. T. Fa.

I drew Mr. Patel's attention to the fact that no submissions had been filed for the Defendant and I then ordered that any such submissions be filed by the 4th of October 1991 and that no further extension would be granted. As I have just said, the Defendant has still failed to file any submissions.

The Plaintiff claims that it holds a valid Bill of Sale over the motor vehicles and is therefore entitled to take possession of them because of the First Defendant's default in making payments.

The Second Defendant on the other hand relies on the so-called "Mortgage" and claims that his agreement has priority over the Bill of Sale.

THE FACTS

The Bill of Sale in favour of the Plaintiff has been executed by the First Defendant and has been duly attested, stamped and registered in accordance with the Bills of Sale Act Cap. 225. On behalf of the Plaintiff a further affidavit was sworn on the 16th of May 1991 by one Colin Giles who is Manager of Lending and Customer Services of the Plaintiff in Suva. Mr. Giles exhibits to his affidavit a copy of a letter dated the 10th of October 1990 from the Department of Road Transport to the Plaintiff's solicitor stating that as at the 10th of October 1990 the vehicles were registered and owned by the First Defendant and two others. The Plaintiff claims that it had no knowledge of any other arrangement with respect to the vehicles except the Bill of Sale of the 9th of February 1990.

Under Section 19(8) of the Traffic Act Cap. 176 "the person in whose name a motor vehicle is registered shall, unless the contrary be proved, be deemed to be the owner of such motor vehicle".

The document on which the Second Defendant relies as giving him title to the vehicles is in my judgment an unregistered Bill of Sale and is contrary to the Bills of Sale Act.

Under Section 3 of that Act the term "Bills of Sale" includes among numerous other things assurances of personal chattels except those excluded by the Act; the vehicles in issue here are not excluded and consequently in my view the Mortgage Agreement on which the Second Defendant is relying is void under Section 7 of the Act.

Under Section 7 a Bill of Sale to which the Act applies shall be duly attested and registered within seven days after the making or giving thereof and otherwise shall be deemed fraudulent and void. It is clear in my judgment that the so-called Mortgage Agreement contravenes Section 7.

It appears that the First Defendant has deceived the Second Defendant and obtained a loan from him on the security of a Mortgage document which was not stamped and registered so as to protect the Second Defendant.

Under Section 12 of the Bills of Sale Act where two or more Bills of Sale are given comprising the same chattels, they shall have priority in the order of their registration. It therefore follows in my view that since there is only one registered Bill of Sale in this case, being that given by the First Defendant to the Plaintiff, there must be an order in favour of the Plaintiff in terms of the Summons most recently before me. If he so wishes, the Second Defendant may of course pursue his remedies against the Plaintiff.

There will be orders in terms of the Summons dated the 17th of September 1991 as follows:

(1)That the Second Defendant forthwith delivers to the Plaintiff the Motor Vehicles No. BY585 and AM538 assigned by the First Defendant to the Plaintiff under Bill of Sale No. 90/582.

(2) That the Second Defendant pay the costs of and incidental to this application.

(Application granted.)