Australia and New Zealand Banking Group Ltd v Chand [1992] FJLawRp 22; [1992] 38 FLR 61 (17 March 1992)

[1992] 38 FLR 61

HIGH COURT OF FIJI

Civil Jurisdiction

AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD

v

DEVI CHAND F/N PRATAP CHAND

Byrne J

17 March 1992

Land- Crown (State) Lands - protected lease- whether Directors consent must be obtained before commencing legal proceedings- Crown (State) Lands Act (Cap 130) section 13 (1).

The Plaintiff commenced legal proceedings in respect of a protected lease without beforehand obtaining the Director's consent. The High Court HELD: consent may be obtained at any time before the action is actually determined by the Court.

Cases cited:

Mohammed Rasul v. feet Singh and Hazara Singh (1964) FLR 16
Shanti Lal v. Bombay Trading Ltd (Lautoka CA 119/81)

Interlocutory ruling in the High Court.

R. Chand for the Plaintiff
H.M. Patel for the Defendant

Byrne J:

At the close of the case for the Defendant on the 11th of March counsel for the Plaintiff sought leave to file a letter from the Director of Lands in the present proceedings, pursuant to Section 13(1) of the Crown Lands Act Cap. 132.

So far as relevant this section provides:

"Whenever in any lease under this Act there has been inserted the following clause:

"This lease is a protected lease under the provisions of the Crown Lands Act"

(hereinafter called a protected lease) it shall not be lawful for the lessee thereof to alienate or deal with the land comprised in the lease or any part thereof ....... without the written consent of the Director of Lands, first had and obtained, nor, 'except ........ with the written consent of the Director of Lands, shall any such lease be dealt with any court of law or under the process of any court of ........ The lease concerned here contains such a clause."

The Plaintiffs application is opposed.

The expression "deal with" has been described in Dictionary of Modern Legal Usage at pp. 167-168 as a vague phrasal verb for which there is almost always a better, more specific substitute. E.g. "This commentary will deal with [read discuss] a variety of matters", or "We do not deal with [read discuss] various objections to the plan of merger filed after this appeal was taken." The author continues, "Where, however, deal with is roughly equivalent to handle it is unobjectionable"

The Shorter Oxford Dictionary gives it this latter meaning as does the Australian Macquarie Dictionary (1981) which also gives one of its meanings as "To act with respect to (a person or thing)"

The Section or its previous equivalent, S. 15(l) of the Crown Lands Ordinance, has been considered by the Courts here e.g. in Mohammed Rasul v. Jeet Singh and Hazara Singh (1964) 10 FLR 16, Hammett ACJ. held:

"There is nothing in the express wording of section 15(1) of the Crown Lands Ordinance which makes it necessary to obtain the consent of the Director of Lands before an action concerning a protected lease is initiated. The consent can be obtained at any time before the land is actually 'dealt with' by the court, which is not the case until an order has been made or a judgment of the court delivered."

Likewise in an unreported decision of 8th of May 1981, at Lautoka in Action No. 119 of 1981, Shanti Lal v. Bombay Trading Investment Limited, Dyke J. E remarked at p.2 of the report:

"One argument was that the Plaintiff did not have the consent of the Director of Lands to institute the proceedings, There is no merit in this ground since though the Plaintiff may not have obtained the necessary consent before instituting the proceedings he certainly had it before his application came to be considered."

Mr. Chand for the Plaintiff relies on these two decisions. On the other hand Mr. Patel for the Defendant submits that the application has come too late; that the Plaintiff should have known the Director's consent was necessary before bringing the action and that to grant the Plaintiffs application now would be for the Court to condone a fundamental error which will prejudice the Defendant.

I understand and can sympathise with such a submission but in my judgment I can not accede to it. In my view, I should follow the two decisions I have just mentioned.

It is to be noted that Section 13(1) uses the passive and not the active voice. It says "Nor shall any such lease be dealt with by any court of law". Had the draftsman used the active voice as "Nor shall any court of law deal with any such lease", I should have been inclined to accept Mr. Patel's submission on the ground that in such a context the phrase may be taken to mean "To commence to hear a matter relating to a lease".

But here the passive voice is used, as I have said, which in my view means that I should follow the interpretation given to the Section by Hammett A. CT and Dyke J.

Leave is therefore given to the Plaintiff to tender the Document.

(Application granted.)