Australia and New Zealand Banking Group Ltd v Maharaj [1983] FJSC 5; CC 389 of 1983 (2 September 1983)

IN THE SUPREME COURT OF FIJI (WESTERN DIVISION)
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. 389 of 1983

BETWEEN:

AUSTRALIAN AND NEW ZEALAND BANKING GROUP LIMITED
Plaintiff

AND:

OLINE MAYA MAHARAJ d/o Shiu Prasad
Defendant

Mr Tappoo: Counsel for the Plaintiff
Mr N Prasad: Counsel for the Defendant

RULING

In Matrimonial Action No. 50 of 1983 the defendant seeks a divorce from her husband Rajendra Dutt Maharaj, maintenance and a property settlement. In the meantime she sought and obtained an interlocutory injunction restraining her husband and/or his agents or attorneys from selling or in any way disposing of a piece of land known as Lot 1, Section 21 comprised in Crown Lease No 51363 and an order that a caveat No. 175559 lodged and registered by the defendant in respect of the said land should not be withdrawn.

However the plaintiff in this action is the holder of a mortgage over the same property, the mortgage being taken out by the defendant's husband. Default was made by the mortgagee in 1981, as a result of which the plaintiff exercised its right of sale.

The defendant was given notice by the Registrar of Titles of the removal of the caveat she had lodged in respect of the land, and she sought an interlocutory order by this court to restrain the Registrar from removing the caveat. In the meantime the caveat had lapsed and the plaintiff effected a mortgage sale of the property. This was unknown to this Court at the time this Court granted the defendants ex-party application restraining the Registrar from removing the caveat.

The plaintiff has now filed a writ seeking removal of the court order, and of the caveat, and restraining the defendant from interfering with its right to a mortgagor's sale.

The defendant has entered appearance and filed her defence to the writ, but the plaintiff has nevertheless sought an interlocutory injunction to restrain the defendant from interfering with the mortgagor's sale, an order removing the caveat and an order, removing; the injunction granted previously to the defendant. What the plaintiff is seeking in this application is exactly the same as it seeks in the substantive writ. So if the interlocutory injunction and orders were granted it would settle once and for all the substantive action and would pre-exempt that action. It may be that the plaintiff has a good cause of action, and it may even be that in all the circumstances this Court should not have made the order restraining the Registrar from removing the caveat. But that is why the writ was filed and that is what has to be decided in the substantive action. The decision in the action cannot be pre-empted by granting all the remedies asked for now without trial of the issues. There is no question of maintaining the status quo, or even the balance of convenience, arising out of the plaintiff's application.

The plaintiff's application is therefore dismissed with costs to be taxed if not agreed.

G.O.L Dyke
JUDGE

LAUTOKA
Delivered 2/9/83.