| Fiji Islands - Kaur v Australia and New Zealand Banking Group No. 1 - Pacific Law Materials |
IN THE COURT OF APPEAL FIJI
ON APPEAL FROM THE HIGH COURT OF FIJI
CIVIL APPEAL NO. ABU0004 of 1999S
(High Court Civil Action No. HBC0089 OF 1994l)
BETWEEN:
:
KAMLESH KAUR
Applicant
AND:
AUSTRALIA AND NEW ZEALAND
BANKING GROUP
Respondent
&n/p>
In Chambers: The Hon. Hon. Justice Ian R. Thompson, Justice of Appeal
Hearing: Wednesday, 3rd February 1999, Suva
Date of Judgment: Thursday, 11 February 1999
Counsel: Mr S. Ram for the Applicant
Mr A. K. Narayan for the Respondent
DECISION IN CHAMBERS
The applicant is seeking leave to appeal out of time against the dismissal by Lyons J. of her action against the respondent. In that
action she had claimed that the respondent should pay her the amount of arrears of rent owed to her by a tenant of premises which
she owned. The respondent, in whose favour the tenant had executed a bill of sale as security for a loan, had seized and sold the
tenant’s property when the tenant had defaulted in repaying the loan. Three days after the seizure of the goods the applicant
attempted to levy distress for arrears of rent but found that the respondent had seized all the distrainable goods. The process of
the sale of the goods was more than the amount of the arrears of rent but less than the amount owed by the tenant to the respondent.
The applicant demanded that the respondent should pay her, from the proceeds of the sale, the amount of the arrears of rent. The
respondent refused and the applicant commenced her action in the High Court.
The parties agreed that the issue in the action was whether the applicant’s right to recover arrears of rent took priority over
the respondent’s right to recover the debt owed to it in respect of the loan. Lyons J. held that neither had priority over the
other, so that the party which acted first was entitled to the fruits of its having done so without obligation to the other party.
Accordingly, he dismissed the applicant’s action.
That occurred on 16 October 1998. On 4 November 1998 the respondent sealed the order. The time for lodging an appeal expired, therefore,
on 16 December 1998. It is not in dispute that before that date the applicant’s solicitors attempted to lodge a petition of
appeal in the registry to this Court but it was rejected because they did not provide a copy of the sealed order so that the officers
of the registry could ascertain that it was being lodged within time. In an affidavit sworn by an employee of the applicant’s
solicitors it is stated that the registry did not inform them of the rejection until after 16 December 1998. The application for
leave to appeal was lodged on 15 January 1998.
The High Court’s vacation extended from 14 December 1997 to 8 January 1998, inclusive. Although the registry of this Court remained
open during that period, except on the public holidays, it is usual for solicitors to reduce the level of their activity during vacations
of the High Court. That does not excuse the failure of the applicant’s solicitors to lodge their application for leave as soon
as they were informed of the rejection of their petition of appeal. But it does considerably mitigate it. Further, the fact that
the attempt to lodge the petition was made in good time is further ground for dealing leniently with the failure. The respondent
is a major bank; for it the amount which was in issue in the action can be of no substantial significance to its business. In any
event it remains in possession of the money. So the only detriment which it will suffer if leave to appeal is given is that the judgment
in its favour may be set aside if the appeal succeeds. Provided, therefore, that there is substance in the appeal, leave to appeal
should, I am satisfied, be granted.
The grounds of the proposed appeal are:
"The learned Trial Judge erred in fact and/or in law in holding that the Bill of Sale in question and the Distress levied by
the Plaintiff had equal priority and that there was a competing priority such that whichever party acted first got priority.
The Learned Judge erred in fact and/or in law in holding that the goods seized were not to be left on premises for a period of five
days in accordance with authorities cited from Halsbury’s Laws of England 3rd Edition Volume 3 page 321 and in holding that the Plaintiff had no right to such a claim."
The question of the priority of the rights of the landlords and holders of bills of sale appears not to have arisen in any Court in
Fiji before this nor is there available to me any report of an action in a court of another common law jurisdiction on the question.
That does not surprise me because I should have thought the answer was obvious. However, the law relating to distress for rent can
be fully ascertained only by having regard to the common law of England and English statutes applied in Fiji by section 22 of the
High Court Act (Cap. 13) and it is possible that the Bills of Sale Act (Cap. 225) is not an exhaustive statement of the law in respect of bills of sale and that it may be necessary to have regard for
the law merchant and English statutes in force on 2 January 1875.
I can see no arguable case on the second ground. The provision in English law referred to is not a provision of the law of Fiji and,
even if it were, would benefit the tenant, not the landlord. However, with some hesitation, I have come to the conclusion that the
question raised in the first ground may well be arguable and accordingly that leave to appeal should be granted. I would expect the
appellant’s solicitors to undertake appropriate research into the law without delay and, if they find that the law does not
provide for a landlord to have priority over other creditors in distraining for arrears of rent, to discontinue this appeal without
proceeding to hearing. The petition of appeal is to be filed and served within 7 days of the date of this decision; if it is not
filed and served within that time, the leave will lapse automatically upon the expiration of that period of seven days. As the need
for this application arose through the appellant’s default, the appellant is to pay the respondent’s costs of this application,
which I fix as $200.
Order: Leave to appeal granted;
petition of appeal to be filed and served within 7 days;
in default the leave is to lapse automatically.
Mr Justice Ian R. Thompson
Justice of Appeal
Solicitors:
Messrs Mishra Prakash & Associates, Ba for the Appellant
Messrs A.K. Narayan and Company, Ba for the Respondent
Aau0004e.99s
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