On 1st November 1999, the Plaintiff was grant interim injunction ex parte. The application was heard inter partes on 16th March 2000.
The writ of summons filed on 29th October 1999 claims for a declaration that the Defendant had contravened sectionand 55 of the Fair
Trading ding Decree 1992, and injunctions to prevent the sale or advertisement of the property.
The facts of the case, as set out in the affidavit of Patricia Monica Pratap, are that the Plffs, (who are husband and wife) borrowed
$87,500.00 from thom the National Bank of Fiji in May 1992. CT 13022 was the security for the loan. At that time, Monica Pratap was employed by the Bank as a bank officer. In 1996, the National Bank of Fiji Restructuring Act 1996 was passed. The Bank became the “NBF Asset Management Bank.” On 30th August 1996 Monica Pratap accepted voluntary redundancy, and
was paid $23,000. Prior to this date, she was repaying her housing loan at a rate of 4% per annum, which was the special rate given
to bank employees.
In the Bank’s letter to her of 28th August (PP2 to Monica Pratap’s affidavit) the Bank said:
“If you owe money to the Bank, you should arrange to have this paid immediately or make satisfactory arrangements to either settle
the debt or provide for repayment otherwise redundancy payment due to you may be withheld. Please contact the Staff Loans Officer
(Mr Sunil Rohit) for discussion as concessional loan arrangements will continue to be enjoyed until expiry of 6 months from the date
hereof, and should default arise after this period you shall be subject to normal recovery process.”
Mrs Pratap was then employed until 1998. The affidavit does not inform us of her husband’s (the laintiff) employment or of any contribution
of his to the lthe loan account. However the loan account fell into arrears with interest mounting at normal commercial rates. Apart
from one deposit of $10,000.00 in January 1998, the Plaintiffs were unable to keep up with the arrears on the account.
By October 1999 the total amount owing was $125,482.24. The Plaintiffs dispute this amount because they say that the computation of
the balance, and the new interest rate was never communicated to them by the Bank. The Bank now wishes to exercise its powers and
proceed to realise its security.
Mr K. Muaror for the Plaintiffs submitted that the Bank had acted unconscionably, there was a serious question to be tried, and that
damagesmages could not compensate the Plaintiffs for the loss of their home.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Mr W. Clarke opposed the application saying that the Plaintiffs were not under isability (other than an inability to pay) which might
sugg suggest unconscionable conduct by the Bank, and that the Plaintiffs in any event were in no position to compensate the Defendant
in damages, should the Defendant succeed in the substantive action.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Although I have some misgivings about counsel’s submission that a voluntary redcy coupled with inadequate information on interest
rates, ces, creates a disability on the part of the Plaintiffs, which might then render the Defendant’s decision to realise its security
unconscionable for the purpose of the Fair Trading Decree, I am prepared for the purpose of this application to accept that there
is a serious question to be tried.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> However I am not satisfied that the Plaintiffs will be in a position to compensate the Defendant in damages, ifDefendant were to succeed
ieed in this action. Counsel for the Plaintiffs admitted candidly that his clients were in no position to pay the amount claimed
by the Bank into court.
It is a long established rule that:
“The mortgagee will not be restrained from exerciits power of sale because the amount due is in dispute or b or because the mortgagor
has begun a redemption action or because the mortgagor objects to the manner in which the sale is being arranged. He will be restrained
however if the mortgagor pays the amount claimed into court, that is the amount which the mortgagee claims to be due to him.”
(Halsbury 4th Ed. Vol 32 725, Inglis v. Commonwealth Trading Bank of Australia 126 CLR 161).
In this case, it is evident that the Plaintiffs have been attempting to re-finance the loan with no success. They cannot pay the a
of $125,482.00 into court.ourt. The Defendant would be able to compensate the Plaintiffs in damages, if the Plaintiffs did succeed
in this action.
For these reasons I dissolve the injunction granted on 1st Ner 1999. The Plaintiffs are to pay the Defendant’s costs which I set at
$150.00.
>
