Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Robinson v Australia and New Zealand Banking Group Ltd [2005] FJHC 362; HBA0003.2005 (14 October 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

ACTION NO. HBA0003 OF 2005

BETWEEN:

TOM ROBINSON aka THOMAS ROBINSON c/-
Emperor Gold Mine, Vatukoula.
APPELLANT/ORIGINAL DEFENDANT

AND:

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
a duly constituted banking corporation having its registered office in Melbourne Australia and carrying business in Suva and elsewhere.
RESPONDENT/ORIGINAL PLAINTIFF

Solicitors for the Plaintiff: Messrs Sahu Khan & Sahu Khan
(City Agents: Iqbal Khan & Associates)

Solicitors for the Respondent: Lateef & Lateef
(City Agents: Young & Associates)

Date of Hearing: 22 July 2005
Dates of Submissions: 19 August, 9 September & 16 September 2005
Date of Judgment: 14 October 2005

JUDGMENT OF FINNIGAN J

A Bank debtor has appealed against the decision of a Magistrate. The Magistrate in an action commenced by the bank had given judgment for the bank for $11,117.75 as claimed. This had been the balance of the debtor’s loan account after sale of the debtor’s motor car which it had seized under a Bill of Sale.

The appeal is brought on the basis that the bank had sold the car at considerably less than its true value and had not observed the debtor’s rights under the Bill of Sale. As Defendant and as Appellant the debtor claims that the bank should be required to deduct from his outstanding loan balance the true value of the car.

A claim such as that does not often succeed. In the present case however the Appellant in my view has a valid argument.

After the hearing the Magistrate waited for submissions and on 12 October 2004 issued a well-reasoned judgment of 6 pages. I have had the benefit of that and I have read the record of the evidence given by both parties. I have had the benefit of detailed submissions from Counsel for both parties on the appeal with full citation of relevant authorities.

This is not a case where a Magistrate based a decision on hearing and observing the credibility of witnesses. There were points of law to be decided. These concerned the admissibility of the Bank’s oral evidence about the advertisements which if alleged it had placed in its alleged attempt to sell the car by tender and ultimately by auction. I think the Magistrate misdirected himself in relying on Section 4 (4) of the Civil Evidence Act 2002.

Second, I think the Magistrate misdirected himself in finding that the evidence established the Bank had given adequate notice to the Appellant of its intentions.

Third, I think the Magistrate misdirected himself in overruling the Appellant’s objections to the validity of the auction sale.

I deal first with the point whether the Bank gave adequate notice of its intentions. I hold without hesitation that the notice of seizure required under the Bill of Sale was served properly, probably personally, since the Appellant acknowledged by signature that he had received it. (Exhibit P.7). It was dated 31 May 2001 and the Appellant acknowledged receipt on 6 June 2001. Apart from that however the Bank had sent all its letters and demands to the Appellant at the Emperor Gold Mine. On 10 October 2000 the Appellant had been to the Bank and wrote on the Bank’s letterhead a request for reduction in his loan payments on the stated ground that he had lost his job at Emperor Gold Mine. The Bank subsequently wrote its letters to him at the Emperor Gold Mine including its belated acceptance of his request for a reduced payment. He in fact made no payments and there is no evidence he received the letters. In the Magistrates’ Court the Bank relied on its right under the Bill of Sale to correspond with the Appellant at his “last known address” but they knew he was no longer there. It would be incomprehensible that the Bank did not have his residential address, particularly in light of the evidence that it found him readily enough for personal service of the seizure notice and it found the vehicle itself (through the Bailiff) at his residence. The bank’s witness had no record of the interview of the interview with him and only part of the bank’s record. His assertion that the bank knew no other address is difficult to accept.

This point is not major by itself but its effect is cumulative. I turn to the point about the advertisements. There was no evidence at all before the Magistrate on which to conclude that the vehicle had been validly and fairly advertised for sale other then a bland assertion by the Bank’s witness that advertisements had been placed in the Fiji Times. The Bank had failed to disclose any advertisements and the Magistrate construed Section 4 (4) of the Civil Action Act 2002 as enabling him to give the evidence some validity. The evidence however was challenged, the Bank officer had his file in Court, his failure to show copies of the advertisements in a case of this sort raises the doubt whether there were any advertisements. I do not think the Magistrate was justified in admitting the evidence that there were. There was a claim that no tenders had been received. That can be accepted as a fact. Why not? Perhaps no advertisements, or perhaps the advertisements, if placed, may have given the clue. The Bank was hard pressed in my view to establish that it had tried to obtain a fair market value.

I come now to the auction. The Auctioneer wrote to the Bank after it had sold the vehicle (Exhibit P. 8). In the evidence little was said about the qualifications of the Auctioneer, though they were challenged by the Appellant. The letter is written by a person in a firm called “Khans Investigation”. The letter is merely a covering letter which says;

“Dear Sir

Attached please find a Bank cheque for the sum of $26,900.00 (Twenty Six Thousand Nine Hundred Dollars) being sale of the following vehicles;

DI 568 : $7,000.00 (The Appellant’s vehicle)

........ (Three more vehicles)

Thank you.

Yours sincerely”

The complaint of the Appellant about the evidence of the auction is in my view fully justified. Is this a reputable Auctioneer? There is no evidence. Did this Auctioneer advertise the vehicle adequately? Did the Auctioneer in fact obtain the best market price? Did he auction the vehicle? Was the vehicle in the condition in which the Appellant had it at the time it was seized? There are so many questions that all of the many queries raised by Counsel for the Appellant are fully justified.

Findings:

In my opinion the Bank handled the seizure and sale of this vehicle badly. In my view the Magistrate misdirected himself in finding that the Bank had exercised its rights without infringing the rights of the Appellant and “had exercised all reasonable care and had acted in good faith when it sold the car for the price of $7,000.00. Under the circumstances too, there can be no arguments that the car was sold “under valued” “ (P.5 of decision).

What was the value of the car? The Appellant bought it in October 1998 for $18,500.00. Of that amount he borrowed $15,000.00 from the Bank for the purchase. Insurance “in the full insurable value” was an obligation under Clause 6 [c] of the Bill of Sale (Exhibit P. 5). The Bank was agent for an insurance company. Insurance was arranged not for the full purchase price but for the amount of the loan, $15,000.00. Appellant’s Counsel submits that the Bank accepted that to be the full insurable value at that time October 1998. That seems correct. It is now impossible to make any statement of the true market value of the car and the time of the auction, but there is nonetheless some acceptable evidence of its value. The Appellant has claimed throughout that this value was $16,500.00, but he had no evidence for that claim. However in cross examination the Bank’s witness was asked (at P.6) “you are fully aware that vehicle at time of seizure was at least $12,000.00” and he replied “I am aware of that”. In August 2001, after three years, that is not only a reasonable admission. For prompt sale of the vehicle (without knowledge of its condition) that may have been a reasonable price.

The Bank itself acknowledged that it pay the insurance premium, presumably by deduction from the loan account. The Bank claim was only a claim, not evidence.

I have no difficulty in finding that the Bank itself accepted a valuation of at least $12,000.00. In all the circumstances I hold it was not entitled to reduce the loan account by only $7,000.00 because of the factors I have set out above.

Conclusion

Using the powers which I may exercise on appeals such as this pursuant to Rr 18 & 19 of the Magistrates’ Court Rule Cap 14, Subsid; I substitute for the Magistrate’s finding that the Plaintiff was entitled to the whole of the outstanding loan account after deduction of $7,000.00, my finding that it is entitled to the balance after deduction of its admitted minimum value, $12,000.00. There is no dispute about the rest of its claim and I reduce the Magistrate’s award by the difference between $12,000.00 and $7,000.00, namely $5,000.00.

I enter judgment for the Respondent for $6,107.75, together with the Magistrate’s award of $100.00 costs.

In these proceedings the Appellant has only partly succeeded but most of his points on appeal had merit. Costs follow the event and are in the Appellant’s favour. I assess them summarily at $800.00.

Counsel will note that I have not referred to any of the authorities which they cited to me. Suffice to say that the authorities relied on by Counsel for the Appellant were in point and persuasive. In view of my expressed reasoning I do not feel it necessary to record here what those authorities were. The authorities cited by Counsel for the Defendant likewise are a useful compendium of cases on the duties of mortgagees.

D.D. Finnigan
JUDGE

At Lautoka
14 October 2005