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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
Civil Action No. HBC 202 of 2015
IN THE MATTER of Mortgage No. 767192 given by JONE QIO aka JONE QIO MATANISIGA of Lot 75, Kaudamu Place, Kinoya, Nasinu, Unemployed, over the residential property comprised in Housing Authority Sub Lease No. 163532.
BETWEEN : HOME FINANCE COMPANY LIMITED trading as HFC Bank (referred to as HFC) a limited liability company having its registered office at 371 Victoria Parade, Suva, Fiji.
PLAINTIFF
AND : JONE QIO also known as JONE QIO MATANISIGA of Lot 75, Kaudamu Place, Kinoya, Nasinu, Unemployed.
DEFENDANT
Appearances : Nands Law for the Plaintiff
Naco Chambers for the Defendant
Before : Acting Master S.F. Bull
Hearing : 23 May 2016
Judgment : 04 October 2016
JUDGMENT
Order 88
(2) must exhibit a true copy of the mortgage and the original mortgage;
(3) show the circumstances under which the right to possession arises and ... the state of the account between the mortgagor and mortgagee with particulars of –
(a) the amount of the advance;
(b) the amount of the periodic payments required to be made;
(c) the amount of any interest or instalments in arrears at the date of issue of the originating summons and at the date of the affidavit; and
(d) the amount remaining due under that mortgage.
(4) in a claim for delivery of possession, give particulars or every person who, to the best of the Plaintiff’s knowledge, is in possession of the mortgaged property.
Order 88 of the High Court Rules only deals with actions relating to mortgages. It gives mortgagees the right to claim possession without being the registered proprietor with or without foreclosures. To that extent Order 88 is available to him. Nothing can inhibit him from utilising Order 88.
12. In NBF Asset Management Bank v Sharma [1999] FJHC 159; HBC0132J.1999 (2 September 1999), Shameem J stated:
Provided Order 88 has been complied with, the mortgagee has unquestionable rights to possession.
13. It is well established under the common law that a mortgagee has a right to possession. Thus in Western Bank Ltd. v. Schindler [1977] 1 Ch. 1, Goff L.J. stated:
It has for a very long time been established law that a mortgagee has a proprietary right at common law as owner of the legal estate to go into possession of the mortgaged property. This right has been unequivocally recognised in a number of modern cases: see, for example, Four Maids Ltd. v. Dudley Marshall Properties Ltd [1957] Ch. 317. ... It has nothing to do with default: see per Harman J. in the Four-Maids case where he said, at p. 320:
The mortgagee may go into possession before the ink is dry on the mortgage unless there is something in the contract, express or by implication, whereby he has contracted out of that right.
A mortgagee, upon default in payment of the mortgage money or any part thereof, may enter into possession of the mortgaged land by receiving the rents and profits thereof or may distrain upon the occupier or tenant of the said land for the rent then due.
The mortgage
If I/any of us:
- fail to pay HFC an amount due under this Mortgage or a Secured Agreement or
- fail to do anything I/we promise HFC or that I/we must do under the Mortgage or a Secured Agreement
and the failure continues for at least seven days, HFC may notify me/us of the failure and serve a notice on me/us.
If the failure continues for at least thirty days after service of the notice then HFC can do any one or more of the following, but it need not do so:
- Demand that I/we or any of us or all of us to pay to HFC all money secured by this Mortgage and payable by me or any of us or all of us under the Secured Agreements. I/each of us will then pay immediately all principal and all other amounts which I/we promise to pay under this Mortgage and the Secured Agreement, even if they are not yet otherwise payable
- Take possession of the property
- Sell the property in one or more lots or with other property
- Do anything I/we could do in relation to all or part of the property. For example:
- let it;
- improve it;
- subdivide;
- demolish;’
- vote at meetings;
- carry on any business or other activity;
- collect rents and other amounts;
- surrender it;
- deal with leases and other rights and agreements (for example, perform them, exercise rights under them, enforce them, give consents, or end or change them);
- sign or execute any document or agreement;
- make, defend, enforce, pay and settle insurance or other claims; and
- dedicate it to a government body.
_ Appoint one or more receivers, (who alone or together may do anything HFC can do as set out above); remove or replace such a receiver; and fix the remuneration of any receiver.
‘Now those powers so given may undoubtedly, be often used for purposes of oppression. They are however, powers which the party having a power of the property thinks proper to confer on the individual from which he borrows the money; it is a bargain; one party parts with his money, and he has to pay himself out if the property upon which it is charged; and it is for the other party, who creates the mortgage, to consider whether he has not given too large a power to the individual with whom he is dealing. But when once it is given, the party advancing his money is perfectly entitled to execute the power which such a contract gives him. However if the power is sought to be exercised for exorbitant purposes, without a due regard to the interest of the parties concerned, this Court will interfere under certain circumstances, and, like other pledges, if the individual comes and deposits the money, the Court will, under certain circumstances prevents a party from exercising that power arbitrarily, but not without the actual deposit of the sum which the other party is entitled to.
Now it is quite clear, that the interests of society (and more particularly financing institutions) require, and the justice of such
a case requires that those powers, when they do not come within the (above) principles on which the Court has acted, should not be
interfered with; it is merely a power which the individual has given.’
The usual practice in Order 88 applications is to annex a true copy of the mortgage and to produce the duplicate of the registered mortgage on hearing. The original is always kept at the titles Office and if Mr. Sharma’s submission were correct, the Registrar of Titles would need to be subpoened on each occasion to produce the mortgage. Mr. Sharma’s query is answered by Cross on Evidence 2nd New Zealand edition at page 574 where it states –
'There are certain private documents which must be filed in a Court or other public office and when they are thus filed, the copy issued by the Court or other office may be treated as the original. Thus the second executed copy of a Memorandum of Mortgage registered under the Land Transfer Act 1952 is an original.'
The mortgage produced in court was the second executed copy of the registered mortgage.
This Court has long held the view that failing payment into Court of the amount sworn by the Mortgagee as due and owing under the Mortgage, no restraint should be placed on the exercise of the Mortgagee’s powers of sale under the mortgage (see Westpac Banking Cotioration Ltd –v- Adi Mahesh Prasad (1999) 45 FLR 1; NBF Asset Management Bank –v- Kolinio Bulivakanua and Selina Mau Bulivakarua Civil Action No. 97 of 1999 unreported decision of Byrnas he then was) delivered on 30 November 1999; NBF Asset ManageBank Bank –8211;v- Donald Thomas Pickering and Eileenering Civil Action No. 170 of unr9 unreported rted decision of Byrne J (as he then was) delivered on 19 May 2000 andNBF Asset Management Bant Bank –v- Naipote Vere and Another Civil Action No. 323 of del1 delivered 10 November 2003 unreported per Scott J).
And later:
The only way in which the claim for possession may be defeated is byyment into court of the whole amount claimed to be owing unng under the mortgage as at the date stated in the affidavit in support...
Orders:
S.F. Bull
Acting Master
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URL: http://www.paclii.org/fj/cases/FJHC/2016/919.html