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Housing Authority v Tora [1992] FJHC 52; Hbc0259d.92s (3 November 1992)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 259 OF 1992

Between:

HOUSING AUTHORITY
Plaintiff

- and -

1. APISAI V. TORA
2. MELI NATALATU TORA
(As Trustees for the time
being of NATUANIYARAWA
VILLAGE HOUSING SCHEME)
Defendants

Mr. V. Maharaj for the Plaintiff
Mr. R. Krishna for the Defendants

RULING

On the 27th of May 1992 the plaintiff Authority instituted the present proceedings against the defendants for the recovery of loan monies together with interest advanced towards the construction of houses under the Natuaniyarawa Village Housing Scheme. On the same day the plaintiff sought an order pursuant to Order 15 r.14 of the High Court Rules "... that the plaintiff be at liberty to conduct this action against (the defendants) as Trustees of Natuaniyarawa Village Housing Scheme."

On the 17th of July this Court granted the order sought in the absence of the defendants. Then on the 27th of July the defendants applied to set aside the aforesaid 'order for representation' made against them principally on the ground that: "... as the debtors can be verified without any reasonable doubt the subject action should have been issued against them and not in the name of the trustees."

It is necessary to briefly outline the facts as far as may be gleaned from the affidavits and annexures filed by the parties. On the 21st of September 1985 the defendants executed a Deed of Trust wherein they were appointed "as trustees to hold as joint trustees for and on behalf of the Villagers of the said Natuaniyarawa Village Housing Scheme all property both real and personal now and hereafter acquired."

It would appear from the Deed of Trust that the 'settlors' of the trust were 8 named individuals (including the 2 defendants) who formed themselves into an unincorporated association called the Natuaniyarawa Village Housing Scheme with an avowed "... purpose of rehousing and resettling their people at Natalau Village in the Dominion of Fiji."

It is also significant that the Deed of Trust not only empowers the trustees in their absolute discretion to borrow and/or raise money generally for the purpose of carrying out the trust but more specifically it directed them "... (to) enter into an agreement with the principal lender the Housing Authority whereby the Authority shall advance sums of money to the Trustees for the construction of the houses at Natalau Village."

In this latter regard the Acting Director Marketing of the plaintiff Authority has deposed inter alia that "the defendants in their capacity as Trustees of Natuaniyarawa Village Housing Scheme ... were granted four loans by the plaintiff (Authority) to construct houses and to carry out cyclone upgrading to the said houses at the defendant's village at Natalau, Nadi."

This has not been specifically denied as it could have been instead the defendant's have sought to identify the 'trust members' to whom it is alleged the plaintiff Authority lent the monies as evidenced by 2 mortgage documents personally executed by them in favour of the plaintiff Authority to secure loans totalling in excess of $240,000 (which is almost $90,000 more than is deposed to have been lent to the defendants as Trustees of the housing scheme).

Although the plaintiff Authority has not disputed the defendant's assertion as above, it may also be noted that one of the mortgage documents pre-dates the Deed of Trust by almost a year and the other for a loan of $143,659.73 is dated several weeks after and is expressly intended for "... the construction and completion of dwelling houses in Natuaniyarawa Village on the said land in accordance with the plans and specifications approved by the ..."

So much then for the brief facts in this case. I turn next to deal with Order 15 r.14 of the High Court Rules which so far as relevant reads as follows:

Representative Proceedings (Or.15 r.14):

"14 - (1) Where numerous persons have the same interest in any proceedings, ..., the proceedings may be begun, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all ..."

(2) At any stage of proceedings under this rule the Court may, on the application of the plaintiff, and on such terms, if any, as it thinks fit, appoint any one or more of the defendants ... to represent all, ... of those persons in the proceedings and where, in exercise of the power conferred by this paragraph, the Court appoints a person not named as a defendant, it shall make an order under rule 6 adding that person as a defendant."

In discussing the historical origins and nature of the U.K. equivalent of the above rule Megarry J. in John v. Rees (1970) 1 Ch. D. 345 after citing the famous dicta of Lord Macnaghten in Bedford (Duke of) v. Ellis (1970) A.C. 1 at pp. 8 and 10, said at p.370:

"... the rule is to be treated as being not a rigid matter of principle but a flexible tool of convenience in the administration of justice ... The approach also seems to be consistent with the language of (the rule which) ... is wide and permissive in its scope yet it provides adequate safeguards for the substance. I would therefore be slow to apply the rule in any strict or rigorous sense."

and at p. 371:

"It seems to me that the important thing is to have before the Court, either in person or by representation, all who will be affected: and provided that the issue will be fairly argued out, ..."

In Walker v. Sur (1914) 1 K.B. 930 although the members of the Court of Appeal (U.K.) expressed some difficulty in the language of the rule in so far as it applied to 'defendants', nevertheless Vaughan Williams L.J. in recognising the breadth of the Court's discretion in the matter said at p. 934:

"I cannot doubt that the intention of (the rule) was to make easier the bringing of actions for the enforcement of rights against an unincorporated aggregate of people ... The rule, as it stands, does not purport to leave it to the mere will or choice of the plaintiff or of the defendants, nor to give a right in either case of selection at the choice of a plaintiff who wishes to sue representative members of an unincorporated society. As I understand the rule, it lies with the judge to give the authority, and if he thinks it a case in which the plaintiff may properly sue the persons that he proposes to sue as people proper to be authorised to defend in such cause or matter on behalf of or for the benefit of all persons so interested, then the order may be made."

Applying the above principles to the brief facts of this case as outlined earlier and mindful that the defendants are themselves members of the 'housing scheme' and are the particular persons with whom the plaintiff Authority dealt with in respect of the loans to the 'housing scheme' and, more particularly, that the defendants are expressly charged in the Deed of Trust with the responsibility and duty "... (to) ensure that the repayments of the (plaintiff Authority's) loan is correct and punctual", I have no hesitation in affirming this Court's earlier order. The defendants' application is accordingly dismissed.

(D.V. Fatiaki)
JUDGE

At Suva,
3rd November, 1992.

Hbc0259d.92s