Mr. A. Tikaram for the Plaintiff
Mr. S. Lateef for the Defendant
RULING
On the 16th of October 1998this Court granted inter partes an interim injunction restrrestraining the defendant bank from further exercising
its power of sale under a mortgage granted to it by the plaintiff over C.T.14929 in 1994. On 11th November 1998 in the absence of counsel for the plaintiff or an affidavit disputing or challenging the defendant's affidavit, the injunction was
ordered `dissolved forthwith'.
Five (5) months passed and on 30th April 1999 laintiff again sought an inan injunction restraining the defendant bank from exercising its mortgagee power of sale. This fresh application
was opposed in an affidavit deposed by an official of the defendant bank and by counsel appearing. Another interim injunction was
granted to allow the plaintiff to file an affidavit in reply. This was done on 11th May 1999.
There are some common undisputed elements to the affidavits that bears highlighting, such as:
(1) ;&nspp; Tse plaintiff is this the registered proprietor of C.T.14929 at Pacific Harbour,a wh"> which sich she puhe purchased in 1990 (`the property') ;
(2) &nnbsp;;&nspp; The >The property was mortgaged to the defendant bank in 1994 to secure loan facilities provided to the plaintiff ;
(3) &nbbsp; The plaintiff has been undn undoubtedly erratic in her loan repayments since 1995 and frankly accepts that `(she) dted i repa arrant in resulting in the dthe defendefendant bant bank eank exercixercising its power of sale as mortgagee' ;
(4) &nbbsp;& &nsp; Ssp; Since October 1b>8 the defendant bank has publicly advertised the property under mortgagee sale with the most recent tisemeing >Apri9 ;
bsp; NhtwitditanC ause ause 20(f) of the mortgage there is no suggestion by the plaintiff in any of her affidavits that she did not understand the nature and effect
of the mortgage such as to raise `non est factum', nor is it suggested that the mortgage was obtained as a result of `undue influence'.
grateful to counsels for their comprehensive submissions which I found extremely useful in l in clarifying the issues involved in
this application.
Briefly, the defendant bank claims that since 1995 the plaintiff een irregular in her mortgaortgage repayments, and despite her numerous promises to regularise the defaults and refinance
the loan on two occasions, and despite a generous offer by the defendant bank to settle the plaintiff's burgeoning debt for a significantly
lesser amount, nothing has eventuated and the plaintiff's debt continues to accumulate unabated.
p class=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> The plaintiff for her part, whilst not denying the default in repayments, vigorously usly challenges `the amount of (her) indebtedness' to the bank and counsel points, in that regard, to various correspondence of the defendant bank indicating varying amounts owed by
the plaintiff ranging from a proposed lump sum settlement figure of $120,000.00 to $165,492.42. It is this apparent `discrepancy' that has prompted counsel for the plaintiff to assert his belief that `there is a serious question to be tried as to the correct and proper quantum of the mortgage debt'.
In this latter regard it is noteworthy that Clause 2 of the mortgage inter alia provides for the payment of interest and declares
`... that a certificate in writing signed b of the officers of the bank ... certifying to the rate or e or rates of interest ... shall
be conclusive evidence of the rate or rates (of interest) ... payable hereunder and that a statement of the principal interest and other moneys due and owing under or secured by this mortgage
... signed in like manner shall be prima facie evidence against all parties interested hereunder of the amounts due owing or secured.'
Furthermore it is authoritatively laid down in Halsbury's Laws of England (4th edn.) at Vo.32 para. 725 that :
p class=MsoNormal stal style="text-align: justify; margin: 1 36.0pt"> `The mortgage will not be restrained from exercising his powerale because the amount due due is in dispute 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.'
As lon as 1847 Lord Cottenham L.C. said of a mortgagee's contractual `powerpower of sale' in Matthie v. Edwards 73 R.R. 776 at p.779 :
`Now those powers so given may undoubtedl often used for purposes of oppression. They are however, per, powers which the party having
a power of the property thinks proper to confer on the individual from whom he borrows the money ; it is a bargain ; one party parts
with his money, and he has to pay himself out of 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 prevent 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 societan> (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.'
That is not to say that the Court is unaware of the inequalities of bargaining power that can often exist between a private borrower
and a large commercial lender ; nor does it mean that the Court is powerless to interfere in cases of oppression or where a reckless
disregard of a borrower's interests are established, no, but before the court will interfere with the exercise of a `power of sale' some prima facie evidence of oppression or reckless disregard must be produced by the borrower.
Having said that however, in this day andof computerised banking records it is a matter of concern tern to hear frequent complaints
from mortgagees that they are unaware of the status of their loan accounts or in particular, their indebtedness when such information,
one would have thought, would be readily available on `the press of a button' so to speak.
In this case afteeful consideration of all the various matters raised by they the plaintiff in her affidavit, I am not at all satisfied
that the defendant bank in the exercise of its `power of sale' has acted either oppressively or in reckless disregard of the plaintiff's interests. Indeed, I am more than satisfied that the plaintiff
has been given every opportunity to redeem the mortgage but with little success. I note also that there has been no offer to pay
into Court the amount claimed by the defendant bank or the arrears of accumulated interest.
For the foregoing reasons the interim injunction gd to the plaintiff on 7t7th May is dissolved forthwith with costs which are summarily assessed as $200 payable within 14 days.
D.V. Fatiaki
JUDGE
At Suva,
30th December, 1999.
HBC0558D.98S
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