On 27th November 1999 the Defendant advertised the sale on 295 Mead Road, and Toyota Land Cruiser CL 946. An interim injunction restraining
sale was dissolved by this Court on 17th January 2000.
The Plaintiff in the body of the Statement of Claim alleges negligence on the part of the Defendant in the restructuring of the car
loan. However the only relief sought is -
“(a)  eclaDation that the Dehe Defendant Bank is in breach oach of the provisions of the Consumer Credit Act, No. 15 of 1999
and that the seizure and advertisements for sale of Toyota Land Cruiser CL 946 and Crown Lease No. 2627 situated at 295 Mead Road
Suva are null and void;
(b) & p; &nsp; Gsp; General damages tasse assessed;
(d) ;&nbssp; &nsp; Asp; Any relief or orhich hich the Court deems just;
(e) &nbssp; &nsp; Interest on als sumimed toed to the date of settlement.”
T-GB>The application to strike out was heard in Chambers on 27th January 2000. Mr W. Clarke for the Defendabmitted that the Plaintiff’s
claim relied entirely on the Cthe Consumer Credit Act 1999. He submitted that the Bill of Sale and mortgage in this case had been entered into well before date on which the Act came into force,
and that the Act did not have retrospective effect. He said this was so even though the Notice of Demand was issued after the Act
came into effect, because the Act must be deemed not to have retrospective effect.
Mr A. Seru for the Plaintiff submitted that the Act applied to all Notices of Demand issued after May 1999. He further said that he
wished to amend the Statement of Claim claiming an alternative ground of negligence, but had been unable to do so because the Defendant
had failed to supply the Plaintiff with a copy of his 1992 loan account figures. He asked the court to exercise its discretion to
order amendment instead of allowing this application.
Order 18 Rule 18(1)(a) provides as follows:
“(1) &nThe Cmart t a a staye of e of the proceedings order to be s be struck out or amended any pleading or the indorsement of
any writ in ttion,nythi any ing or in the indorsement, on the ground that -
(a) &nnbsp;;&nspp; isp; it disc discloses no reasonable cause of n or defence, as the case mase may be;”
&n/span In Dyson -v- Attorney-General (1911) 1 KB 414 it was held that this rule ought not to be applied in matters involving serious investigations of ancient law and questions of general
importance. Moreover the Court will not permit the Plaintiff to be “driven from the judgment seat” unless the cause of action was
obviously and almost incontestably bad.
In Drummond-Jackson -v- British Medical Association (1970) 1 WLR 688, Lord Pearson said that a reasonable cause of action means a cause of action with some chance of success when only the allegations
in the pleading are considered. This is so even if the particulars disclose some cause of action. The fact that a case is weak and
will probably not succeed is not a ground for striking out (Wenlock -v- Malomy (1965) 1 WLR 1238.
In Addis -v- Crocker (1960) 1 QB 87, it was held that even when an action was statute-barred, striking-out was not the proper procedure, an application for the trial
of a preliminary issue being the correct remedy. Alternatively, in a very clear case, the Defendant can apply to strike out on the
ground that the claim is frivolous, vexatious and an abuse of the process of the Court (Riches -v- Director of Public Prosecutions (1973) 1 WLR 1019).
In this case the Defendant’s application rests on a submission that the Consumer Credit Act 1999 has no application to Notices of Demand issued after May 1999, if the mortgage/bill of sale was entered into before May 1999. The
Defendant says that applicability of the Act to mortgages executed before May 1999, would be to offend the presumption against retrospectivity.
However in R -v- Secretary of State for the Home Department ex parte Mundowa (1992) 3 ALL E Staughton LJ said at page page 612 in relation to the presumption against retrospectivity of the application of statutes:
“.... the presumption does not necessarily apply merely becaume of the facts on which the statute operates will have occe occurred
before it was passed. It is easy to think of examples. Suppose that a statute enacted that all persons reaching the age of 21 should
be liable to two years military service. Could an unwilling conscript argue that it applied only to persons born - or more plausibly,
conceived - after the passing of the Act? .... It would be absurd if the presumption against retrospectivity applied in every case
where any single fact relevant to the operation of the statute occurred before it was passed.”
In re a Solicitors Clerk (1957) 3 ALL ER 617 the Law Society made an order that a solicitor’s clerk who had been conviof larceny before the enactenactment of the Solicitors (Amendment)
Act 1956, should not be employed by any solicitor without the written permission of the Law Society. The Law Society was empowered
to make the order under the 1956 Act. The clerk argued that the Act could not have retrospective effect. Lord Goddard CJ said at
p.619 -
“In my opinion, however, this Act is not in truth retrospectiveenables an order to be made made disqualifying a person from acting
as a solicitor’s clerk in the future and what happened in the past is the cause or reason for the making of the order; but the order
has no retrospective effect. It would be retrospective if the Act provided that anything done before the Act came into force or before
the order was made should be void or voidable or if a penalty were inflicted for having acted in this or any other capacity before
the Act came into force or before the order was made. This Act simply enables a disqualification to be imposed for the future which
in no way affects anything done by the appellant in the past. Accordingly, in our opinion the disciplinary committee had jurisdiction
to make the order complained of and the appeal fails.”
In this case the Plaintiff has at least an arguable case the Act, whilst it does not apply to execution of mortgages before May 1999,
does apply toly to notices of demand, and the exercise of powers of sale under section 80 of the Act, dated after May 1999. He can
argue that the applicability of section 80 to mortgages executed before May 1999, does not on its own, give the legislation retrospective
effect.
On the grounds therefore, that this is not a claim that is clearly and “incontestably” bad, I refuse this appion. The Plaintiff wishes
thes to amend the Statement of Claim. Leave is granted to do so within 21 days.
The Defendant is to pay the Plaintiff costs of this application, which I set at $50.00.
Nazhat Shameem
1"> JUDGE
At Suva
7th February
Hbc0595x.99s
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