IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0412 OF 2004

BETWEEN:

NIKO JOHN WILSON
Plaintiff

AND:

HOUSING AUTHORITY
First Defendant

CHIEF EXECUTIVE OFFICER
Second Defendant

REGISTRAR OF TITLES
Third Defendant

Counsel: Mr. Naco – for Plaintiff
Mr. Maharaj – for Defendant

Date of Hearing & Ruling: 8th June, 2005

EXTEMPORE RULING

Because this is an extempore judgment given immediately after the hearing of the matter I reserve the right to recall and perfect the judgment.

Background

Mr. Wilson owns a property that is the subject of mortgages to the first defendant Housing Authority. He fell into arrears of his mortgage. The Housing Authority sought to sell the property and then Mr. Wilson took the quite unusual step of caveating his own property to prevent a mortgagee sale.

That matter came before my brother Justice Scott in proceedings against virtually the same parties contained in Civil Action No. 260 of 2001. That matter was the subject of an order by my brother Justice dated the 30th of November 2001. That can be seen as an annexure to the affidavit of Sisilia Rakesa dated the 20th of October 2004.

I detail the background of the matter in this way because it is clear that this originating summons filed by Mr. Wilson seeks to recover the grounds and evidence essentially dealt with by my brother Justice Scott in related proceedings concerning the extension of that caveat to which I have earlier referred.

I am advised and accept from counsel that as at the date of my brother Justice Scott’s order there had been default in mortgage payments for some 6 years. The result of my brother Justice Scott’s order was that provided Mr. Wilson paid a sum of $31,000.00 by the 28th of December 2001 then the caveat registered against the property seeking to protect Mr. Wilson’s interest and frustrate the mortgagee sale could be maintained. This would in effect see the mortgage debt bought up to date and the matter settled.

It transpired that Mr. Wilson did not pay that $31,000.00, did not negotiate successfully any extension or re-adjustment of his mortgage facility and further did not make any payments against his mortgage from the date of that order the 30th of November 2001 down to today’s date.

When it became clear to the first defendant Housing Authority that Mr. Wilson was not going to honour the terms of the consent order by my brother Justice Scott they pressed on with mortgagee sale proceedings. They have now advertised and sold the property. However, Mr. Wilson remained in possession and indeed until today has had the benefit of some 11 years of possession without making any mortgage payments to the defendant Housing Authority.
These Proceedings

No doubt inspired by a natural desire to protect his personal interests and the best interests of his family Mr. Wilson brought the originating summons the subject of this action No. 412 of 2004.

The originating summons seeks declarations that he is being unfairly treated, denied his constitutional rights and also a declaration that there was never any mortgagee sale notice given to him after the 28th of December 2001. He says he wants the mortgagee sale declared void as initio as he has been denied his equity of redemption.

The summons also seeks a declaration that there was a failure to advertise the mortgagee sale. It then in paragraphs (d) through (h) seeks to traverse a large part of the material that was undoubtedly before my brother Justice Scott.

This Application

The defendants apply to strike out this originating summons upon the classic grounds under Order 18 Rule 18 that it discloses no reasonable cause of action and is otherwise an abuse of process of the court. I am further asked to consider an order for vacant possession of the property so that the defendant can practically complete the mortgagee sale.

Understandably the application to strike out is opposed.

Mr. Maharaj for the defendant authority originally argued this matter before me in February of this year. At that time he drew to my attention that this matter was the subject of an earlier ruling by my brother Justice Scott on the caveat lodged against the Housing Authority’s powers of mortgagee sale. He reminded me that Scott J. had resolved the issue of the caveat and by implication the issue of the mortgagee sale notice. That is a submission I am prepared to accept.

However, it transpired during the course of that hearing in February that the plaintiff had deposed in his affidavit that the Housing Authority had never served him with a mortgagee sale notice. I accordingly adjourned the hearing part-heard to allow that issue to be addressed.

In short form the issue was addressed. It became quite clear that an appropriate demand notice had been served. It was contained in the plaintiff’s first affidavit referred to as annexure NK(12). The original demand notice was clear that no further notice would be given.

Subsequent to that hearing in February Mr. Naco was instructed to pursue the matter on Mr. Wilson’s behalf. The matter was adjourned throughout the months of February through to June upon the basis that some administrative or political accommodation might be sought by the plaintiff to resolve the matter. As I advised counsel those sorts of without prejudice discussions occurring outside the framework of court proceedings are not relevant. Suffice it to say that those avenues have been completely exhausted by Mr. Wilson and today the hearing resumed on the defendant’s application to strike out the summons.

Mr. Maharaj quite properly and simply says that my brother Justice Scott’s order was valid and unchallenged, that Mr. Wilson did not comply with it, that Mr. Wilson did not appeal, that there being no stay sought in respect of that order, that the caveat should therefore lapse and the mortgagee sale proceed to its natural conclusion.

Counsel points out and I accept that I have no power to review the judgment of my brother Justice, then, of concurrent jurisdiction. He says that the orders made in those earlier proceedings by inference address the issue of the mortgagee sale and that Mr. Wilson has failed to take advantage of a quite favourable settlement and is effectively abusing the court’s process by bringing successive litigation to cover the same matter. He says that the originating summons contains no reasonable cause of action.

Mr. Naco in response emphasizes the humanitarian aspects of his client’s position but cannot gain say the submissions of Mr. Maharaj and indeed in my view quite properly concedes that it would not be correct for me to seek to review my brother Justice Scott’s earlier decision. The matter, however, does not end there because the first defendant does not only ask for orders striking down Mr. Wilson’s originating summons but also collaterally orders for vacant possession to enable the first defendant to complete its mortgagee sale of the property.

The Law

The Fiji Court of Appeal in its decision of National NBF Finance (Fiji) Limited v Buli, CA No. ABU0057 of 1998, gave good guidance on the principles for striking out. Their Lordships said at page 2:

“the law with regard to striking out pleadings is not in dispute. Apart from truly exceptional cases the approach to such application is to assume that the factual basis on which the allegations contained in the pleadings are raised will be proved. If a legal issue can be raised on the facts as pleaded that the Courts will not strike out a pleading and will certainly not do no on a contention that the facts cannot be proved unless the situation is so strong that reasonable notice can be taken of the falsity of the factual contention...”.

Concerning Abuse of Process

I reviewed that law in a decision between Mr. Timoci Naco and Mr. Masirewa v Colonial Mutual Life Assurance Society, Civil Action No. HBC0413 of 2003. In that decision I referred to Reid v New Zealand Trotting Conference [1984] 1 NZLR at page 9 where Richardson J explained abuse of process principles. In that decision the court observed that the court system exists to resolve disputes in a just manner but that filing new proceedings and asking the court again to resolve disputes also under adjudication, ruled as no longer capable of being decided or decided in part albeit in a separate but related forum must be an abuse of the process of the court.

The rule of law requires the existence of courts for the determination of disputes and that litigants have a right to use the court for this purpose. Courts must also however, in my view, be alert to their processes being used in a way that results in oppression or injustice to any party. The court’s authority possessed of neither the purse nor the sword ultimately rests on a sustained public confidence in its moral sanction. Anything that attacks confidence in that moral sanction is accordingly an abuse of process of the court’s function. It is difficult for parties to maintain confidence in court rulings if those rulings are indirectly attacked in a court of concurrent jurisdiction.

Decision

I find in this case that the originating summons filed by Mr. Wilson is not much more than a thinly veiled attempt to motivate the court to review an earlier decision made in not dissimilar proceedings.

The earlier decision made by my brother Justice Scott may have been in relation to a caveat but the subject matter of the proceedings is exactly the same. At that time this plaintiff had failed to pay his mortgage. At that time this plaintiff had fallen into mortgage arrears. At that time Mr. Wilson sought to frustrate the mortgagee sale process by caveating his own title. Those issues are well resolved and the effect of Scott J’s orders quite clear. If Mr. Wilson paid the amount of money that was then outstanding his caveat could remain and the mortgagee sale process thereby frustrated. Had he earlier accepted these terms of settlement I have no doubt that the substantive matter would have settled.

His affidavits filed in opposition to this application detail the personal and human story as to why he couldn’t make that payment in December 2001 and the court is not without sympathy for his predicament or the predicament of his family, but the simple fact of the matter is that although he was offered a compromise at that time he didn’t pursue it.

In fact he now comes to court essentially asking for an equitable intervention. However, those that come to the court seeking an equitable intervention must do so with clean hands. The simple fact of the matter is that Mr. Wilson for whatever reason has been unwilling or unable to honour his mortgage commitments for the past 11 years. He has effectively enjoyed the occupation of this property without accepting the responsibility of making any payments whatsoever. In those circumstances any prayer for equity that he may have made has long since been exhausted. I find that it would be an abuse of process of this court for me to reconsider the issues raised in the summons particularly in paragraphs (d) through to (h).

Regarding Mr. Wilson’s claim that there was a failure to give notice and a failure to advertise the mortgagee sale thereby denying him the equity of redemption. I completely reject those parts of the summons as disclosing effectively no reasonable cause of action or in effect disclosing no reason why the court should enter into the process of making any declaration on those matters.

This is for the simple reason that is quite clear from annexure K12 that Mr. Wilson did receive a demand when his mortgage fell into arrears. That demand in its terms is very clear. It is dated the 11th of June 2001. It said to Mr. Wilson that if payment in full was not received the Housing Authority would take action to terminate his interest over the property without further notice to him. It said that any payments made subsequently would only be received without prejudice and it said that he would be required to quit the property and give vacant possession and if necessary the Housing Authority would enforce its rights of re-entry or forfeiture by legal action.

That demand notice remained active and survived the ruling of Scott J. There was no need for any subsequent demand notice to be sent to Mr. Wilson because he simply failed to accept the compromise proposed by my learned brother Justice’s consent order. In short Mr. Wilson failed to pay the $31,000.00 in December of 2001 and the Housing Authority was thereafter quite clearly entitled to proceed with its mortgagee sale.

It would be unreasonable for this court to engage in re-traversing unsustainable issues. Further, as I have earlier said, it would be improper of me to do so bearing in mind the ruling of my brother Justice Scott given in November of 2001.

Vacant Possession

I am shortly going to grant the amended summons of the defendant. When I do so the issue of vacant possession also needs to be addressed. Mr. Maharaj on that topic submitted that Mr. Wilson had effectively enjoyed 11 years of occupation of this property without meeting the responsibility of making any payment. He submitted that any prayer for equity or any mercy that might be shown to Mr. Wilson had long since been exhausted. He said that the property had been sold that the new owners had been making payments. He advised and I accept from the bar that payments of some $12,000.00 had been made against the mortgage interest. However, the new owners have not enjoyed the benefit of possession of the property they purchased. He said that it was a matter of balance and that in his view a further 30 days within which Mr. Wilson should vacate the property was reasonable. Mr. Naco on that issue chose simply to submit that a further 2 months would be a more reasonable time to allow Mr. Wilson and his family to re-organize their affairs and leave their home.

I have given this matter some careful consideration. While it might fairly be said that Mr. Wilson’s ability to ask for further time because of humanitarian or equitable issues was long since exhausted, nonetheless, in practical terms, he will have the burden of finding new accommodation for his family In those circumstances I am prepared to accede to Mr. Naco’s request that Mr. Wilson be given 2 months to pass over vacant possession.

Conclusion

These then are my orders:

The amended application to strike out the summons is granted and Mr. Wilson’s undated originating summons (stamped the 16th of September 2004) is hereby struck out.

The first defendant’s amended application for vacant possession is granted. However, vacant possession will take place on the 8th of August 2005.

Costs – Mr. Maharaj quite rightly advises that the first defendant has been put to considerable expenses in meeting a completely unmeritorious originating summons application. He seeks a significant order for costs to compensate the first defendant for its expense in pursuing the completion of the mortgagee sale in these circumstances. In my view costs are not to be punitive but should fairly reflect the expense of a successful litigant. I determine a global sum of $1,000.00 as a reasonable reflection of both the number of appearances required in this matter, the fact that it was adjourned part-heard in February of this year and the associated disbursements necessary for the first defendant in meeting, preparing, filing and serving its application. Those costs are to be paid on or before the 8th of August 2005.

In relation then to the caveat it follows as a logical consequence of these orders that Caveat No. 493789 be removed from Sub-Lease No. 255773 Lot 11 on DP 5254.

Gerard Winter
JUDGE
At Suva
8th June, 2005