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Australia and New Zealand Banking Group Ltd v Vision Properties Ltd [2012] FJHC 1109; HBC12.2011 (18 May 2012)

IN THE HIGH COURT OF FIJI
AT SUVA

Civil Appeal No. HBC 12 of 2011

BETWEEN:

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
Appellant

AND:

VISION PROPERTIES LIMITED
First respondent

AND:

NORTHERN PROJECTS FIJI LIMITED
Second respondent

Appearances : Ms B. Narayan for the appellant
Mr Parshotam for the first respondent

Date of hearing: 24th November, 2011

JUDGMENT

The question in this appeal, is whether an intervener in a case, may file an appeal, although no order has been made against him.

The substantive litigation related to a freehold property, namely, lot 1 on DP 8349 comprised in certificate of title number 32768, of which Northern Projects Fiji Limited was the registered proprietor. Vision Properties Limited had filed action against Northern Projects Fiji Limited for specific performance of an agreement tendered by Northern Projects Fiji Limited, for the sale of that property. Master Amaratunga had ordered Northern Projects Fiji Limited to transfer the property to Vision Properties Limited free of all encumbrances, upon payment of the purchase price.

The appellant,Australia and New Zealand Banking Group Ltd (ANZ), was permitted to intervene as an interested party, since the Bank had obtained a first registered mortgage on the property. In this appeal, ANZ seeks to set aside the order of the Master and that Vision Properties Limited be ordered to remove caveat registration no 734824 filed on the property.

The writ of summons and statement of claim filed before Master Amaratunga was a sequel to an action initially commenced by Northern Projects Fiji Limited against Vision Properties Limited in High Court Civil action No.270 of 2010 for removal of caveat734824, which was lodged against the title to the property. Master Tuilevuka had directed Vision Properties Limited to institute proceedings to establish the right it claims in the caveat.
The hearing

At the hearing, counsel for Vision Properties Limited, Mr Parshotom raised a preliminary objection namely, that this appeal is misconceived. He asserted that since no relief was sought by the intervener before Master Amaratunga and no order was made against ANZ, this appeal by ANZ cannot be maintained . He relied on section 6 (2) of the Administration of Justice Decree 2009, which provides that "the High Court has jurisdiction... to hear and determine appeals from all judgments of subordinate courts".

Mr Parshotom asserted further that ANZ had not made an application to remove the caveat in question and was trying to remove the caveat by way of this appeal. The process for removal of a caveat, he stated, was prescribed under the Land Transfer Act. He drew the attention of the court to the issues for determination before the Master, namely whether there was an agreement for the sale of the property by Northern Projects Fiji Limited to Vision Properties Limited, and if so, should Northern Projects Fiji Limited be ordered to specifically perform the agreement by transferring the property to Vision Properties Limited.

The riposte of counsel for ANZ,Ms Narayan was that ANZ had sought to resist the action. She contended that that it was not necessary to make a separate application for removal of the caveat. She relied on Order 15 r 6 (3) of the High Court Rules. Order 15 rule 16 (3) is in these terms:

"An application by any person for an order under paragraph (2) adding him as a party must, except with the leave of the Court, be supported by an affidavit showing his interest in the matters in dispute or, as the case may be, the question or issue to be determined as between him and any party to the cause of matter." ."(emphasis added)

The determination

This was an action filed for specific performance. ANZ filed summons to be added as a defendant. The affidavit filed in support, stated that it was necessary for the Bank to be a party to the action, as the Bank holds a first registered mortgage over the property and any proposed order made by court for specific performance of the sale agreement, as alleged by the plaintiff would have direct adverse consequences against the Bank's right as mortgagee, which takes priority.
I do not find any application made for removal of the caveat in the summons nor in the affidavit in support.

Master Amaratunga had not made an order against ANZ.An appeal lies only against judgments, decrees, orders and sentences, and not against reasons, as contended by Mr Parshotam. In support, Mr Parshotam cited the following passage from Driclad Pty, Ltd v Federal Commissioner of Taxation, [1968] HCA 91; 121 CLR 45 at page 65:

"... because it is of the nature of appeals, as s. 73 of the Constitution recognises, that they lie only against "judgments, decrees, orders and sentences", not against reasons. The word "judgments" in this connexion refers only to operative judicial acts, and is not used, as it often is in other contexts, as a convenient abbreviation for reasons for judgment ."(emphasis added)

Mr Justice I. R. Thompson in Sukh Deo Prasad v The Attorney General, (Civil Appeal No. ABU 0029 of 1997) stated:

"The reasons given for a judgment or order may show that it is wrong or not the result of proper judicial consideration of the facts or the law or both; but it is only the judgment or order itself which has legal effect. For that reason it is only the judgment or order against which appeal can lie to this court". (emphasis added).

At the forefront of Ms Narayan's argument was the case of Amon v Raphael Tuck & Sons Ltd, (1956) 1 QB 357, where Lord Devlin declared:

"An affidavit is not enough, for it is not a document that formulates issues. It would generally be necessary to see the counterclaim and the defence to it before deciding whether the two matters ought to be litigated as one. The procedure for consolidation allows that to be done and, indeed, normally requires it."(emphasis added)

This passage, contains in my view, the essence of Lord Devlin's conclusions on the inadequacy of an affidavit in making a claim .

I find difficulty however, in reconciling with the reasoning in the case of Ram Dutt Prasad v Australia And New Zealand Banking Group Limited, No. HBC 0121/99 as also relied on by Ms Narayan, in her written argument. Justice Mr Scott in dealing with a similar issue of caveat lodged against a mortgaged property held that "although no summons as such was filed by the mortgagee bank in terms of section 109 of the Land Transfer Act", he was satisfied that he could "fairly adjudicate on the question of the caveat in the present proceedings".
I agree with Master Amaratunga, that if a mortgagee wishes to have a caveat removed, he has to file an application in terms of Section 109(2) of the Land Transfer Act.

Orders

In my judgment, for the reasons I have given, the appellant's appeal cannot be maintained. I uphold Mr Parshotam's preliminary objection and dismiss the appeal with costs summarily assessed in a sum of $ 1000 payable by ANZ to Vision Properties Limited.

A.L.B. Brito- Mutunayagam
Judge

18th May, 2012