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Australia and New Zealand Banking Group Ltd v Dean [2012] FJHC 856; HBC96.2011L (9 February 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 96 of 2011L

BETWEEN:

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
Plaintiff

AND:

FRANCES DEMO DEAN
Defendant

JUDGMENT ON ORIGINATING SUMMONS

Judgment of: Inoke J.

Counsel Appearing: Ms B Narayan (Plaintiff)
Ms L Tabuakoro (Defendant)

Solicitors: Lateef & Lateef (Plaintiff)
Muskits Law (Defendant)

Dates of Hearing: 9 February 2012

Date of Judgment: 9 February 2012

INTRODUCTION

[1] This is an application by the ANZ Bank to evict the defendant and her family from a property which had been mortgaged to the bank and in respect of which the bank has exercised its power of sale.

[2] The originating summons was set down for hearing today but the defendant's solicitor had foreshadowed in a note to the bank's solicitor on the day before (8 February 2012) that he intended to ask for an adjournment of the hearing because the solicitor was otherwise engaged in another matter in Suva and was not able to attend at the Lautoka High Court. The reasons are purely for the benefit of the lawyer and his right to practice as such.

[3] I refused the application for adjournment and went on to consider the eviction application. This is my judgment.

CASE HISTORY

[4] The Originating Summons and affidavit in support were filed on 24 June 2011. It was initially issued against the defendant's brother who was in fact not the occupant of the premises so the bank filed an application to substitute the current defendant as the proper party on 24 August 2011 which I granted on 26 August 2011. The amended summons was served on the defendant and Muskits Law acknowledged service on behalf of the defendant on 14 October 2011. On the first call of the amended summons on 17 October 2011 both parties appeared by counsel and by consent directions were given for the filing of affidavits, 21 days for the defendant and 14 days for the plaintiff, and further mention on 21 November 2011. The defendant had not filed her affidavit in reply on 21 November 2011 so I gave her a further 7 days and set the matter down for hearing on 9 February 2012.

[5] By a note dated 8 February 2012, the defendant's solicitor sought the agreement of the bank's solicitor to an adjournment of the hearing. The note was copied to the Court registrar.

[6] The bank's solicitor wrote back on the same day informing the defendant's solicitor that she could not agree to the adjournment for the reasons outlined in the letter. The letter was also copied to the registrar. The bank's solicitor also indicated that she was willing to "consent to a stay of execution of vacant possession order for 6 weeks to allow your client sufficient time to vacate".

THE APPLICATION FOR ADJOURNMENT

[7] As I have indicated above, the reasons given by the defendant's solicitor were purely for his benefit. No affidavit in reply had been filed and no explanation had been given. The matter was set down in November last year for hearing in February this year. The defendant's solicitor did not indicate then, or in his note that was sent yesterday, that he had already committed himself to another appointment which would clash with today's hearing appointment.

[8] In my opinion, the defendant had been given ample time to file her reply but had not taken the opportunity. She and her solicitor are the only ones not ready to proceed. I do not think delaying the hearing any further would do justice to the bank. The defendant could not be said to be prejudiced in that she had chosen not to exercise her right to put her case, a case which has no merit on the material before me. Under these circumstances I refuse to grant the adjournment. If authority is needed I refer to Goldenwest Enterprises Ltd v Pautogo [2008] FJCA 3; ABU0038.2005 (3 March 2008):

... if refusal to grant amounts to denial of a fair hearing and hence denial of natural justice or procedural unfairness, or where it would cause definite and irreparable harm to the party seeking it, an adjournment should be granted; the objecting party is compensated by costs – unless the adjournment would cause irreparable damage to it. Then a court must weigh up the competing interests and consequences ruling according to the fairness and justice of the particular case. There is however a requirement that there is no 'fault' on the part of the party seeking the adjournment.

[9] Ms Tabuakoro appeared with limited instructions from her instructing principal. She was not able to proceed with the hearing so I gave her leave to withdraw after pointing out to her what the Court of Appeal had said in Krishna Brothers v Post and Telecommunications Ltd [2005] FJCA 36; ABU0028.2004S (29 July 2005):

It is improper conduct by counsel to appear on a date set for hearing with sufficient instructions only to seek an adjournment. If he cannot be ready to conduct the case on a date he knows is already fixed for hearing, he should not accept instructions.

THE APPLICATION FOR VACANT POSSESSION

[10] The application is made under O 88 of the High Court Rules 1988 which allows a mortgagor having the right to foreclose to seek an order for delivery of possession by any person in possession of the property: O 88 r 1(1). The affidavit in support deposed that the property, CT 15933 being Lot 7 on DP 4126 Vitogo and Drasa in Ba and all improvements and fixtures thereon, were mortgaged to the bank and charged by the estate of Chandar Prakash. The mortgage had fallen into arrears so on 29 October 2010, the bank's solicitor made a demand on the administratrix of the registered proprietor for payment of the arrears. She requested the bank to allow her to sell the property privately which the bank agreed. She later informed the bank that her efforts were not successful and asked the bank to proceed with the sale of the property. The bank has now signed up a purchaser but is awaiting vacant possession. The bank has given notice on 2 February 2011 to the defendant who is the current occupier of the property to give vacant possession but the defendant has refused. The affidavit also provided the particulars of the amounts owed under the mortgage as required by O 88 r 3(3).

[11] I find that the originating summons and affidavit in support comply with the requirements of O 88 rr 1 and 3 HCR. They clearly show that the defendant has no right to remain on the property. I therefore grant the order for vacant possession. However, in light of the bank's solicitor's willingness to allow the defendant time to move out by staying execution for six weeks, I order that execution be stayed accordingly.

COSTS

[12] The plaintiff does not want an order for costs.

THE ORDERS

[13] I therefore grant the order for vacant possession of the property described in CT 15933 being Lot 7 on DP 4126 Vitogo and Drasa in Ba and all improvements and fixtures thereon but stay execution thereof for 6 weeks from today.

Sosefo Inoke
Judge