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NBF Asset Management Bank v Fatiaki [2016] FJHC 883; HBC149.2002 (30 September 2016)

IN THE HIGH COURT OF FIJI AT SUVA
Civil Jurisdiction

HBC No.149 of 2002

Between

NBF Asset Management Bank

Plaintiff
And
John Vaivao Fatiaki Jnr & Emily Kafoa

Defendants
Counsel : Mr Peter Knight for the plaintiff

Mr Devanesh Sharma for the defendants

Date of hearing : 23^rd March,2015
Date of judgment:30^th September, 2016

Ruling

1. The defendants have filed summons for stay of execution of my judgment of 20^th July,2015, and that the plaintiff and its agents be restrained from selling or seeking possession of the defendant’s two properties CL3306 and CL248965 until determination of the appeal.
   
2. The first defendant in his affidavit in support of the summons states as follows;
   1. AP Patel Ltd had made borrowings from the plaintiff’s predecessor National Bank of Fiji.The defendants were directors and stakeholders of AP Patel Ltd.
   2. National Bank of Fiji took two third party mortgages over CL 3306, a residential property in the name of the second defendant and CL No.248965, a lease over a property in Vuda in the first defendants’ name.
   100. A P Patel Ltd was wound up by an Order of Court. The plaintiff filed proof of debt with the Official Receiver.
   4. When a company files a proof of debt for its total debt and fails to declare any securities in the Proof of Debt Form, it is deemed to have surrendered its securities.
   5. The Court had no good reason to go behind the clear and unambiguous provisions of the Companies Winding Up Rules and hold that Rules 85 and 129 of the Companies Winding Up Rules and the Proof of Debt should not be construed literally relying on an Australian case.
   6. On 5^th December, 2015, the plaintiff advertised their leases for mortgagee sale.
   7. In conclusion, the first and defendants plead that they are a retired couple and have no other place to stay. If the stay is not granted, the appeal will be rendered nugatory. Their properties would be sold and the damage would be irreparable.
      
3. The proposed grounds of appeal attached to the second defendant’s affidavit read:
   1. That the Learned Judge erred in fact and in law in holding that the witnessing of the Deed of Guarantee (“Deed/”Guarantee Deed”)was not necessary under Section 59 of the Indemnity, Guarantee and Bailment Act, Cap 232 provides that, “no action be brought to charge a Defendant upon any special promise to answer for the debt of another person” unless the agreement sued upon is in writing and “signed by the party to be charged therewith” (emphasis added).
      • (a) The Appellants pertinent point of appeal is that: the Deed was not witnessed and therefore this is a crucial part of the Deed. The Appellants submit further that although Mr Shazran Lateef had certified that he explained the Guarantee Deed, the witnessing part was left incomplete by Mr Lateef and therefore in principle he did not witness the signatures of the Appellants. What is at issue is the purpose of having a legal document such as a Guarantee Deed with a witnessing section in place, if that is not properly and completely carried out? The Appellants therefore submit that the learned Judge erred in fact and law.
      • (b) Furthermore, the Appellants do not deny that they signed the Deed of Guarantee of 18^th March 1993, they raise pertinent defences particularly:-
        1. Whether the Guarantee is valid and enforceable because it was not properly witnessed as a Deed?
        2. Whether the Respondent can rely on the Deed of Guarantee in light of the fact that there was no evidence before the Honourable Court which showed the Deed of Guarantee was assigned to the Respondent from National Bank of Fiji?
        3. Whether the Respondent in obtaining a Winding Up order against A P Patel Limited (then owned by the Appellants) and by filing a Proof of Debt for the full amount of debt had given up its rights to any securities (including Guarantees) that it may have held against loans made to A P Patel Limited?
           

2. That the Learned Judge erred in law and in fact in holding that under Clause 20 of the Deed of Guarantee it allowed for the guarantee to be assigned but the Appellants submit there had to be evidence of such an assignment.
   1. There was no Deed of Assignment adduced in evidence by PW1 (Bogi Basilio) nor was he able to properly adduce in oral evidence at the High Court trial any relevant NBF acts/legislation, let alone sections that the Respondent was relying upon to substantiate its ability to recover debts and carry out assignments.
   2. This was very relevant to the trial proper however PW1 failed to give any proper evidence of the assignment issue in Court then and the Appellants say the High Court recording of the trial will confirm this.
   100. The Learned Judge made reference to these on his own accord and not through any valid oral evidence from PW1 as he was unable to properly give evidence of the relevant NBF Acts and rules applicable. The issue is how could the learned Judge act on such statements that were of no significance?
   4. That is was not an agreed fact that the Guarantee had been assigned to the Respondent.
   5. The Appellants submit in support of the ground of appeal that the fundamental position for assignments of securities is that in law an assignment is permissible but to be effective or valid, such assignment must be properly endorsed on the security document, there has to be a Deed of

Assignment document drawn and executed or other similar document there has to be an acknowledgment from the Guarantors that they accept such assignment of their personal guarantees to another party. The Respondent has never been able to prove that the Deed of Guarantee was assigned to it and therefore the Appellants say it was null and void.

3. That the Learned Judge erred in law and in fact by stating that there was no need for the Respondent to declare its securities on the Proof of Debt it had filed with the Official Receivers Office on 2^nd April 2004.
   1. The Appellants say to the contrary that this was a necessary rule as set out under Section 345 Companies (Winding Up) Rules. In a winding up of a company, all creditors are required to prove their debts.
   2. Rules 81, 82 and 83 are relevant in this matter.
      
   100. Rule 81 states that in a winding-up by the court, every creditor shall, subject as hereinafter provided, prove his debt, unless a judge in any particular winding-up gives directions that any creditors or class of creditors shall be admitted without proof.
   4. No such directions were given to the Respondent when it filed its Proof of Debt on 2^nd April 2004.
   5. In addition, once a company is wound up, it is a statutory requirement for each creditor to file a Proof of Debt declaring their securities and the values in the Proof of Debt filed.
   6. The Respondent failed to declare its securities in the Proof of Debt filed and neither did the Respondent file the full amount of the debt owing without making any deduction for the value of their security. This fact was never challenged by PW1 and PW2 and both Respondent witnesses failed to validate their answers to these core questions.
      1. Why didn’t NBF not declare its securities in the Proof of Debt?
      2. Why weren’t the full amount NBF was claiming against the Appellants not stated in the Proof of Debt? And
      3. If they had not declared the Personal Guarantee of the Appellants in the Proof of Debt, the Respondent ought to acknowledge that principally, its non-declaration of that Personal Guarantee meant it had forfeited its right to claim against the Appellants

once the principal debtor (A P Patel Limited) had been wound up?

7. Further, the Appellants rely on Rule 85 (Statement of Security), that the Respondent failed to fulfil the legal requirement under this rule i.e. for a creditor to state its security in the Proof of Debt i.e. “an affidavit proving a debt shall state whether the creditor is or is not a secured creditor.” In part (h) of the Proof of Debt, a creditor is required to state the particulars of all securities it holds. If the securities are over property, then the creditor is supposed to assess the value of the property. The Respondent’s Proof of Debt did not specify any security at all; and the Appellants’ say the Respondent by not specifying anything took the position that it was an ‘unsecured’ creditor. The
   

Appellants’ say that the Respondent breached Rule 85 as it did not state that it was a secured creditor, and therefore the consequences of not declaring what type of creditor it was, was that it was an unsecured creditor.

4. That the Learned Judge erred in fact and in law in stating in his Judgment that Rules 85 and 129 of the Proof of debt form should be construed literally.
   1. It is the Appellants’ appeal point that the Rules of Company winding ups have been established to ensure that these are followed by all secured creditors. It is submitted by the Appellants that ‘ignorance of the law’ is no excuse and similarly in this case, ignorance of the Rules of winding up is no justification. Such Rules are there to be followed.
   2. Additionally, the lack of declaration in the Proof of Debt by the Respondent is conclusive that the Respondent has surrendered its security position.
   100. The fact remains that the Respondent’s non –declaration of securities, including stating the full debt amount, and the amount of security debt reduced, in the Appellants’ opinion is a true factual statement that the Respondent’s Proof of Debt was flawed-null and void; and there was no way the Respondent complied with the Rules of Winding Up under the Companies Act.
   4. The Appellant’s seek recourse on this and therefore maintain and submit the learned Judged severely erred in law and in fact in his judgment in not correctly interpreting and applying the Rules of company winding up as they dictate. Furthermore, the Appellants submit that the Respondent’s flawed Proof of Debt is a true statement in itself that the Respondent failed to comply with the Rules of winding up

and therefore the Court cannot rely on the flawed Proof of Debt.

5. That the Learned Judge erred in law and in fact in stating under paragraph e of his Judgment (on page 6) that: “Turning to the case before me, I do not find any evidence to suggest that a conscious decision was taken by the plaintiff (the Respondent), to surrender its rights under the Guarantee.” The Appellants submit that the Judge’s statement made in that paragraph is unfair to say the least and flawed.
   
   1. The Respondent’s Proof of Debt filed was flawed, null and void given it had not declared all its securities, including stating the full debt amount, and the amount of security debt reduced. By not declaring this in the Proof of Debt, the Respondent had not bothered let alone made a conscious decision to ensure that these Rules were duly complied with. The conscious decision making of the Respondent, the Appellants submit is what any secured creditor ought to ensure is done from the onset up until the end of its debt recovery process. The failure of the Respondent in properly declaring its securities, including stating the full debt amount, and the amount of security debt reduced remains the pertinent issues which the Respondent cannot refute based on facts of the case.
   2. The Respondent failed to comply with the rules of filing its Proof of Debt and that significant fact cannot be denied by the Respondent; and the flawed Proof of Debt of the Respondent was tendered in court.
   100. Even though the Respondent said it sold securities of the Appellants, the Proof of Debt it filed do not declare what was sold and was reduced from the total debt it should have also declared on the Proof of Debt.
6. That the Learned Judge erred overall in law and in fact in its Judgment of 20 July 2015 in that the Judgment relied totally on an Australian authority when in fact the Judge should have applied the clear words of the Companies (Winding Up) Rules.
7. The Learned Judge erred overall in his Judgment in that the true pertinent facts of law were not properly scrutinised by the learned Judge, and therefore the Appellants maintain that the Learned Judge erred significantly in law and in fact on his Judgment which ought to be dismissed entirely with costs.
   

The determination

The backdrop

4. The plaintiff had filed action against the defendants to recover the sums of money it had loaned to A.P.Patel Ltd, and in respect of which the defendants had provided as security, a guarantee to the National Bank of Fiji. A.P.Patel Ltd had defaulted in repaying the loan. I held that the defendants are liable under the Deed of Guarantee to pay the plaintiff a sum of $625,180.93, together with compound interest at 10 % per annum.
   
5. The law on stay pending appeal was stated by His Lordship Chief Justice Gates in Native Land Trust Board v Shanti Lal,[CBV0009.11, January,2012] as follows:

The court considering a stay should take into account the following questions. They were the principles set out by the Court of Appeal and approved subsequently and applied frequently in this court. They were summarised in Natural Waters of Viti Ltd v Crystal Clear Mineral Water (Fiji) Ltd,Civil Appeal ABU0011.04S 18^th March 2005. They are:

(a) Whether, if no stay is granted, the applicant’s right of appeal will be rendered nugatory (this is not determinative). See Phillip Morris (NZ) Ltd v Liggett & Myers Tobacco Co (NZ) Ltd [ 1977] 2 NZLR 41 (CA).
(b) Whether the successful party will be injuriously affected by the stay.
(c) The bona fides of the applicants as to the prosecution of the appeal.
(d) The effect on third parties.
(e) The novelty and importance of questions involved.
(f) The public interest in the proceeding.
(g) The overall balance of convenience and the status quo. (emphasis added)

6. The first test reiterates the general principle that the court must consider if no stay is granted, namely, whether the applicant’s appeal will be rendered nugatory, albeit this factor “is not determinative”. The second whether the successful party will be injuriously affected by the stay.
   
7. At the hearing, Mr Sharma, counsel for the defendants submitted that the appeal will be rendered nugatory, if the two properties belonging to the defendants are sold. The plaintiff has advertised the properties for sale. On the other hand, there will be no prejudice cause to the plaintiff, if the stay is granted. The plaintiff will not be denied the fruits of the litigation, except for the delay caused by the appeal. Mr Sharma commented that the plaintiff took 13 years to commence legal proceedings.
   
8. The riposte of Mr Knight counsel for the plaintiff was that the appeal would not be rendered nugatory, as the defendants can claims damages from the plaintiff if the appeal were to be successful.
   
9. In Reddy’s Enterprises Ltd v The Governor of the Reserve Bank of Fiji, (1991) 37 FLR 73 as cited by Mr Knight, Tikaram RJA at pg 88 said :

The rule is that the court “does not make a practice of depriving a successful litigant of the fruits of litigation and locking up funds to which prima face he is entitled” pending appeal.(The Annot Lyle [1886] UKLawRpPro 31; (1886) 11 PD 114,116, CA;Monk v. Bertram, [1891] UKLawRpKQB 15; (1891) 1 QB 346)

10. Pathik J stated in Eyre v Estate Management Services Ltd, [1997] FJHC 234 stated :

Examples of situations where appeal could be rendered nugatory is stated by DAWSON J in THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA AND THE MYER EMPORIUM LIMITED [1986] HCA 13; (1986) 160 CLR 220 at p.223 as follows:

Generally that will occur when, because of the respondent's financial state, there is no reasonable prospect of recovering moneys paid pursuant to the judgment at first instance.(emphasis added)

11. In my view, the plaintiff will suffer considerable loss of funds, if the stay is granted. I agree with Mr Knight that the appeal would not be rendered nugatory, as the plaintiff is in a position to pay damages, in the event the appeal is decided in favour of the defendants.
    
12. The defendants, in their summons have sought to restrain the defendants from selling or seeking possession of CL 3306 and CL 248965. Mr Knight informed Court that the plaintiff had no objection to the stay being granted in respect over CL 3306, the residential property.
    
13. I am satisfied on the bona fides of the defendants in prosecuting the appeal.
    
14. I will consider the next argument advanced by Mr Sharma that the consequences of the failure of the plaintiff to fill the column in the Proof of Debts form raises a novel question of law and is an issue of public interest, in my consideration of the third, fourth, fifth and sixth grounds of appeal.
    
15. The FCA in AG and Minister of Health v Loraine Die (Misc. No 13 of 2010 ) stated:

The most important consideration in respect of whether a stay of execution should be granted is whether there are strong grounds of the proposed appeal:.. That hurdle is higher than that of chances of success. (emphasis added)

16. I turn to the proposed grounds of appeal.
    
17. The first ground of appeal takes issue that the Deed of Guarantee was not witnessed. In my view, there is no necessity for a Deed of Guarantee to be witnessed as the Deed was admittedly, signed by the defendants and moreso, the nature, meaning and effect of the Deed had been explained to the defendants by a solicitor.
    
18. The second ground together with the first ground urge that there was no evidence that the Deed of Guarantee was assigned by the National Bank of Fiji to the plaintiff .
    
19. On a consideration of the relevant provisions of the National Bank of Fiji Restructuring Act,1996 and the Deed of Guarantee , I reached the conclusion that the Deed was assigned to the plaintiff by the National Bank of Fiji. PW2,(Mr Trevor Seeto) testified that all the assets and liabilities of the National Bank of Fiji vested in the plaintiff by law.
    
20. The third, fourth, fifth and sixth grounds overlap and take issue with my finding that there was no strict requirement for the plaintiff to declare its securities on the Proof of Debt form filed with the Official Receivers’ Office, when the Companies (Winding Up) Rules requires all creditors are required to prove their debts. It is argued that I placed reliance on an Australian authority and came to an unfair and flawed finding that a conscious decision was not taken by the plaintiff to surrender its rights under the Guarantee.
    
21. The defendants place great force on the failure of the plaintiff to fill the column in the Proof of debt form. But that essentially relates to the debt due from the wound up company, A.P. Patel Limited. The guarantee has been provided by the defendants.
    
22. I held that the Winding Up Rules and the Proof of debt form should not be construed literally. I found that the surrounding circumstances before and after lodgement of the proof of debt clearly did not indicate an intention on the part of the plaintiff, to surrender the “continuing guarantee”, as provided in clause 1 of the Guarantee.
    
23. The Australian authority I relied was of persuasive value. The judgment of the Supreme Court of NSW in Porter v Computer Based Technology Pty Ltd, [2004] NSWSC 476 held that there must be a conscious decision to surrender a security, proof of lodgement of debt is by itself inadequate. It is not to be supposed that secured creditors will give up their securities without good reason.
    
24. In my view, the contentions in the third, fourth, fifth and sixth grounds of appeal are unconvincing and do not raise novel questions of law nor matters of public interest.
    
25. In my judgment, the grounds of appeal do not have strong prospects of success.
    
26. Halsbury’s Laws of England ,Vol 17, (4^th Ed) at para 455 :

The court has an absolute and unfettered discretion as to the granting or refusing of a stay, and as to the terms upon which it will grant it, and will, as a rule, only grant a stay..if there are special circumstances, which must be deposed to an affidavit unless the application is made at the hearing.(footnotes omitted)

27. I do not find any special or exceptional circumstances in this case for the grant of the stay.
    
28. Finally, I consider the balance of convenience test.
    
29. In Reddy’s Enterprises Ltd v The Governor of the Reserve Bank of Fiji,(supra) Tikaram RJA said :

The test here is a determination of which the two parties will suffer greater harm from granting or refusal of an interim stay pending a determination of the appeal on merits. A balance of conflicting considerations is required, between the underlying principle that a litigant is entitled to the fruits of his judgment forthwith and the obvious injustice in refusing a stay where such a refusal ill render the appeal nugatory or substantially nugatory.

30. Mr Sharma stated that the plaintiff, in the affidavit in opposition filed on its behalf has not controverted the affidavit of the first defendant on the aspect of the balance of convenience.
    
31. In my view, the question of the balance of convenience factor is matter for submissions. Mr Knight did not rely on a statement of fact, in that regard.
    
32. I have outlined above the loss or prejudice each party alleges it would suffer. I conclude that the overall balance of convenience is in favour of refusing the stay.
    
33. In the exercise of my discretion, I decline the application to stay execution of my judgment.
    
34. The application to stay the sale of CL248965 is declined. By consent, the plaintiff is restrained from selling CL 3306, until the final determination of the appeal.
    
35. Orders
    1. The application to stay execution of my judgment of 20^th July,2015, is declined.
    2. The application to stay the sale of CL248965 is declined.
    100. The plaintiff is restrained from selling CL 3306, until the final determination of the appeal.
    4. The defendants shall pay the plaintiff costs summarily assessed in a sum of $ 1000.
       

A.L.B. Brito-Mutunayagam
JUDGE

30^th September, 2016