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Sindhu v Lateef [2023] FJHC 103; HBC17.2023 (2 March 2023)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

Civil Action No. HBC 17 of 2023

BETWEEN

SHARANJIT KAUR SINDHU also known as SHARAN SINDHU also known as SHARAN LATEEF also known as SHARANJIT KAUR LATEEF of 19 Sheoak Street, Middle Park QLD 4074, Australia, Accountant, as Administratrix and Trustee of the Estate of REXINA SHIREEN LATEEF.

PLAINTIFF

AND

SHAZRAN ABDUL LATEEF also known as CAESAR LATEEF of Lot 5 Albert Lee Place, Suva, Legal Practitioner.

DEFENDANT

Counsel: Mr. R. Singh for the Plaintiff

Date of Hearing: 27^th February 2023

Date of Ruling: 02^nd March 2023

RULING

[1] The Plaintiff filed this ex parte Originating Summons to seek determination of the Court for the following,

1. The Defendant’s properties specified in schedule 1 of the application do stand charged with the payment of the judgment sums due from the Defendant to the Plaintiff as adjudged by the High Court in Civil Action No 222 of 2021 in the:
   • (a) Judgment dated 5^th January 2022 awarding the Plaintiff the following sums:
     1. US$ 448,255.35, AU$ 33,079.44 and FJ$ 1,026,789.60
     2. Interest pursuant to clause 4.3 of the Settlement Deed from 19^th September 2019 until the date on which the debt is repaid
     3. Costs on an indemnity basis
   • (b) Order dated 14^th September 2022 awarding the Plaintiff costs in the sum of FJ$ 1,000.
2. The Defendant attend court to show cause as to why the charge imposed in the preceding order should not be made absolute.
3. Costs of the application.
4. Any other orders Court deems just and fair.
   

[2] The Summons filed pursuant to section 32 of the High Court Act 1875, Order 50 of the High Court Rules 1988 and the inherent jurisdiction of the Court.

[3] In support of the application, Plaintiff filed an affidavit affirmed on 19^th January 2023. Plaintiff is the administratrix of the Estate of late Rexina Shireen Lateef. She was the sister of the Defendant and died testate on 10^th February 2016.

[4] The Defendant was the former executor and trustee of the Estate. He obtained the probate in April 2016. However he failed to administer the Estate according to the Will and used Estate’s money for his personal benefit. The amount was approximately FJ$2.6 million. Later he consented for an order removing him from the responsibilities and substituting the Plaintiff. Plaintiff states that in the said removal proceedings parties resolved it by having a Deed of Settlement dated 11^th September 2019.

[5] However repayments were not made by the Defendant as per the Deed of Settlement. On 01^st November 2021 the Plaintiff filed a Writ of Summons against the Defendant. The Defendant failed to file his Statement of Defence and a judgment was entered against the Defendant on 05^th January 2022. An application to set aside the judgment was filed and later dismissed by the Court.

[6] The Plaintiff avers that the judgment debt and the costs remain wholly unsatisfied by the Defendant. Plaintiff now seeks to enforce the recovery of the judgment sums, hence seeks to impose a charge on the following assets of the Defendant.

1. the land contained in Certificate of Title No.23458 being Lot 3 on the Deposited Plan No.57774 in the city of Suva in the island of Viti Levu having an area of 1032 square metres (Albert Lee Property)
2. one undivided half share in Certificate of Title No.7121 being Lot 7 on the Deposited Plan No.1482 in the city of Suva in the island of Viti Levu having an area of 27.3 perches (Denison road Property)
3. one undivided half share in State sublease No.606654 being Unit 1S on SLP 30, Denarau Island in the Tikina of Nadi in the province of Ba having an area of 87 square metres (Port Denarau Office)
4. two fully paid Class A ordinary shares in Rankam Holdings Pte Limited (company registration number 13734) (Rankam Shares)
   

[7] The jurisdiction of the Court to issue a charging order emanates under section 32 of the High Court Act 1875 and Order 50 rule 1 and 2 of the High Court Rules 1988. The effect of a charging order is to provide the Plaintiff with security, in whole or in part, over the property of the debtor. The property can be land or securities where judgment debtor has beneficial entitlement.

[8] The Court in issuing a charging order would follow a twofold approach. If the Court is satisfied on the evidence provided by the applicant of the charging order, then an interim order could be made and fix a hearing date to consider whether to make those interim orders final.

[9] From the affidavit evidence of the Plaintiff it is evident that the judgment debt and costs remain outstanding. It would be necessary for the Plaintiff to enforce recovery of the judgment sums in her capacity as the administratrix and trustee of the Estate.

[10] Plaintiff provides searches conducted at the Registrar of titles and the Registrar of companies to establish Defendant’s ownership to the four properties aforementioned.

[11] Having considered the evidence provided by the Plaintiff I am of the view that an interim charging order can be granted in the circumstances. Accordingly I make following orders.

ORDERS

1. An interim charging order placed on the properties below and valid till the determination of the show cause by the Defendant.
   
   1. the land contained in Certificate of Title No.23458 being Lot 3 on the Deposited Plan No.57774 in the city of Suva in the island of Viti Levu having an area of 1032 square metres (Albert Lee Property)
   2. one undivided half share in Certificate of Title No.7121 being Lot 7 on the Deposited Plan No.1482 in the city of Suva in the island of Viti Levu having an area of 27.3 perches (Denison road Property)
   100. one undivided half share in State sublease No.606654 being Unit 1S on SLP 30, Denarau Island in the Tikina of Nadi in the province of Ba having an area of 87 square metres (Port Denarau Office)
   4. two fully paid Class A ordinary shares in Rankam Holdings Pte Limited (company registration number 13734) (Rankam Shares)
      
2. The Defendant to attend court on 24^th March 2023 to show cause as to why the interim charging order should not be made absolute.
3. Plaintiff to attend to the service of the orders as per the rules of the court.

Yohan Liyanage

JUDGE

At Suva on 02^nd March 2023