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BSP Finance (Fiji) Ltd v Raymund Caezar Gepte Angco (trading as Grace Infinity Enterprise) [2023] FJHC 732; HBC279.2022 (26 September 2023)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA
CIVIL JURISDICTION


CIVIL ACTION NO. HBC 279 OF 2022


BETWEEN : BSP FINANCE (FIJI) LIMITED a company incorporated in Papua New Guinea and registered in Fiji, having its registered office at Level 12, BSP Suva Central Building Corner of Renwick Road and Pratt Street, Suva.

PLAINTIFF


AND : RAYMUND CAEZAR GEPTE ANGCO of Martintar, Nadi, trading as GRACE INFINITY ENTERPRISE situated at Ship 1, Ramscorp Building, Martintar, Nadi in the Republic of Fiji.

DEFENDANT


BEFORE : Hon. Mr. Justice Mohamed Mackie


APPEARANCES : Ms. A. Goundar O/I
Mr. Lagonilakeba. V. O/I


HEARING : By Way of written Submissions.


WRITTEN SUBMISSION: By the Plaintiff filed on 23rd August 2023. By the Defendant filed on 27th July 2023.


DATE OF RULING : 26th September 2023.


RULING


  1. By the Ex-parte Notice of Motion filed on 14th October 2022 and supported on 18th October 2022, the Plaintiff sought the following orders;
    1. That the Defendant by itself or by its servants , agents and/or associates howsoever be restrained from in any manner interfering with the Plaintiff’s right of seizure and repossession of one Jac Canopy Truck Registration No; KB 453 Engine No. 78648598 and Chassis No. LJ11RVCE4J8011953.
    2. That the Defendant by itself or by its servants, agents and/ or associates or howsoever immediately release and deliver to the Plaintiff one Jac Canopy Truck Registration No; KB 453 Engine No. 78648598 and Chassis No. LJ11RVCE4J8011953.
    3. That the Defendant by itself and/or through its servants and/ or agents and/ or otherwise howsoever be restrained from transferring, dealing with, charging, mortgaging, assigning, disposing off, or removing from the jurisdiction one Jac Canopy Truck Registration No; KB 453 Engine No. 78648598 and Chassis No. LJ11RVCE4J8011953, over which the Defendant, has ownership or control within the jurisdiction
    4. That the Defendant pay all costs and/or charges associated with the conveying of the chattel to Suva.
    5. That the Plaintiff be at liberty to engage and enlist the services of a Police Officer and/ or a bailiff in the execution of this Order.
    6. Costs of this application to be paid by the Defendant.
    7. Such further relief/Order as this Honorable Court may deem fit and expedient.
  2. The Ex-parte Notice of Motion is supported by the Affidavit of SHAINESH LAL, the area Manager (West) of the Plaintiff Company , sworn and filed on 14th October 2022 along with annexures marked as “”SL-1” to “SL-8” .
  3. The Plaintiff had also relied on an Affidavit sworn by RAVIKESH REDDY, the registered Bailiff, filed along with annexures such as the Demand Notice dated 27th January 2021, and three (3) Repossession Notices dated 18th February 2021, 6th September 2021 and 2nd June 2022.
  4. In addition to the above mentioned interim reliefs, the Plaintiff in its Statement of Claim had also sought for substantial reliefs as per paragraphs (f), (g), (h), (i), (J) and (k) thereof, which included a prayer for Judgment in a sum of $107,543.36, interest at the rate of 7%, Charges in relation to the bill of sale, further interest and the costs of the action.
  5. The Ex-parte Notice of Motion being supported before me on 18th October 2022, after hearing the learned Counsel for the Plaintiff and perusal of the record, this Court granted only the relief (iii ) restarting the Defendant from transferring, dealing with, charging, mortgaging, disposing off or removing from the jurisdiction the subject matter vehicle.
  6. While granting the temporary injunctive order as aforesaid, the Court specifically stated in its Order 2 that the Orders ( I )and (ii ) in the Ex-parte Notice of Motion will be considered on the next date ( ie. That those reliefs will be considered Inter-partes)
  7. The Defendant filed his Statement of Defence on 23rd December 2022 and the Affidavit in opposition on 30th May 2023 sans any documents annexed thereto. No reply Affidavit was filed by the Plaintiff. When the matter came up for hearing on 24th July 2023, both the Council agreed to have the hearing disposed by way of written submissions, instead of the oral hearing. Accordingly, the Defendant and the Plaintiff have filed their respective written submissions on 27th July 2023 and 23rd August 2023 respectively.
  8. Learned Counsel for the Plaintiff in his written submissions, having drawn my attention to the averments in the Affidavit in support and opposition, has made submissions as to how the Plaintiff has become entitled to seize the Vehicle in question, whether the orders should be granted as prayed for in paragraphs (i) and (ii) of the prayer to the Notice of Motion. Counsel has also discussed on the principles of injunction and moved to issue the Orders as prayed for.
  9. Learned Counsel for the Defendant too in his written submissions, having discussed the principle of injunction, has mainly argued that the orders (i) and (ii) sought by the Plaintiff in the Notice of Motion are of a final nature and on the balance of convenience the Plaintiff does not stand to suffer any damages.
  10. It is to be noted that the sole purpose of granting the injunction Order (iii) initially, on a temporary and ex-parte basis, was to ensure the successful execution of the Orders (i) and (ii) , if granted, as prayed for, before the matter proceed for the trial. Counsel for the Defendant continued to argue that the Orders (i) and (ii) are final in nature, and such orders could be granted only at the end of the trial. From the orders sought in the Notice of Motion, it is clear that order (i) is sought to restrain the Defendant from interfering with the Plaintiff’s right to seize the vehicle. Then the pivotal question that arises is, whether the Plaintiff has the right to seize the vehicle, before the matter proceed for the substantial trial?
  11. In the much celebrated case of American Cyanamid Co. v Ethicon Ltd [1975] UKHL 1; [1975] 2 W.L.R. 316, [1975] A.C. 396 Lord Diplock laid down certain guidelines for the courts to consider in deciding whether to grant or refuse an interim injunction which are still regarded as the leading source of the law on interim injunctions. They are:
    1. Whether there is a serious question to be tried at the hearing of the substantive matter;
    2. Whether the party seeking an injunction will suffer irreparable harm if the injunction is denied, that is whether he could be adequately compensated by an award of damages as a result of the defendant continuing to do what was sought to be enjoined; and,
    3. In whose favour the balance of convenience lie if the injunction is granted or refused?
  12. Injunction is an equitable remedy granted at the discretion of the court. In American Cyanamid case (Supra) Lord Diplock laid down the aforesaid guidelines only to assist the court in exercising its discretionary power. These guidelines need not be considered as the substantive law of injunctions.
  13. Kerr LJ in Cambridge Nutrition Ltd v BBC [1990] 3 All ER 523 at 534 said:

“It is important to bear in mind that the American Cyanamid case contains no principle of universal application. The only such principle is the statutory power of the court to grant injunctions when it is just and convenient to do so. The American Cyanamid case is no more than a set of useful guidelines which apply in many cases. It must never be used as a rule of thumb, let alone as a straitjacket .... The American Cyanamid case provides an authoritative and most helpful approach to cases where the function of the court in relation to the grant or refusal of interim injunctions is to hold the balance as justly as possible in situations where the substantial issues between the parties can only be resolved by a trial”.


  1. Lord Diplock in his speech In American Cyanamid case also said;

“I would reiterate that, in addition to those to which I have referred, there may be many other special factors to be taken into consideration in the particular circumstances of individual cases”.


  1. The Defendant in paragraph 4 of his Affidavit in opposition, has admitted the averments in paragraphs 6,7,8,9 and 10 of the plaintiff’s Affidavit in support by SHAINESH Lal, the area Manager of the Plaintiff Company. Those admissions include, inter alia, the fact that the Defendant had applied for loan facility of $92,000.00 from the Plaintiff, the Plaintiff had issued the Letter of Offer dated 24th May 2019 in respect of that facility, the loan facility was granted by the Plaintiff on a Bill of Sale, that he had agreed to repay it with the interest, which was to be in total sum of $124, 200 in 60 monthly equal installments.
  2. In short, in his Affidavit in opposition, the Defendant has clearly admitted to have obtained the loan facility as aforesaid, and in paragraph 5 thereof has further admitted that his account has fallen into arrears.
  3. He also admits that he was served with the demand notice, however, after each notice was served, he was informed that the loan could be restructured due to adverse impact of Coved 19 lockdown and economic impact. But this contention is not supported by any evidence.
  4. Careful perusal of the Bill of Sale marked as “SL-2” clearly shows that the plaintiff has every right to repossess the mortgaged property. The Defendant was not unaware of this provision and he should have expected this predicament in the event he fails to pay the monthly installments.
  5. As per the Affidavit of Ravikesh Reddy, the Registered Bailiff, the Defendant has been served with Demand Notice dated 27th January, 2021, and two repossession notices dated 18th February, 2021 and 6th September 2021 . He is said to have refused to acknowledge the repossession notice dated 2nd June 2022, and was not willing to release the vehicle for repossession. Defendant in paragraph 6 of his Affidavit admitted that notices were served on him.
  6. When the bailiff went to the defendant’s premises on 7th June 2022 to take possession of the subject Vehicle, it had been there, and the Defendant has refused to release it demanding a Court order.
  7. The relevant offer letter, Bill of sale, Demand Notice, the Repossession Notices, the Deed of Collateralization and the Account statement are annexed to the Affidavit in support of SHAINESH LAL. The Bailiff, Ravikesh Reddy’s Affidavit also accompanies the Demand Notice and the Repossession Notices.
  8. The conditions applicable to the loan facility obtained are in Black & White as per the Offer Letter and the Bill of sale. The Defendant unreservedly agreed to the terms and conditions therein and bound himself thereto, and particularly agreed that the vehicle is subject to repossession in the event of default.
  9. In this case, the defendant has two options either to settle the loan or hand over the vehicle to the plaintiff company. His claim in paragraph 6 of his Affidavit in opposition that there was an agreement for the plaintiff not to repossess the vehicle till 15th March 2021 is unsubstantiated. However, the time has now passed. Further, his claim that an attempt by the Bailiff on 5th March 2021 to repossess the vehicle at the warehouse of “Pleass Global” has caused him loss is a matter that has to be gone into at the substantial trial.
  10. The learned counsel for the defendant in his submissions has mentioned that the defendant attempted to pay some money, but the plaintiff company refused to allow him to pay it. A statement of the learned counsel cannot be considered as evidence. If it was really what happened, the Defendant could have stated it in his Affidavit, but for reasons best known to him, he did not say anything about this in his Affidavit.
  11. When the Defendant has, admittedly, violated the terms of the Bill of Sale by not paying the loan installments, the Plaintiff, being the Creditor, should be able to take the repossession of the subject vehicle in terms of the Bill of Sales by following the due procedures and the Plaintiff has followed it.
  12. The act of repossession will not bring a finality to this matter, and may not satisfy the full claim made by the Plaintiff. The Defendant also alleges about certain losses, which if he wishes, may proceed with by way of a counter claim. The Plaintiff’s claim for order for cost and charges involved in conveying the vehicle also have to be gone into at the trial.
  13. The learned counsel for the defendant submitted that orders (i) and (ii) sought in the Notice of Motion, which also form part of the statement of claim, are final reliefs. However, these are not the only reliefs prayed for in the statement of claim as substantive reliefs. If the order for repossession is not granted, for which the Bill of Sale has made clear provision, the whole purpose of brining this action would be defeated due to the delay in concluding the substantive matter. The Defendant has subjected himself to the terms and conditions in the Bill of sale and does not dispute the plaintiff’s right to repossess, when he is in default.

Orders:


  1. The orders sought for by the Plaintiff in paragraphs (i) and (ii) of the prayers to the Notice of Motion are granted.
  2. The interim injunction order issued on 18th October 2022 as per paragraph (iii) of the prayer to the Notice of Motion is extended till the orders (i) and (ii) above are fully carried out.
  1. The Plaintiff is at liberty to obtain the services of a Police Officer and/ or Bailiff in the execution of the orders.
  1. The defendant is ordered to pay $1,500.00 unto the Plaintiff within 14 days, as summarily assessed costs of this Application.

A.M. Mohamed Mackie
Judge


At the High Court of Lautoka on this 26th day of September, 2023.


SOLICITORS:
For the Plaintiff: Messrs. Neel Shivam Lawyers- Barristers & Solicitors.
For the Defendant: Messrs. Legal Lines- Barristers & Solicitors.

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