Home Finance Company PTE Limited v Tabua Bakery (Fiji) PTE Limited

• Jurisdiction: Fiji
• Judgment Date: 07 November 2022
• Neutral Citation: [2022] FJHC 713
• Counsel: Mr N. Lajendra for the appellant,Mr K. Ratule for the first respondent,Mr A. Namua for the second respondent,Mr S. Kant for the third respondent
• Docket Number: Civil Action No. HBC 44 of 2021
• Date: 07 November 2022
• Court: High Court (Fiji)
• Year: 2022

In the High Court of Fiji

At Labasa

Civil Jurisdiction

Civil Action No. HBC 44 of 2021

Home Finance Company PTE Limited

Appellant

v.

Tabua Bakery (Fiji) PTE Limited

First respondent

Tower Insurance (Fiji) PTE Limited

Second respondent

Registrar of Titles

Third respondent

Date of hearing: 19^th October,2022

Date of Judgment: 7^th November,2022

Counsel:

Mr N. Lajendra for the appellant

Mr K. Ratule for the first respondent

Mr A. Namua for the second respondent

Mr S. Kant for the third respondent

Judgment

1. The appellant appeals a Ruling of the Acting Master of 4 April, 2022.

2. The appellant had provided the first respondent with loan facilities against several securities, including a first registered mortgage over Crown Lease No. 3460, Lots 10 and 11 section 14 Labasa Township (property).

3. The first respondent moved to restrain the appellant from disposing and advertising the property for mortgage sale. On 4 April, 2022, the Acting Master extended the interim injunction granted ex parte till 6th June,2022, to allow the first respondent an opportunity to pay the arrears of $212,700.49, “in default the interlocutory injunction is dissolved forthwith”. The Acting Master held that there is no serious question to be tried and concluded that the first respondent can be adequately compensated by damages.

4. Mr Lajendra, counsel for the appellant argued that the Order is contrary to the principles laid down in the American Cynamid, in that the Acting Master failed to discharge the interim injunction, when he found that there is no serious question to be tried and held the first respondent could be adequately compensated in damages. The Acting Master erred in allowing the first respondent to clear the arrears only in a sum of $212,700.49, when the entire loan account is on demand. The Order was also contrary to the decision in Inglis v Commonwealth Trading Bank of Australia, (1972) 126 CLR 161, which required the first respondent to pay the full amount into Court.

5. Mr Ratule, counsel for the first respondent agreed with the submissions of Mr Lajendra, but stated that his instructions were to oppose the appeal and seek that the interim injunction continue as the first respondent has paid the sum of $212,700.49 into Court.

6. Mr Namua, counsel for the second respondent and Mr Kant, counsel for the third respondent did not contest the appeal.

7. In my view, the application of the guiding principles laid down by Lord Diplock across the board to...