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National MBF Finance (Fiji) Ltd v Chand [2001] FJHC 182; HBC3.1998 (24 April 2001)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. 3 OF 1998

Between:

NATIONAL MBF FINANCE (FIJI) LIMITED
Plaintiff

And:

AMI CHAND f/n Brij Lal

SURESH CHAND f/n Ami Chand
Defendants

Mr. V.P. Ram for the Plaintiff
Mr. M. Sadiq for the Defendants

DECISION

By Summons dated 19 February 2000 the plaintiff has applied to Court for orders, namely, that the Statement of Defence filed by the defendants be struck out and that judgment be entered against them in the sum of $25,819.00 under the provisions of Order 18 Rule 18 and Order 21 Rules 2 and 3 of the High Court Rules 1988.

An affidavit in support was filed to which the defendants replied on 18 March 1999. As ordered on 25 March 1999, written submissions were filed by both parties, the last of which was on 5 May 1999.

This file thereafter was not sent to High Court Registry in Suva from Labasa until 15 January 2001. It was placed before me on 23 January 2001. Hence the delay in considering the application.

The Plaintiff had filed a writ of summons on 16 January 1998 claiming the sum of $25,819.00 particulars whereof are stated in the Statement of Claim. Statement of Defence was filed on 23 April 1998 denying the claim in a number of respects and stating that there are triable issues. Then ten months afterwards the plaintiff filed the present summons.

Consideration of the summons

The Plaintiff’s counsel’s submission is to the effect that there is no defence to the action and that the defences raised have no merits. It says that there should therefore be summary judgment in its favour under Order 14. The defendants’ counsel on the other hand submits that they have a legitimate defence as stated in the Statement of Defence and in the Affidavit in Reply and that there are several triable issues which could only be decided upon trial. Mr. Sadiq asks that the summons be dismissed with costs as being without any merit.

Although the plaintiff says that the application is made under the Orders referred to hereabove, it is in effect an application for summary judgment under Order 14 of the High Court Rules.

This summons was issued a long time after the Statement of Defence had been filed. In that time the plaintiff could have taken steps to have the action entered for trial. For some reason it did not do so but instead applies for summary judgment.

Upon reading the affidavits filed herein and considering the submissions of counsel, I find that the defendants have raised a number of triable issues e.g. selling at much less than what the vehicle was worth and that excess interest has been charged. These could only be decided upon trial. In other words the defendants have an arguable defence.

As far as the law is concerned it is quite in order to apply under Order 14 even though Statement of Defence has been filed in this action and despite the delay in making the application. On ‘delay’ I refer to the following remarks of Jacob J. in Brinks Ltd v. Abu-Saleh and Others (No.1) (1995) 4 All E.R. 65 which I consider pertinent:

"What then is the rule as regards delay and Ord. 14? It is said that the Plaintiffs have delayed so much and the case is so close to trial, that I should regard the application as an abuse of process. Now it is true that normally Plaintiffs used Ord. 14 shortly after they commence proceedings, normally, but not always, before a defence is filed. But there is nothing in the rules precluding an application at a later stage in the proceedings. I do not see why delay, of itself, should be a relevant matter. If there is no ‘defence to the claim’ or the Defendant cannot show that there is an ‘issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim’ then delay can make a difference."

In this case Statement of Defence has been filed, but it has been held that in a proper case, a summons on summary judgment under Ord. 14 may be issued after the issue of summons for directions following the close of pleadings (Bath Press Ltd. v. Rose, The Times, July 13, 1987, C.A.).

The issue before the Court is whether on the pleadings the Plaintiff ought to be granted the orders sought.

In opposing the applications the defendants have, in my view and to my satisfaction shown cause through their Defence that the orders should not be made. There are triable issues and in these circumstances judgment cannot be entered against the defendants. In this context the following passages from the judgment in Powszechny Bank Zwiakowy W. Polsce v. Paros (1932) 2 K.B. 353 are worth noting:

Greer L.J. at p.359 said:

"It has long been the rule that in proceedings under Order XIV, what the Court, whether this Court or the King’s Bench division, has to ascertain is whether there is a triable issue. If there is, no matter how strongly the Court may anticipate that it will be decided in the plaintiff’s favour, it must order a trial."

He goes on to say that:

"All the defendant need say is that he requires the plaintiff to prove his case, and the law puts upon the plaintiff the onus of proving it. When the defendant says he does not admit the claim he need not carry the case any further than to say: ‘There is a triable issue and I want to have it tried’."

For further discussion on the application of Ord. 14, see my judgment in the case of Westpac Banking Corporation and Pritam Singh s/o Ujagar Singh (Labasa Civ. Action No. 9 of 1995 - Judgment 16 Jan., 1998).

In the exercise of my discretion on the evidence before me, for the above reasons and bearing in mind the purpose of Ord. 14 as stated in the following passage from the judgment of Parker L.J. in Home and Overseas Insurance Co. Ltd. v. Mentor Insurance Co. (UK) Ltd. (in Liq.) (1989) 3 All E.R. 74. I refuse the orders sought by the plaintiff:

"The purpose of Ord. 14 is to enable a plaintiff to obtain a quick judgment where there is plainly no defence to the claim. If the defendant’s only suggested defence is a point of law and the court can see at once that the point is misconceived the plaintiff is entitled to judgment. If at first sight the point appears to be arguable but with relatively short argument can be shown to be plainly unsustainable the plaintiff is also entitled to judgment. But Ord. 14 proceedings should not in my view be allowed to become a means for obtaining, in effect, an immediate trial of an action, which will be the case if the court lends itself to determining on Ord. 14 applications point of law which may take hours or even days and the citation of many authorities before the court is in a position to arrive at a final decision."

Because the action has moved at a snail’s pace, I order that the parties should without further undue delay proceed with due diligence to have the matter entered for trial.

The costs are to be costs in the cause.

D. Pathik
Judge

At Labasa
24 April 2001