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IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction
ass=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> CIVIL ACTION NO. 0260 OF 1999
Between :
N-GB>
FIJI DEVELOPMENT BANK
Plaintiff
- and -
ISIRELI CAMA as the administ
of the Estate of Neori Toni
Defendant
Mr. D. Sharma for the Plaintiff
Mr. Robinson Prasad for the Defendant
ass=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> JUDGMENT
This is an application to sete a default judgment entered against the defendant administrator on 25th June June 1999.
The brief background to the case is that Neori Toni deceased) prior to his death on 27th Februaryruary 1998 had operated a taxi business with a number of taxis which he had purchased from loan monies advanced by the plaintiff bank and secured
by Bills of Sale.
The details of the loan account are unclear but, for presenposes, suffice it to say that at the date of the deceased’ssed’s death
a substantial sum in excess of $61,000 remained owing on the account and a demand notice and seizure or repossession notice dated 28th July 1998 (i.e. some 5 months after the date of death) were issued by the plaintiff bank in exercise of its rights under the Bills of Sale. Both notices appear on their face to have been personally acknowledged by the defendant who has not expressly denied receiving them
in his affidavit in reply.
ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> Be that as it may a fortnight before the notices were issued, the defendant (who is a brother of the deceased) obtained the grant
of Letters of Administration `well and faithfully to administer’ the estate of the deceased. In this regard Section 11 of the Succession Probate and Administration Act (Cap.60) provides (so far as relevant) that :
`The real as well as the personal estate ory deceased person shall be assets in the hands of the ... administrator, for the payment
oent of all duties and fees and of the debts of the deceased in the ordinary course of administration.’
Subsequently by letter dated 25th January 1999 (i.e. almost a year after tte of death) the plaintiff tiff bank wrote to the defendant requesting payment of the monthly installment
on the deceased’s loan account or `a firm arrangement on how you intend to service the debt’. Nothing appears to have eventuated and on 31st March 1999 a similar letter was sent by the plaintiff bank’s solicitors requesting `immediate arrangements for the payment of the (the deceased) debt failing which, we are to proceed with legal action against you for the recovery of the same’. The defendant however denies ever receiving both letters which were addressed to his place of employment, or being aware of their
existence, yet, they both imply that the defendant was aware that the deceased’s account with the bank remained operational in spite
of his death.
Finally on 25th May 1999 a Writ of Summons was issued against the defendanadministrator of the deceaseceased’s estate, claiming the sum of $65,931.76 being the outstanding debt then owing on the deceased’s loan account. The Writ was personally served on the defendant on 8th June 1999 and on 25th June in default of any acknowledgement, judgment was entered against the defendant.
I digress to point out that the default judgment as sealed was not in the ordinary or accepted form for a judgment against an executor
or administrator and might on that score be considered irregular albeit that no issue has been raised in that regard. [see : the form of judgment in Batchelar v. Evans (1939) 3 ALL E.R. 606 at 607].
On 14th October 1999 Writ of Fifa was issued in execution of the default judgment and on 12th sup> November 1999 (i.e. 6 months after judgment had been sealed) the defendant’s solicitors issued the present Summons seeking a stay of execution, the setting aside of the default judgment, and leave to file a Statement of Defence. There can be no doubt that the defendant has been exceedingly tardy in this application which appears to have been prompted by the
Fifa.
There are before the Court three (3)
(1) &nnbsp;;&nspp;&nsp; &nsp; &&nbp;; ehe defendant’s pris primary affidavit in support of the Summons dated 10th November 1999. 1">
(2) &nbssp;&nnbsp; &nbbsp; &nbp; &nbp; Manager Legald d up>th> Feb 2000in opposition ; and
(3) &nbssp; &nbssp; &nbp; Than>The defendantfs affidavit in reply dated 13th March 2000;
The pries that guide a court in the exercise of its unfettered discretion on an application such auch as the present is clearly set
out in the following passages in FNPF v. Shiri Datt (1988) 34 F.L.R. 67, 69 which reads :
`The discretion is prescribed in wide terms limited only by the ju of the case and although various `rules’ or `tests’ have bave been
formulated as prudent considerations in the determination of the justice of the case, none have been or can be elevated to the status
of a rule of law or condition precedent to the exercise of the courts unfettered discretion.
These judicially recognised `tests’ may be conveniently listed as follows :
(a) &nbbsp;& p;&bsp; &bsp; &&nbp;;&bsp; &nb/p; Whether the dthe defendant has a substantial ground of ce toaction ;
(b) ;&nbssp; &bsp; &nbbp;
(c) p; &nnsp;&&nsp; &nbp; &nbbs;&nnbsp; Wpan>Whether the plaintiff will suffer irreparable harm if the judgment is set aside.
>
In this latter regard in my view it is p is proper for the court to consider any delay on the defendant’s part in seeking to set aside
the default judgment and how far the plaintiff has gone in the execution of its summary judgment and whether or not the same has
been stayed.’
As to (a) above the defendant deposed in his primary affidavit at para.6 :
`I did not enter an acknowledgement of service andntention to contest the claim herein because I did not know that I had to do this
in order rder to defend the claim. Further I was in financial difficulty (and) I verily believed that I would be served with another
Summons wherein I would be notified of the date when to attend Court.’
/b>
In short, the defendant pleads ignorance and impecuniosity, but given the very clear wording and warnings on the face of the Writ of Summons, ignorance of the law is no excuse. Furthermore given the defendant’s professional occupation, taxi business, and the fact that he
had previously consulted solicitors in order to obtain the Letters of Administration to which he would have been required to enter into a bond `penalty equal to the gross amount under which the property of the deceased is sworn’ (See : Sections 20 and 21 of the Probate Succession and Administration Act), his claims to ignorance and impecuniosity are, in my considered view, extremely doubtful.
As for the value and assets of the deceased’s estate efendant deposed in para.14 of his primary affidavitdavit :
`That at the time the Letters of Administration were granted in this matter, the gross value of the estate o deceased amounted to
$100,$100,000 and the said estate included the deceased’s residential property comprised in Native Lease No. 21648 situated at Lot
35 Naveiwakau Subdivision, Valelevu Nasinu and 4 taxis ...’
Additionally, in the Oath of Administrator fin support of the grant of administration, the defendant dept deposed `that the net value of the deceased’s estate at the date of his death amounts to $65,000.00'.
As for (b) above, the defendant deposes to having `a valid defence’ which `raises triable issues and issues of law which requires a determination by the Court’. There is also annexed to the affidavit a Proposed Statement of Defence in which the defendant denies any knowledge of the status or operation of the deceased’s loan account with the plaintiff bank or
being served with any demand or repossession notices relative to such account and para.11 avers :
`The defendant has fully adminid all the Estate and effects of the said Neori Toni, deceased, which had ever come into hiso his hands
to be administered, and this defendant had not at the commencement of this action nor has he since had nor has he now any such estate
or effects.’
This is further confirmed in para.16 of the dant’s primary affidavit where he deposed:
`To the best of my knowledge and belief I have fully administered all the Estate and effects of the deceased, which had ever come
into my hands to be administered, and the estate does not have any assets left to be administered.’
The primary affidavit however does not pr any details (which would presumably be within the personal knowledge of the defendant as
a as administrator) of how ? or when ? `the deceased’s residential property ... and 4 taxis’ were disposed of or distributed but, it is clear from the annexed title document that, the `deceased’s residential property’ was eventually transferred to the defendant beneficially on 13th September 1999 (i.e. 2 months after the plaintiff bank’s Writ was served on him).
Furthermore Department of Road Transport records indicates that two (2) vehicles with registration Nos : CV 749 and BJ 354 which were previously owned by the deceased were transferred to the defendant in February and March 1999 respectively. The defendant however, strongly disputes the ownership of these vehicles in his affidavit in reply, but still, no mention
is made as to what became of the `4 taxi’s’ which the defendant accepts formed part of the deceased’s estate which in the defendant’s own words has been `fully administered’.
Based on the above, counsel for the plaintiff bank forcefully argues that `efendant has benefited greatly from the estate in getting aing all the estate assets in his (personal) name’ and all this, counsel stresses, occurred after the defendant had received the plaintiff bank’s demand and repossession notices.
In so far as the defe pleads that he has fully administered the deceased’s estate (`plene administravit’) the law is clearly set out in Vo.17 of Halsbury’s Laws of England (4th edn) at para. 1580 which reads:
`A person sued as personal representative n general plead in answer to an action brought against him in his representative capacity
aity any defence which would have been open to the deceased. He may further rely upon the defences ... (2) that he has fully administered
(plene administravit) or fully administered with the exception of certain assets (plene administravit praeter) ; (3) the existence
of debts of a higher nature and no assets ultra ; (4) the right to set off a debt ; and (5) the expiry of the appropriate period
of limitation.
If the defence of plene administra.. is pleaded the burden of proving assets rests upon the plaintiff, and the personal reprerepresentative
is only answerable to the amount of assets proved.’
/b>
Of particular relevance however to the present case is para.1584 which provides :
ass=MsoNormal stal style="text-align: justify; margin: 1 36.0pt"> `If the personal representative allows judgment to go against him by de, ..., he admits the claim and that he has sufficient assetassets
to satisfy the claim.’
This latter legal principle is of ancient pedigree as was said by l Ch.J. in Leonard v. Simpson (1835) 435) 42 RR 576, speaking of the effect of a default judgment being entered against an executor, at p.579 :
`The judgment by default ... is conclusive upon the defendant, that he has assets to satisfy the judgment. This is so tghly settled
in the case ofse of Rock v. Leighton [1795] EngR 2985; (1700) 1 Salk 310 and in other cases which had preceded it, that it was admitted to be the law by the defendant’s counsel.
The fact therefore is conclusively established against the defendant, that he has assets of the testan his hands : and
the only question which remains is, what evidence is necessary to show that he has wasted those assets (`de>(`devistavit’).
In reason and good sense, very little evidence ought to be necessary for that purpose. It is his duty when called uponotice, or by
a writ of exef execution, either to satisfy the debt of the testator, or to shew the assets to the sheriff that he may make the debt
out of them ; and accordingly, very slender evidence has at all times been held to be sufficient to prove the devastavit.’
In the present case given the documentary annexures and the averments in the proposed Statement of Defence reinforced by the defendant’s sworn deposition that no assets of the deceased’s estate remains, there arises a rebuttable presumption
in law that he has committed `devastavit’ (per Evershed M.R. in Marsden v. Regan (1954) 1 W.L.R. 423 at 429).
In this latter regard Halsburys (op.cit) at para. 1591 states :
`On an admission of assets an immediate personal judgment may be made against the representative, whether taim is by a creditor ...
an.. and even though the creditor sues on behalf of himself and all other creditors, for insofar as the representative has no assets
to meet the claim a rebuttable presumption that he has committed a devistavit arises.’
For the foregoing reasons I am not satisfhat the defendant has an arguable defence to the plaintiff’s claim and the application is
a is accordingly dismissed with costs which are summarily fixed at $250.00.
D.V. Fatiaki
JUDGE
At Suva,
7th March, 2001.
HBC0260J.99S
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