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NBF Asset Management Bank v Muaror [2003] FJHC 8; Hbc0490d.1998s (2 May 2003)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 490 OF 1998S

Between:

NBF ASSET MANAGEMENT BANK
Plaintiff

and

KAFOA MUAROR
Defendant

Bale for the Plaintiff
Herman for the Defendant

DECISION

The writ was filed in September 1998. It sought repayment of a loan of $132,535.78 with interest accruing.

In November 1998 a Defence and Counterclaim were filed. The Defendant denied owing anything to the Bank and counterclaimed. The Defendant sought an account and also compensation and other remedial orders available under the provisions of Section 127 of the Fair Trading Decree 25/1992.

In February 2000 the Plaintiff filed a “Reply to Counterclaim” which was a bare denial of the Counterclaim.

In July 2000 the usual orders were made by the Deputy Registrar on a summons for directions issued by the Plaintiff. The Plaintiff did not comply with the Deputy Registrar’s order to file an affidavit verifying its list of document until very nearly two years later and after filing an Order 3 rule 5 notice of intention to proceed. The Defendant has still not complied with the Deputy Registrar’s order despite numerous requests by the Plaintiff. The Plaintiff now seeks orders that:

“(a) the Defendants statement of defence and counter claim filed on 23 November 1998 be struck out for want of prosecution” and

that judgment be entered against the Defendant in the sum claimed in the writ together with interest and costs.

In the supporting affidavit and a helpful written submission by Mr. Bale the Plaintiff stressed the delays which had occurred, the Defendant’s non response to the Plaintiff’s repeated requests that he comply with the Deputy Registrar’s order, the Defendant’s failure to repay anything of the debt and the Plaintiff’s desire to complete all legal proceedings in which it is involved prior to possible winding up.

Mr. Herman in answer suggested that the Plaintiff was at least partly responsible for the delay which had occurred. He pointed in particular to the Plaintiff’s own two year delay in complying with the Deputy Registrar’s order. He assured me that the Defendant would be in a position to file its own list of documents within 7 days and that he would be ready to attend a pre-trial conference within two months.

Although the application states that it is made pursuant to Order 28 rule 11 and Order 14 rule 5 neither of these Orders is rely appropriate. In my opinion Order 24 rule 16 (1) (b) is the relevant provision.

Although there have been substantial delays I accept that responsibility for at least a major part of these delays must be laid at the Plaintiff’s door since it is the Plaintiff which has the carriage of the action. Given the nature of the claim I do not think that there is any danger that a trial cannot be fairly held.

I am reluctant to shut out the Defendant altogether although there is really no excuse for his inactivity. This is a substantial claim and he has raised a number of apparently arguable legal points which the Plaintiff has simply denied.

In the circumstances I think peremptory orders will serve the interests of justice by bringing the matter on to early trial.

I decline to make the orders sought but instead order:

(i) that the Defendant comply with the Deputy Registrar’s order dated 26 July 2000 by no later than midday 9 May 2003; and

(ii) that the Defendant attend a pre-trial conference at the offices of Jamandas and Associates on a day to be agreed between the parties no later than 13 June 2003.

In the event of wilful default to comply with the above orders the Defence and Counterclaim will be struck out.

Both parties are given liberty to apply for further directions.

The Plaintiff will have its costs of this application in any event which I fix at $200 to be paid by midday 9 May 2003.

M.D. Scott
Judge

2 May 2003