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Fenech v Khan [2004] FJHC 386; HBC0215.2001L (9 March 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0215 OF 2001L

BETWEEN:

MICHAEL FENECH
Plaintiff

AND:

IFTAKHAR IQBAL AHMED KHAN
Defendant

Counsel for the Plaintiff: Mr. J. Sharma
Counsel for the Defendant: Mr. Haroon A. Shah

Date of Hearing: 8 March 2004
Date of Judgment: 9 March 2004

EXTEMPORE JUDGMENT

The application before the court is a Summons filed by the plaintiff under Order 14 of the Fiji High Court Rules for summary judgement. The application is supported by the affidavits of the plaintiff sworn on 19 September 2001, 30 April 2002 and 27 November 2003.

The defendant relies on affidavits sworn on 12 October 2001 and 24 October 2003.

The plaintiff sues pursuant to an agreement reduced to writing and dated 13 October 1999, which agreement provides for the advance of the sum of Forty Thousand Dollars ($40,000.00) by the plaintiff to the defendant being Thirty Thousand Dollars ($30,000.00) by way of bank cheque and Ten Thousand Dollars ($10,000.00) by way of cash with repayment to be at the rate of Three Thousand and Three Hundred and Thirty Three Dollars ($3,333.00) per month that the first payment one month hence. The agreement particularly provides and I quote: -

“This respectively money nothing to do with another business that may be we have in future.”

The defendant says that by virtue of section 41 of the Stamp Duties Act, the plaintiff cannot rely on this agreement, as it is not duly stamped. Counsel for the plaintiff undertakes to the court to stamp the document. In accordance with the procedure adopt in other Commonwealth countries I accept counsel’s undertaking and allow the plaintiff to rely on the document.

The defendant has filed a defence which says that only Thirty Thousand Dollars ($30,000.00) was advanced, that is, the bank cheque and that the Ten Thousand Dollars ($10,000.00) cash referred to in the agreement was not received by him and further that the sum of Twenty Three Thousand, Three Hundred and Thirty Four Dollars ($23,334.00) was appropriated to legal fees for and I quote: -“....several litigation matters.”

No tax invoice is produced and no detail is given of the work performed. The plaintiff denies that monies were offset for legal fees and of course the agreement to which I have referred specifically precludes this from occurring.

The defendant annexes to his affidavit of 24 October 2003, a copy of the document which authorises the defendant to appropriate the sum of Twenty Three Thousand, Three Hundred and Thirty Four Dollars ($23,334.00) for legal fees.

The plaintiff denies having seen the document and denies that the signature on it is his. No evidence is before the court by the witness to the document or more correctly by the witness to the plaintiff’s signature to the document.

The authority is not referred to in the defence filed by the defendant nor is it referred to in the earlier affidavit of the defendant.

In Fiji Development Bank v Inoke Moto & Others, Fatiaki J. said and I quote: -

“The correct approach to an application for summary judgement is succinctly summarised in my view in the headnote to the New Zealand Court of Appeal decision in Pemberton v Chappel [1986] NZCA 112; [1987] NZLR 1 where was said of the N.Z. equivalent of Order 14.”

And he further quotes:-

“Held: ... the High Court Rules cast onto the plaintiff the onus of convincing the court that the defendant has no fairly arguable defence. Normally that onus will be satisfied by the plaintiff’s affidavit verifying the allegations in the statement of claim and his oath that he believes that the defendant has no defence to the claim ... If a defence is not evident on the plaintiff’s pleading and the defendant wishes to resist summary judgement, the defendant must file an affidavit raising an issue of fact or law and give reasonable particulars of the matters which he claims ought to be put in issue. Where the only arguable defence is a question of law which is clear-cut and does not require findings on disputed facts or the ascertainment of further facts, the court may, and normally should, decide on the application for summary judgement. But where the defence raises questions of fact on which the outcome of the cause may turn it will not often be right to enter summary judgement.”

His Lordship then said: -

“Over a century earlier in 1880 Lord Blackburn in Wallingford v Mutual Society (1880) 5 A.C. 685 said of the nature of the affidavit required from a defendant in opposing an Order 14 application, at p. 704 and he quoted:-

“I think that when the affidavits are brought forward to raise (a) defence they must, if I may use the expression, condescend upon particulars. It is not enough to swear ‘I say I owe the man nothing’. Doubtless, if it was true, that you owed the man nothing as you swear, that would be a good defence. But that is not enough. You must satisfy the judge that there is reasonable ground for say so... And in like manner as to illegality, and every other defence that might be mentioned.”

It is difficult to see that: -

“The balance sum of Twenty Three Thousand, Three Hundred and Thirty Four Dollars ($23,334.00) was set off for several litigation matter done by me for the plaintiff which the plaintiff had agreed and is well aware of”

is a condescension upon particulars. One would expect from a solicitor and barrister detail of the work performed or at the very least an outline of the matters. The defendant’s affidavits are insufficient in detail to satisfy the requirements detailed above.

Paragraph 3 of the defendant’s affidavit of 24 October 2003 is confusing and conflicting in attempting to suggest that the agreement was only witnessed by the defendant and that he was not a party to it.

I accept the plaintiff’s explanation for the use of the honorific doctor, that is, it is the term used to refer to a lawyer in his birthplace, Malta.

I am troubled that whilst the defendant has not satisfied the requirements of Wollingford v The Mutual Society, the defence raises a question of fact which is dependant on the evidence to be given by the plaintiff and by the defendant.

I think it therefore inappropriate to grant the orders sought however I propose to condition the grant of leave to defend and to do so in such a way that should the defendant not satisfy the condition the plaintiff will be entitled to summary judgement.

The Orders that I make therefore are:

1. The plaintiff’s summons filed on 19 September 2001 is adjourned to 9.00am on 26 March 2004;
   
2. The defendant is granted leave to defend the proceedings conditional upon him filing with the court full and complete details by way of affidavit of all work performed for the plaintiff and allegedly offset for the sum of Twenty Three Thousand, Three Hundred and Thirty Four Dollars ($23,334.00) and including all relevant files by 3.30pm on 19 March 2004;
   
3. Should the defendant fail to comply with Order 2, the order sought in the plaintiff’s summons shall be granted on 26 March 2004;
   
4. I reserve the question of costs.
   

JOHN CONNORS
JUDGE

AT LAUTOKA
9 March 2004