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Krishna v Automart Ltd [2004] FJHC 417; HBC0388.2000L (14 May 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0388 OF 2000L

BETWEEN:

KRISHNA
f/n Mast Ram
1st Plaintiff

AND:

MERCHANT BANK OF FIJI LIMITED
2nd Plaintiff

AND:

AUTOMART LIMITED
Defendant

AND:

SANJAY SHAKIL RAM
1st Third Party

AND:

COMMISSIONER FOR STAMP DUTIES
2nd Third Party

Counsel for the Plaintiff: Mr. R. Gordon
Counsel for the Defendant: Mr. K. Vuataki

Date of Hearing & Judgment: 14 May 2004

EXTEMPORE JUDGMENT

Before the court is a Summons to strike out the statement of defence filed by the plaintiff on 3rd October 2001. The Summons seeks to strike out the defence upon the basis that it discloses no reasonable defence against the plaintiff is scandalous, frivolous or vexatious, or may prejudice, embarrass or delay the fair trial of the action; or is otherwise an abuse of the process of the court.

The application is made pursuant to Order 18 Rule 18 of the High Court Rules. The plaintiff and the defendant have both made submissions with respect to the application and have referred the court to the relevant authorities.

The defendant in its statement of defence relevantly says that it had executed a Bill of Sale over a motor vehicle. The Bill of Sale it says was not discharged and that the debt was still owing and that the defendant seized the vehicle relying on the Bill of Sale.

The plaintiff’s submissions are that the Bill of Sale has not been registered, a fact, which is acknowledged by the defendant’s counsel. The plaintiff then relies upon the provisions of Section 7 of the Bills of Sale Act (Cap. 225) which provides and I quote: -

“Every bill of sale of which this Act applies shall be duly attested, and shall be registered, within seven days after the making or giving thereof if made or given in Suva, or within twenty-one days if made or given elsewhere than the city of Suva, and shall set forth the consideration for which such bill of sale was given; otherwise such bill of sale shall be deemed fraudulent and void.”

It is the plaintiff’s submission that the Bill of Sale relied upon the by the defendant was not registered as prescribed by section 7 and is therefore void and of no effect and that being so, there is effectively no defence.

The provisions of Order 18 Rule 18 have been considered by the court on numerous occasions and the authorities which those considerations consistently rely on have not changed in recent times. It is perhaps convenient to look at the decision of Mr. Justice Byrne in Action No. 0018 of 1986, His Lordship there referred to the relevant authorities on page 4 of his judgment where he said and I quote: -

“The law governing an application such as this is well settled. Lindley MR in Hubbuck v Wilkinson [1889] 1 Q.B. 86 page 91 said that it is only in plain and obvious cases that recourse should be had to the summary process under Order 18 Rule 18(1) of the Rules of the High Court. This was affirmed in Kemsley v Foot & Ors [1952] A.C. 345. In Attorney General of Duchy of Lancaster v L.N.W. Ry Co. [1892] UKLawRpCh 134; [1892] 3 Ch 274 said that Rule 18 can only be invoked when the claim is on the face of it “obviously unsustainable.”

And again, the caution that should be exercised when considering applications of this type was highlighted by Mr. Justice Pathik in Hemant Kumar v Suresh Kumar & Ors [2003] Civil Action HBC0033 of 2003 where His Lordship in applying Attorney General v Shiu Prasad Halka [1972] 18 FLR 210 at 215 said and I quote: -

“I think it is definitely established that the jurisdiction to strike out proceedings under Order 18 Rule 18 should be very sparingly exercised, and only in exceptional cases. It should not be exercised where legal questions of importance and difficulty are raised.”

It is with these authorities in mind, that I cautiously approach the consideration required by the court in this matter.

Making that cautious consideration and taking account of the acknowledgment by counsel for the defendant, it is my opinion that the statement of defence by virtue of provisions of section 7 of the Bills of Sale Act discloses no reasonable defence, that being so, I find that the defendant’s statement of defence must be struck out and accordingly the Orders of the Court will be: -

1. The defendant’s statement of defence is struck out;

2. The defendant to pay the plaintiff’s costs of this application in the sum of One Thousand and Eight Hundred Dollars ($1,800.00);
   
3. Judgment for the plaintiff;
   
4. Proceedings to be listed for assessment of damages if necessary.
   

JOHN CONNORS

JUDGE

AT LAUTOKA

14 MAY 2004