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Khan v Swamy [2018] FJHC 647; HBC237.2015 (24 July 2018)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 237 of 2015

BETWEEN: INTIAZ KHAN and REHANA KHAN both of Fletcher Road, Vatuwaqa, Suva, Company Director and Cooperate Sales Executive, respectively.

PLAINTIFF

AND: AKESH ANAND SWAMY of 17 Brighton Street, Greystanes, New South Wales, Australia, occupation unknown to the Plaintiffs.

DEFENDANT

BEFORE: Master Vishwa Datt Sharma

COUNSEL: Ms. Dewan - for the Plaintiff

Mr. Isireli Fa - for the Defendants

DATE OF RULING: 24^th July, 2018 @ 9am

RULING

(Application by the Plaintiff for Summary Judgment pursuant to Order 86 Rules 1 of the High Court Rules 1988 and the Inherent Jurisdiction of this Honorable Court)

INTRODUCTION

1. The Plaintiff filed a Summons on 3^rd February, 2017 and sought for the following orders:
   • (i) That Summary Judgment be entered against the Defendant for the specific performance of the Sale and Purchase agreement executed by both parties on the 11^th March 2015 as per the Statement of Claim filed on 9 July 2016 and for costs of this action.
2. The application is made pursuant to Order 86 Rules 1 of the High Court Rules, 1988 and the Inherent Jurisdiction of this Honourable Court.

THE LAW

3. Application by plaintiff for summary judgment (O.86, r.1)
   
   1.-(1) In any action begun by writ indorsed with a claim –

(a) for specific performance of an agreement (whether in writing or not) for the sale, purchase, exchange, mortgage or charge of any property, or for the grant or assignment of a lease of any property, with or without an alternative claim for damages, or

(b) for rescission of such an agreement, or

(c) for the forfeiture or return of any deposit made under such an agreement, the plaintiff may, on the ground that the defendant has no defence to the action, apply to the Court for judgment.

(2) An application may be made against a defendant under this rule whether or not he has acknowledged service of the writ.

PLAINTIFF’S CASE

4. The Plaintiff is seeks an Order for Summary Judgment against the Defendant on the foundation as set out within the Statement of Claim at paragraphs 3-5 inclusive as follows-
   

3) By an agreement made in writing dated the 11 March 2015 and made between the Plaintiffs and the Defendant, the Defendant agreed to sell and the Plaintiffs agreed to purchase the said property for the sum of $400,000.00 (four hundred thousand dollars).

4) The agreement date the 11 March 2015 (hereinafter referred it as “the said agreement”) was subject to the following conditions:

(a) A deposit of $10,000.00 (Ten Thousand Dollars) was required to be paid by the Plaintiffs to the Defendants solicitors Trust account upon execution of the said agreement.

(b) The balance purchase price of $390,000.00 (Three Hundred Ninety Thousand Dollars) was payable on the date of settlement of the transaction.

5) The said agreement further provided (inter alia) that:

(a) The sale was required to be completed within 60 days from the date of the execution of the said agreement or such other date as may be mutually agreed in writing between the parties.

(b) The Purchasers were responsible to pay for the stamp duly for the transfer.

(c) The Vendor was required to pay any applicable capital gains tax applicable and obtain a capital gains tax clearances certificate.

(d) In the event the Vendor (Defendant herein shall make default in the performance or observance of any stipulation or agreement and if such default shall continue for the space of fourteen (14) days from the due date then and in such purchasers (Plaintiffs herein) without prejudice to any other remedies available to them may at their option exercise all or any of the following remedies:-

• (i) Rescind the contract of sale and thereupon all monies therefore paid or under the terms of sale applied in reduction of the purchase money shall be refunded to the Purchasers without deduction.
  
• (ii) Sue for specific performance of the agreement.
  
• (iii) Sir for special and general damages.
  

DEFENDANT’S CASE

5. The Defendant resisting the Plaintiff’s application, and relies on its Statement of defence in particular paragraphs 2-5 as set out hereunder:
   

2) The Defendant remains the registered proprietor of CT No. 6913 to this date.

3) That I refer to paragraph 3 of the Statement of Claim and say that the agreement in question was an illegal agreement as it was encompassed the payment of $30,000.00 to the defendant which was not disclosed in the terms and conditions of the Agreement. That upon obtaining legal advice, the Defendant proceeded to rescind the Agreement and offered to refund the Plaintiff the monies paid contrary to the agreement for the purchase of CT No. 6913.

4) That paragraph 4 of the statement of Claim is denied. The contract that the defendant agreed to was for the payment of a deposit of 10% (i.e. $43,000.00) upon signing of the agreement and the balance of $387,000.00 (Three Hundred and Eighty Seven thousand Dollars) on the settlement date.

5) The Defendant refers to paragraph 5 of the Statement of Claim and states that the assertions therein are irrelevant as the alleged agreement for the sale of the property is unlawful and that the Defendant has rescinded the same.

ANALYSIS and DETERMINATION

6. The Plaintiff filed the Summons and sought for an order for Summary Judgment against the Defendant.
7. According to the principles of summary judgment, the Defendant is required to file an affidavit that deals specifically with the Plaintiff’s claim and state clearly the defence and facts it relies upon to support it. If there is no affidavit filed at least the Statement of Defence must clearly set out the Defence.
8. The Defendant resisting the summary judgment must establish that there is an issue or question in dispute with respect to the claim or the part of the claim which ought to be tried or there ought for some reasons to be a trial of that claim or part. If the defendant fails to do so, then the court will enter summary judgment against the defendant on that claim or part thereof.
9. In Coral Surf Resort Ltd v Yam Civil Action No. 66 of 2008, Master Tuilevuka (as he was then) stated as follows-

‘Once a claim is established, the evidential and persuasive burden shifts to the Defendant (see Thomas J in Hibiscus Shopping Town Pty Ltd v Woolworths Ltd [1993] FLR 106 at 109) who must adduce affidavit claim and affidavit and also state clearly and precisely what the defence is and what facts he relies on to resist the entry of summary judgment: Magan Lal Brothers Ltd v L. B. Masters & Company Civil Appeal No. 31/84.’

10. In the current case, the Defendant has not filed any affidavit in response to the affidavit of Intiaz Khan dated 02^nd February, 2017. The Defendant submitted that there are other Documents filed in this matter, the principal document being the Defendant’s Statement of Defence which clearly establishes that there are questions in dispute and which ought to be tried.
11. Bearing in mind the above, it is therefore important that I must decide whether Summary Judgment is available to the Plaintiff in this case with regards to the nature of the claim.
12. In this case, the writ of summons was served and the defendant has filed an acknowledgement of service giving notice of intention to defend the action. Thereafter, on 18^th July, 2016, Statement of Defence was filed. The Plaintiff therefore is entitled to apply for Summary Judgment against the Defendant. Further, the filing of a Statement of Defence before an application for summary judgment does not preclude an application being made, nor does it prevent summary judgment being granted if the court is of the view that there is no defence to the claim.
13. Reference is also made to the case of Metal works & Joinery Limited v Fiji Islands Revenue & Customs Authority, Justice Pathik applying the Court of Appeal decision delivered by Greig J in Australia Guarantee Corporation (NZ) Ltd-v- Mc Beth [1992] 3 NZLR 54 at 58 held in determining the issue before him on the facts and circumstances of this case:-
    

‘The summary judgment procedure is a simple expeditious way to enable a plaintiff to obtain judgment where there is no real defence to the claim made see Pemberton v Chappell [1986] NZCA 112; [1987] 1 NZLR 1 at 2. The essence of the procedure is the plaintiffs own verification by affidavit of his own statement of claim and the allegation made in it: Harry Smith Car Sales Ltd v Clay com Vegetable Supply Co Pty Ltd [1978] 29 ACTR 21. There has to be balancing between the right of the defendant to have his day in court and to have his proper defences explored and the appropriate robust and realistic approach called for by the particular facts of the case: see Bilby Dimock Corporation Ltd v Patel {1987] [1987] NZCA 193; 1 PRNZ 84 and Cegami Investment Ltd v AMP Financial Corporation [NZ] [1990] 2 NZLR 308 at p. 313. Although the onus is upon the plaintiff there is upon the defendant a need to provide some evidential foundation for the defences which are raised. If not the plaintiffs verification stands unchallenged and ought to be accepted unless it is patently wrong.’

14. I have perused the Defendant’s Statement of Defence filed on 18^th July, 2016. The Defendant either denies or endeavours to explain the various paragraphs of the Plaintiff’s Statement of Claim in his Statement of Defence.
15. The Defendant alleges in his written submissions “that the amounts paid by the Plaintiff to the Defendant do not match the amounts referred to in the Agreement relied on by the Plaintiff. The Defendant further stated that the total deposit for the land in question has been $43,000, been 10% of the total price and therefore in this regard the total price if calculated correctly would be $430,000. This is the amount the Defendant has received from the Plaintiff. The Defendant submitted that the Sale & Purchase Agreed relied on by the Defendant does not reflect this fact.

For this reason, the Defendant has stated that it no longer wishes to continue with the Sale & Purchase Agreement and has informed the Plaintiff the monies paid has been returned. The Plaintiff provided no corroborative evidence to this effect. In fact the Plaintiff’s annexures make it quite clear that the parties dispute the facts in this case in particular annexures IK6-IK7 inclusive”.

16. The Plaintiff’s contention is that the Defendant does not have a meritorious Defence for the following reasons-
    • The Agreement was signed by all parties. The Defendant failed to raise any issues at the time of the signing of the agreement and afterwards regarding any errors in the specified deposit and balance purchase price of $10,000 and $390,000.
    • The Deposit paid was $10,000 to the Defendant’s Solicitors trust account. No further request was made for the alleged balance sum of $33,000 because that was not the Agreement.
    • The $30,000 is not provided for in the Agreement because it was not the intention of parties at the material time.
    • The Defendant requested $30,000 because he needed the funds and not as an illegal arrangement as alleged.
    • The Total deposit made was only $40,000 and not the alleged $43,000 as claimed by the Defendant. The Defendant at no point in time took steps to request the alleged balance.
    • That for the above rational, the Plaintiff’s believe that the Defendant is attempting to come up with a false reason to rescind the Agreement to avoid selling the property to the Plaintiffs and instead sell to a higher buyer.
17. It can now be clearly ascertained from the parties written submissions and the arguments that the central issue that sets in between the Plaintiff and the Defendant is the issue of Purchase price. What was in fact the initial agreed purchase price of the subject property? Was it $400,000 as asserted by the Plaintiff or was it $430,000 as asserted by the Defendant?

The Defendant asserts the total purchase price of $430,000 on the basis that the Plaintiff has paid him a total of $43,000 which is 10% of the purchase price of $430,000.

18. The Plaintiff says otherwise and asserts the purchase price of the property at $400,000.
19. At this point in time, I find that there already exists a dispute as to the actual agreed purchase price of the property between the parties whether it was $400,000 and/or $430,000?
20. The Court in having to decide whether the Defendant’s Defence is a meritorious one or not, then the Court has to consider at all the circumstances of this case in its entirety (per Brown L.J, Blaiberg v Abrams, 77 L.T.J 55 C.A.)
21. In this case, I find that the Defendant has denied the claim by the Plaintiff for which summary judgment is sought and therefore has raised a dispute and Defence which requires a determination of the court at a hearing.
22. The Defendant has raised both legal and triable issues together with some questions in dispute as discussed hereinabove. Therefore, these triable issues and questions in dispute cannot simply be dealt with in a summary manner rather ought to be tried in a proper trial. The matter can then be determined in a just and fair manner where both parties to the proceedings will be able to give evidence, tender documentary evidence to support their respective cases and examine the witnesses to test out the evidence before the Court once and for all.
23. Taking into consideration all above and in exercise of this Court’s discretion whilst applying the appropriate applicable principles to the nature of the Plaintiff’s application, the Defendant ought to be allowed to defend this action at a proper hearing accordingly.
    
24. In conclusion, I make the following orders:
    

FINAL ORDERS

(i) The Plaintiffs’ application seeking an order for summary judgment is hereby refused and accordingly dismissed.

(ii) Costs against the Plaintiff is summarily assessed at $1,000.

(iii) Matter to take its normal cause of action.

Dated at Suva this 24^th Day of July, 2018

...............................................................
MASTER
VISHWA DATT SHARMA

cc: Neel Shivam Lawyers, Suva
Fa & Company, Suva