BP South West Pacific Ltd v City Transport Ltd [1997] FJHC 136; Hbc0171j.96s (17 September 1997)

Fiji Islands - BP South West Pacific Ltd v City Transport Ltd - Pacific Law Materials

IN THE HIGH COURT OF FIJI

At Suva

Civil Jurisdiction

CIVIL ACTION NO. 0171 OF 1996

BETWEEN:

ass=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> B.P. SOUTH WEST PACIFIC LIMITED
Plaintiff

AND:

CITY TRANSPORT LIMITED
Defendant

Mr. R. Smith for the Plaintiff
Mr. T. Karunairatnum for the Defendant

RULING

On th the plaintiff company issued a Writ ostensibly seeking thng the return of various equipment detailed in the Statement of Claim and which was hired to the defendant company pursuant to a Supply Agreement entered into by the parties in November 1992.

On April 1996 the dehe defendant company filed an Acedgement of Service> signifying its intention 'to contest the proceedings'. Unfortunately the defendant comdid not pursue its 'i'intention' and on the 24th of July 1996 Interlocutory Judgment in Default of Defence was entered against the defendant company requiring it to return to the plaintiff company the aforementioned equipment.

On the 1st of August 1996 the defendant company filed a motion seeking 'AN ORDER that the defendants do have unconditional leave to defend the action' and other consequential orders.

The affidavit in support of the motion which waspropriately sworn by a law clerk of the defendant company'sany's solicitors deposed that the solicitors had 'misplaced' their office file thus explaining their inability to file a Statement of Defence on time and further, that the defendant company has 'a substantial defence on the merits'.

In this latter regard a proposed Statementefence comprising four (4) paragraphs was annexed txed to the affidavit of which paragraphs 1 and 3 are relevant and read as follows:

"1. THAT as regards paragraph one of the Statement of Claim the Defendants denies that the Plaintiff delivered the alleged equipment or any at all either pursuant to the alleged agreement or otherwise.

3. THAT the Defendant further says that the subject matter of the within claim is substantially similar to the Plaintiff's counterclaim in the Suva High Court Civil Action No. 576 of 1995 and to which the Defendant has filed a reply."

I need only deal very briefly with this latter paragraph which under no circuces can be said to give rise rise to 'a substantial defence' to the plaintiff's claim. It is neither deposed to or 'fleshed-out' in the law clerk's affidavit nor was it seen fit to annex the relevant 'pleadings' with a view to demonstrating the substantial similarity in the respective claims. Indeed defence counsel on being pressed, merely stated that 'both claims arise out of the same Supply Agreement'.

The plaintiff company's Area Rentative on the other hand categorically deposes in his affidavit in opposition that: 'there is no connection between the two actions'. Even accepting defence counsel's statement across the bar-table, the mere fact that the claims arise out of the same agreement does not necessarily mean that they are 'substantially similar' and I reject that averment as wholly unmeritorious.

As to paragraph 1 of the proposed Statement of Defence defence counsel submits that the substantial defence raised by the defendant company 'is that it denies ever receiving or being supplied with the various items of equipment' or had the same 'delivered' to its business premises. If I may say so this averment made almost 5 years after the agreement was signed by the defendant company appears on the face of it, to contradict the plaintiff company's claim that it 'let to the defendant and the defendant hired from the plaintiff' the equipment.

Is that enough to move the court to exercise its discretion in favour of the defendant company? I think not. In the first place, the validity of the Supply Agreement is no-where denied by the defendant company nor has it claimed repudiation or a right to rescind the agreement on the basis of non-performance by the plaintiff company of Clause 4, yet that is the very basis of its proposed 'defence'.

The plaintiff company's Area Representative adnally deposed in his affidavit: "that the Defendefendant does not have a substantial or any defence to the plaintiff's claim the Defendant having taken the equipment in dispute on hire from the Plaintiff pursuant to Clause 4.1 of the undated Supply Agreement commencing in November 1992." To this quite specific assertion, the defendant company's solicitor's clerk merely states: 'I deny the same.' Such a bare denial from a law clerk albeit employed by the defendant company's solicitors is quite unacceptable in its vagueness and reliability and I reject it.

Such a bare denial neither 'condescends uarticulars' nor can it be said on any reading, to a to amount to 'an affidavit of merits' i.e. an affidavit stating facts showing a defence on the merits. There is no substance at all in the defendant company's proposed Statement of Defence which appears to be nothing more than a 'play on words'.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The application is accordingly dismissed wosts to the plaintiff company.

D.V. Fatiaki
JUDGE

p class=MsoNormaNormal style="margin-top: 1; margin-bottom: 1"> At Suva,

Hbc0171j.96s