Petisons Enterprises v Hansji [1997] FJHC 159; Hbc0366j.96s (24 October 1997)

Fiji Islands - Petisons Enterprises v Hansji - Pacific Law Materials

IN THE HIGH COURT OF FIJI

(AT SUVA)

CIVIL JURISDICTION

ACTION NO. HBC0366 OF 1996n>

BETWEEN:

oan">of Ming Fat Building, 4th Floor, 74 Wellington

Street, Hong Kong.
Plaintiff

AND

INDRAVADAN HANSJI
(Father's name Ratilal Hansji) of Nadi Town, Nadi
t/a "HANNAH'S FOOTWEAR"
Defendant

H.M. Patel and G.P. Lala for the Plaintiff

S. Chandra for the Defendant

Dates of Hearing: 6th December, 1996, 19th June 1997.

ass=MsoNormal style="margin-top: 0; margin-bottom: 0"> Date of Judgment: 24th October 1997

JUDGMENT

The Defendant applies to set aside a Default Judgment entered againstby the Plaintiff on 23rd Serd September 1996 for the sum of $20,636,22 and $77.00 costs.

The Summons to set aside was issued on 17th Or 1996 and I heard oral submissions on behalf of the Defendefendant on the 6th of December 1996. These were followed by written submissions on behalf of the Plaintiff which were filed on the 9th of December 1996 and by the Defendant on the 8th of May 1997an>

In iit on the 5th of August 1996 the Plaintiff which is a Commission Agent claims that the Defe Defendant operates a shoe shop business in Nadi Town under the name and style "HANNAH'S FOOTWEAR".

The Plaintiff alleges that at the request of the Defendant ited certain Bills of Exchange during 1995/96 which even afte after they had been duly protested remain unpaid. The Statement of then givn gives details of these Bills which amount to F$20,636.22 and claims that the Defendant has failed to make payment of ills which were due for payment on various dates between 28th of September 1995 and 22nd ofnd of November 1996.

Judgment in Default ofarance was entered by the Plaintiff on the 16th of September 1996. On 17th October 19er 1996 the Defendant issued a Summons seeking orders that the judgment be set aside and that the Defendant be at liberty to defend the action.

The Defence stated in an affidav the Defendant sworn and filed on 15th of October 1996 is simple: he denies that he trades ades under the name and style "HANNAH'S FOOTWEAR" or that he operates the shoe shop business in his personal capacity. He that he is one of the Dthe Directors of Hannah's Fiji Limited a duly incorporated limited liability company in Nadi and that Hannah's Fiji Limited operates a shop in Nadi Town under the name and style of "HANNAH'S AH'S FOOTWEAR".

The Defendant further says that he did not accept any e Bills of Exchange in question or any documents in his pers personal capacity but only on behalf of the company.

Copies of the Bills change in question are annexed to an Affidavit in Reply sworn by Sheik Adam Dabhoiwala who who trades in Hong Kong under the style of Petisons Enterprises.

The endorsement of the Bills by their alleged Drawer is not very clear but they appear to be signed by a person above the name "HANNAH'S FOOTWEAR".

Mr. Dabhoiwala alleges that they were signed and accepted for payment by the Defe trading as "HANNAH'S AH'S FOOTWEAR" and not as one of the Directors or officers of Hannah's Fiji Limited.

Mr. Dabhoiwala fu deposes that at no stage did the Defendant inform the collecting bank, Westpac Banking Corg Corporation that the goods were wrongly shipped or that Hannah's (Fiji) Limited was responsible for payment to the Plaintiff.

Mr. Dabhoiwala claims that the Defendant israising a technical or sham defence in order to prolong litg litigation or to evade his responsibility for making payments to the Plaintiff.

In response to this the Defendant says in an affidavit sworn on the 29th of November 1996 that at no point throughout his dealing with the Plaintiff and the Plaintiff's Fiji agent did he ever give the impression to either of them that he was carrying out the alleged transaction in his personal capacity. He thenats that he always ways accepted the goods in the name of "HANNAH'S FOOTWEAR" which is the trading name of Hannah's Fiji Limited.

The late Mr. Patel delivered a written submission in whichg other things he refers to the proviso to Section 23(a) ofa) of the Bills of Exchange Act Cap.227. This says that where a person signs a Bill in a trade name or assumed name he is liable on it as if he had signed it in his own name.

Mr. Patel then points out tn none of the Bills does the name Hannah's Fiji Limited appear and that if what the Defendafendant is now saying is true then he should not have accepted the Bills made out in any other name. Accordingly he says the Defendant is personally liable.

In response ts submission the Defendant says that he accepted the Bills as "for" or "per&;per" "HANNAH'S FOOTWEAR" and not in his personal capacity.

He also says that no consideration was passed to the Defendant in his personal capacity. Tods wupplied to "quot;quot;HANNAH'S FOOTWEAR"

The law on setting aside judgments is well settled. Its statutory foundation und in Order 19 Rule 9 of t of the High Court Rules 1988 which reads:

p class=MsoNormalormalormal style="margin-left: 36.0pt; margin-right: 72.0pt; margin-top: 0; margin-bottom: 0"> "The Court may,uch terms as it thinks just just, set aside or vary any judgment entered in pursuance of this order."

There wealth of case law on the subject, one of the cases most frequently cited being Evans vans v. Bartlam (1937) A.C. 473. At p.480 Lord Atkin said:

"The principle obviously is that unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure."

In our own diction Scott J. said at p.8 of his judgment in Fiji Forest Industries Ltd. v. Timber Hoer Holdings Ltd. & Ors Suva High Court Civil Action No. 117/94:

"The central requirement is for the applicantatisfy the Court by evidencidence that the Defendant has, in the time hallowed phrase "a good defence on the merits."

"This of course does not mean that I should attempt to resolve the issues between the parties now, that I should decide whether I think that the proposed defence is likely to be successful. Alave to decide is whetherether I am satisfied that the Defendants have put forward a bona fide Defence giving rise to triable issquot;

Having considered the present material I have come to the conclusion that the Defendant should be allowed to argue his case in Court by being given liberty to defend. In mgment there are questiuestions of credibility and of fact raised by the affidavits of the parties and there is also a question of law raised in the Plaintiff's submission on Section 23(a) of tlls of Exchange Act. bsp; Probahis is a questioestion of mixed fact and law namely whether the person signing the Bills signed in a trade name or assumed name and whether the proviso applies here.

I consider it would be unfair at this stage to shut the Defendat finally from the Court Room and I accordingly order that that the Default Judgment entered against him be set aside, that the Defendant deliver his Defence within 14 days of the date of this judgment and that the costs of this application be in the cause.

JOHN E. BYRNE

JUDGE

p class=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> Legislation and cases referred to in jut:

Bills of Exchange Act Cap. 227.

Rules of High Court Order 13 Rule 9 and Order 19 Rule 9.

Evans v. Bartlam (1937) A.C. 473.

Fiji Forest Industries Ltd. v. Timber Holdings Ltd. & Ors - Suva High Court Civil Action No. 117/94.

The following additional casee cited in submissions:

Anlaby v. Praetorious [1888] UKLawRpKQB 55; (1888) 20 QBD 764.

Atwood v. Chicester [1878] UKLawRpKQB 4; 3 QBD 722.

Beale v. MacGregor (1886) 2 TLR 311.

Bula Limited v. Geelong Holdings Ltd. - Suva High Court Civil Action No. 173 of 1977.

Amarsee Bhagwanjee (HK) Imp. & Exp. Limited v. Lodhias Limited Civil Action No. 1255 of 1984 - unreported judgment of Cullinan J. dated 10th September 1985.

Amarsee Bhagwanjee (HK) Import & Export Ltd. v. Laxmi Time Industries Ltd. - unreported judgment of Fatiaki J. dated 29th April 1988.

Coir Industries Limited v. Louvre Windows Limited 30 F.L.R. 45.

Dragon Seafood Company (Fiji) Limited v. Seamech Limited - Suva High Court Action No. HBC0246 of 1995 - unreported judgment of Byrne J. dated 12th June 1996.

Krishna v. Singh F.C.A. - 35/82.

Fiji Sugar Corporation v. Ismail - F.C.A. 28/87.

Motor Group of Fiji Ltd. v. Commissioner of Inland Revenue - F.C.A. 48/87.

Vinod Prasad v. The CMLA Society Ltd. - Labasa High Court Civil Action No. 31/94.

President Hotels Ltd. v. Lami Town Council - Suva High Court Civil Action No. 129/90.

Russel v. Cox (1983) NZLR 654.

Hbc0366j.96s