Industrial Maritime Engineering Ltd v Te Mautari Ltd [1997] FJHC 78; HBG0008d.1996s (27 June 1997)

Fiji Islands - Industrial Maritime Engineering Ltd v Te Mautari Ltd - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

ADMIRALTY ACTION NO. 0008 OF 1996

BETWEEN:

nter>INDUSTRIAL MARINE ENGINEERING LIMITED
Plaintiff

AND:

TE MAUTARI LIMITED
1st Defendant

AND:

M V MOAMOA
2nd Defendant
IN REM

Mr. S. Lateef for the PlaintiffMs. Lutu Volau for the Defendants

DECISION

This is an application by the plaintiff for summary judgment under Order 14 of the High Court Rules.

The plaintiff's claim arises out of work done and materials supplied by the plaintiff to the D1's vessel the "BAEAO" at its request.

It is the plaintiff's contention that further to the quotation it gave and which was accepted, it completed the "works". The D1 made part payment of $5066.78 in May 1996 on the plaintiff's invoice. The D1's sister ship "Moamoa" was arrested for the balance debt of $11,440.00 but it was released on condition that the first defendant pay the debt into Court which it did.

The Plaintiff says that it sub-contracted part of the "works" to Trade Publicity Limited of which SPENCER AH SAM is the principal share-holder and director. Mr. Ah Sam in his affidavit filed on 17 April 1997 confirms this point. He also says that he has been paid $4000 already by the Plaintiff for this job and that he did not deal directly with the defendant.

The Plaintiff says that the defendant has no defence to this action.

This application was made on 22 October 1996. On 31 October 1996 the D1 filed its Statement of Defence (dated 22 October 1996).

Defendants' contention

The D1 through its director BAIE TEANOKO in reply to this application filed 26 February 1997 stated that D1 obtained quotations from other companies for the 'works' and that Trade Publicity Limited was "contracted to carry out the said works" (part of the 'works', namely, the water-blasting of the hull and top-side together with painting, (ii) removal and renewal of zinc anodes and (iii) over-haul of the seven-sea valves). He says that the 'part payment' made is "payment in relation to the works we had expressly advised the Plaintiff to undertake on our behalf and which is fully explained in my correspondence to the Plaintiff of the 20th of May, 1996."

He further replied to AH SAM'S affidavit by denying its contents and stating, inter alia, that he himself appointed Trade Publicity as contractor to carry out repair work and all discussions were between him and AH SAM.

The defendant denies the Plaintiff's claim and says that it has a very good defence. It has since this application filed its defence. It also states that the Plaintiff 'acted unlawfully and in abuse of the Court process in arresting the MV "Moamoa" in the matter which it did'.

Law

I shall now consider the applicable law in respect of applications for summary judgment, Or.14 provides (in so far it is relevant):

"1. - (1) Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has given notice of intention to defend the action, the plaintiff may, on the ground that that defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part except as to the amount of any damages claimed, apply to the Court for judgment against that defendant."

In this matter the plaintiff issued a writ on 31 September 1996 and filed Statement of Claim dated 15 October 1996. On 31 October 1996 the defendant filed Statement of Defence (after issue of this summons).

The powers of court in hearing the application are set out in Or. 14 r.3 which provides (inter alia):

"3. - (1) Unless on the hearing of an application under rule 1., either the Court dismisses the application or the defendant satisfies the Court with respect to the claim, or the part of a claim, to which the application relates that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim or part, the Court may give such judgment for the plaintiff against that defendant on that claim or part as may be just having regard to the nature of the remedy or relief claimed."

If the relevant facts remain in dispute the court will refuse the application. So also where a difficult question of law is to be decided.

To enable the matter to proceed to trial the defendant has to show that it has a reasonably arguable defence.

Consideration of the issue

I have considered the affidavits filed herein and the oral submissions of both counsel.

It is abundantly clear to me that the facts are in dispute although at first it appeared that the defendant admitted its liability to pay when it made certain part-payment. There is disagreement between what AH SAM says and what D1 says (vide their affidavits). Also to be noticed is the fact that although the application was made before the defence was filed, which the Plaintiff was entitled to do under the Order, the Statement of Defence does raise a number of triable issues. I am not unmindful of the fact that the mere raising of a defence whether complicated or not or difficult will not of itself result in a refusal to grant summary judgment. No doubt the Plaintiff has proceeded with this application with the thoughts expressed in the following passage from the decision of ASCHE C.J. in CIVIL & CIVIC PTY LTD v PIONEER CONCRETE (NT) PTY LTD [1991] NTSC 3; (1951) 103 FLR 196:

"Why should not the plaintiff be entitled to judgment as soon as possible if there really is no defence? Why should he not be entitled to save himself, and for that matter, the defence, further costs and delay when the issue can be decided, albeit after somewhat extensive argument? I do not think the mere complexity or apparent complexity of the argument should automatically shut out the plaintiff from immediate relief. He faces the sanction of costs if he is unsuccessful; but if, ultimately, he shows clearly that there is no defence there is every sensible commercial reason why the case should go no further."

However, great care should be exercised in granting summary judgment and should not be exercised unless there is no real question to be tried (FANCOURT v MERCANTILE CREDITS LTD (1983) HCA 25; [1983] 154 CLR 87 at 99; THESEUS EXPLORATION NZ v FOYSTER [1972] HCA 41; [1972] 126 CLR 507).

On the burden of proof, THOMAS J said in HIBISCUS SHOPPING TOWN PTY LTD v WOOLWORTHS (Q'LAND) LTD [1993] NTSC 21; (1993) 113 FLR 106 at 109:

"The legal burden of proof is borne by the plaintiff throughout the application, however when he has established a prima facie right to an order, a "persuasive" or "evidential" burden shifts to the defendant to satisfy the court that judgment should not be given against him:" see Australian & New Zealand Banking Group v David [1991] NTSC 74; (1991) 105 FLR 403; 1 NTLR 93.

Bearing in mind the above statement D1 has satisfied me that judgment should not be given against it.

Apart from what I have stated hereabove, on the authority of Court of Appeal case of POWSZECHNY BANK ZW1AZKOWY W POLSCE v PAROS (1932) 2 KB 353, summary judgment cannot be entered on the facts of this case. The principles stated therein should be borne in mind in an application under Order 14.

There at page 359 SCRUTTON L.J. said:

"The mere statement in the plaintiffs' affidavit that they took the note in good faith and for value is not sufficient to decide that issue in their favour. In my opinion when a defendant presents a prima facie case of fraud in the plaintiff, the Court ought to act on that and give him leave to defend without imposing the condition that he should pay money into Court."

And at p.359 GREER L.J. said:

"I am of the same opinion. It has long been the rule that in proceedings under Order XIV, what the Court, whether this Court or the King's Bench Division, has to ascertain is whether there is a triable issue. If there is, no matter how strongly the Court may anticipate that it will be decided in the plaintiff's favour, it must order a trial."

He goes on to say that:

"All the defendant need say is that he requires the plaintiff to prove his case, and the law puts upon the plaintiff the onus of proving it. When the defendant says he does not admit the claim he need not carry the case any further than to say: 'There is a triable issue and I want to have it tried'."

Based upon the affidavit evidence before me and on the authorities I am not satisfied that the issue before me can be resolved on this application. I therefore consider that the action take its normal course. The Plaintiff is not prejudiced as the balance of the claim is held in Court.

In the outcome, the application for summary judgment is refused with costs in the cause.

D. Pathik
Judge

At Suva
27 June 1997

Hbg0008d.96s