Veretawatini v Timote [2001] FJHC 249; HBC187.2000 (9 November 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 187 OF 2000

Between:

ERONI TURAGADUADUA VERETAWATINI
trading under the name and style of
ERONI VERETAWATINI ESQ
Plaintiff

And

FUATA TIMOTE
JOSEPH VILIAME
Defendants

The Plaintiff in Person
Mr. K. Muaror for the Defendant

DECISION

This is the plaintiff’s summons dated 18 July 2000 for an order for Summary Judgment against the defendants upon the grounds set forth in the plaintiff’s affidavit sworn and filed herein in support.

The defendants have through their counsel filed an affidavit in response. Followed by an affidavit in reply by the plaintiff. As ordered both counsel have filed written submissions for my consideration.

Background facts

On 17 April 2000 the plaintiff who is a barrister and solicitor issued a Writ of Summons signed by him as Solicitor for himself against the defendants claiming certain orders, damages and costs.

His claim arises out of the intended sale of his motor vehicle to the defendants, the intended purchasers for the sum of $34,000.00. Certain steps were taken by the purchasers but later they declined to proceed with the transaction to finalization on the grounds set out in the various affidavits filed during the course of this application for summary judgment.

Consideration of the application

It is the plaintiff’s contention, inter alia, that when he was ready to register the security documents in exchange for settlement cheque, he was informed by the defendants that they no longer wished to proceed with the sale. He told them that in these circumstances he will be seeking the Court’s intervention for ‘specific performance’ of the transaction. But the defendants failed to respond and hence this action.

The defendants on the other hand contend that it was not the plaintiff but one James Singh (a car dealer) who showed them the car in question. They did not know that the plaintiff was the owner of the vehicle Reg. No. DD419 and that the plaintiff was not present when this vehicle was shown to them. In fact they say that they have not met the plaintiff up to the date the affidavit herein was sworn by them. They said that they entered the car deal ‘directly with Mr. James Singh and not with the Plaintiff as alleged by the Plaintiff.’

Thereafter Singh had difficulty in contacting the plaintiff to show them the vehicle. This went on for about a month and a half. Finally the defendants out of frustration and disappointment had no choice but to cancel their loan offer.

The defendants in their affidavit have set out in a summary form their defence to the allegations of the plaintiff.

I have considered the submissions made by both counsel.

I find that in opposing the application the defendants have, in my view and to my satisfaction shown cause through their affidavit evidence that the orders should not be made. There are triable issues and in these circumstances judgment cannot be entered against the defendants. In this context the following passages from the judgment in Powszechny Bank Ziwakowy W. Polsce v. Paros (1932) 2 K.B. 353 are worth noting:

Greer L.J. at p.359 said:

"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’."

In the light of the above I am of the view that the defendants meet the threshold requirements as enunciated by Greer L.J. and hence there ought to be a trial on the issues. For further discussion on the application of Ord. 14, see my judgment in Westpac Banking Corporation and Pritam Singh s/o Ujagir Singh (Labasa Civ. Action No. 9 of 1995 - Judgment 16 Jan., 1998).

In the exercise of my discretion, on the evidence before me, for the above reasons and bearing in mind the purpose of Ord.14 as stated in the following passage from the judgment of Parker L.J. in Home and Overseas Insurance Co. Ltd. v. Mentor Insurance Co. (UK) Ltd. (in Liq.) (1989) 3 All E.R. 74. I refuse the orders sought by the plaintiff:

"The purpose of Ord.14 is to enable a plaintiff to obtain a quick judgment where there is plainly no defence to the claim. If the defendant’s only suggested defence is a point of law and the court can see at once that the point is misconceived the plaintiff is entitled to judgment. If at first sight the point appears to be arguable but with relatively short argument can be shown to be plainly unsustainable the plaintiff is also entitled to judgment. But Ord. 14 proceedings should not be in my view be allowed to become a means for obtaining, in effect, an immediate trial of an action, which will be the case if the court lends itself to determining on Ord. 14 applications point of law which may take hours or even days and the citation of many authorities before the court is in a position to arrive at a final decision.

The plaintiff’s summons is for these reasons dismissed with costs in the sum of $200.00 against him to be paid within 7 days. The action is to take its normal course.

D. Pathik
Judge

At Suva
9 November 2001