GMR Muhammed & Sons Pty Ltd v Chand [2001] FJHC 43; Hbc0235j.2000s (11 July 2001)

Fiji Islands - GMR Muhammed & Sons Pty Ltd v Chand - Pacific Law Materials

IN THE HIGH COURT OF FIJI

1"> At Suva

Civil Jurisdiction

CIVIL ACTION NO. 0235 OF 2000

Between:

G.M.R. MUHAMMED & SONS (PTY) LTD.

Plaintiff

- and - <1">

SUSHIL CHAND/p>

Defendant

Ms. P. Narayan for the Plaintiff Mr. K. Muaror and Ms. G. Olsen for the Defendant

JUDGMENT

This is a contested applon under Or.14 of the High Court Rules for summary judgment. The circumstancetances giving rise to the claim may be briefly summarised. The plaintiff company which is in the business of selling hardware and timber materials supplied under account in 1999 and 2000, hardware building materials to the defendant who is in the business of selling office furnitures. At the time of issuance of the Writ the defendant’s account with the plaintiff company stood in excess of $32,000.

In or about th February 2000 the defendant issued to the plaintifintiff company a business cheque in the sum of $23,500 in part-payment of the account. The cheque was never presented however upon the defendant’s request due to lack of funds. The defendant deposes however that his company `made a commercial decision (whatever that means) to withhold payment of the funds until (a) discrepancy (concerning the materials supplied) was resolved and proper adjustments made to the amount (owing)’.

ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> The `discrepancy’ which the defendant deposed is to the effect that a substantiaunt of the building materiaterials supplied by the plaintiff company `were not ISO9002 compliant’ as they should have been. No independent evidence however was provided in the defendant’s affidavit to support his bare assertion that such a requirement was a term of the contract nor was the matter raised in any subsequent correspondence exchanged between the parties as might be expected. No offer has been made to return the `defective’ materials which in any event, appears to have been utilised by the defendant.

Indeed the Statement of Defence filed by the defendant is singularly silent on any counterclaim which one would have expected to find, if there was any merit at all in the defendant’s so-called defence. Whatsmore the defendant’s cheque post-dates by one month the supply of the aforementioned `defective’ materials.

On the contrary, the affidavit in reply of the Managing Director of taintiff company clearly identifies the various materials suls supplied to the defendant and the New Zealand manufacturer of the materials Fletcher Wood Panels Limited Hamilton which has been certified : `AS/NZS ISO9001 : 1994' compliant in respect of `the design, manufacture and supply of medium density fibreboard hardboard and particle board’.

It is clear law that in ofor a defendant to successfully resist a summary judgment there must be raised an arguable able defence which is supported by deposed facts.

Having carefully considere competing affidavits and the plaintiff company’s annexures including the defendant’s cheq cheque, I am satisfied that the defendant has no arguable defence to the plaintiff company’s claim and accordingly there will be judgment entered in favour of the plaintiff company in the sum of $32,007.19. In the absence of any agreement or warnings as to the payment of interest however interest at 4% p.a. only is allowed. The plaintiff company is further awarded costs summarily assessed at $250.00.

D.V. Fatiaki

JUDGE

At Suva,

11^th July, 2001.

HBC0235J.00S