Credit Corporation (Fiji) Ltd v Tora [2001] FJHC 98; Hbc0462j.2000 (7 December 2001)

Fiji Islands - Credit Corporation (Fiji) Ltd v Tora - Pacific Law Materials

IN THE HIGH COURT OF FIJI

(AT SUVA)

CIVIL ACTION NO. 462 OF 2000S

Between:

CREDIT CORPORATION (FIJI) LIMITED

Plaintiff

and <1">

APISAI VUNIYAYAWA TORA

and

MELANIA GANIVITI TORA

Defendants

M. Arjun for the Plaintiff

S. Krishna for the Defendants

JUDGMENT

On 18 October 2000 the Plaintiff issued a writ and Statement of Claim against the Defendants seeking judgment against them for the amount of $41,340 representing arrears of instalments due under an asset purchase agreement between the Plaintiff and Tuwawa Transport Limited, guaranteed by the Defendants.

On 10 January 2000 a Defence wled. The defendants admitted executing a guarantee anee and admitted that Tuwawa Transport Limited was in receivership. They dt admit the amount cunt claimed and put the Plaintiff to strict proof. In paragraph 8 of the De ince it was pleaded that tll terms of the agreement were not satisfactorily set out in the Statement of Claim. bsp; It was alsimed that that the Defendanre discharged from their obligations under the agreement whnt when the goods covered by the agreement were seized by the Plaintiff.

On 7 March 2000 this summons under RHC O 14 was issued supported by an affidavit by Uday Raj Sen, the Plaintiff’s business development manager. Mr exhibited a copy of thef the agreement. He deposed that wherea paye payments scheduled under the agreement amounted to $79,920 only 2 instalments together worth $3,330 had been paid. He avethat at the commencemenceme the action $41,340.82 was owed by the Defendants. Hep; He pointed oat under nder clause 24 of the agreement the guarantee was nuing.

On 28 November 2001 the application came on for hearing. No evidence had biled by t by the Defendants in answer to Mr. Sen but Mr. Krishna filed and spoke to a careful and concise written submission presented on the day of the hearingan>

Mr. Krishna first pointed out that it is not normal for an Order 14 summons to be filed after a Defence has in fact been lodged. He however ackdged that that the filing of a Defence does not debar an application for summary judgment. In fin Fiji it is relativeatively common for Order 14 proceedings to be commenced after a Defence has been filed. The questionr allhether orer or not the defence disclosed by Defendant whether by affidavit or pleadingading is arguable, not whether a document led “Defence” has been filed.

Mr. Krishna next suggested that the Statement of Claim wanted particularity andrred to paragraph 8 (a) of ) of the Defence. While I agree thatStatementement of Claim does not contain all the detailed provisions of the agreement no omission affecting the liability of the Defendants to repay the sum owed was referred to. Further the dants have neve never ever asked for further and better particulars of the Statement of Claim in the fourteen months since it waed, as might have been expected if they were in any way embarrassed by the pleading. bsp; I do ind any merit init in this argument.

The main thrust of Mr. Krishna’s submission arose from clause 6 (ii) (b) (ii) of the agreement and paragraph 9 of Mr. Sen’s affidavit.

Under the clause an owner who has repossessed the goods must sell them at the best priceonably available and must oust offset that price against the amount owed by the hirer. Mr. Kriseferred to the $57e $57,000 value of the goods on 31 December 1995 as set out in the agreement and suggested that a resale price of only $3,500 obtained on 20 Or 1999 was a clear breach of the owner’s obligations under nder the clause.

While superficially attractive I am saed that this argument cannot succeed. In the first plst place tiere is no evidence whatever that the owner did not do its best to secure the best price, something which it was obviously in the owners interests as well as the hirers to achieve. Seconthereno evidence at a at alat all as to the condition of the goods when they were repossessed in July 1997, that is 18 months after bsold to the hirer. Thirdly, as dy seen, the vthe value of the agreement was just unde under $80,000. If $3,500 for the value o the goods is offset against that sum minus $3,300 repaid then a balance remains of roughly $73,200. Since the Plaintiffsonly ilaiming $41,340 they are apparently forgoing a sum of $31,860. Since the goods oods were only worth $57,000 to begin withDefendants cannot reasonably claim to be out of pocket as a result of any default on the pahe part of the Plaintiff.

Inpinion this is the clearest possible case of guarantors failing to live up to their contracntractual obligations. Despite Mr. Ka’s valiant eant efforts I can find no arguable defence to the claim. In the circumstances theil will be judgment for the tiff as prayed.

M.D. Scott

Judge

7 December 2001 HBC462J.2000