Credit Corporation (Fiji) Ltd v Matawalu [2002] FJHC 15; Hbc0407j.2000s (26 July 2002)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 407 OF 2000S

Between:

CREDIT CORPORATION (FIJI) LTD
Plaintiff

and

SAMUELA MATAWALU
Defendant

M. Arjun for the Plaintiff
K. Muaror for the Defendant

JUDGMENT

This is an application by the Plaintiff for summary judgment brought pursuant to the provisions of RHC O14.

At the commencement of the hearing Mr. Muaror sought leave to withdraw. He advised me that he had been unable to obtain instructions from his client, a practising barrister and solicitor, despite reminding him that the hearing of this application was pending. Mr. Muaror told me that he had been unable to contact his client whose address was unknown to him and who is apparently not connected to the telephone. He last saw his client at the Fiji Law Society Conference earlier this month when he promised to contact Mr. Muaror. He did not do so. In the circumstances I gave leave to Mr. Muaror to withdraw. I also decided to proceed with the application in the Defendant’s absence since it seemed clear that he knew of the application but had decided not to appear.

The writ was filed in September 2000. The Plaintiff is a finance company. It alleges that in March 1996 the parties entered into an asset purchase agreement in respect of a Mitsubishi Pajero motor vehicle registration number CY685. The total amount borrowed was $91,536 which was to be repaid by 48 monthly instalments of $1907. The Plaintiff’s case is that the Defendant fell into arrears with the repayment following which the motor vehicle was repossessed and sold. The proceeds of sale only amounted to $23,430 leaving (after taking into account rebates and costs) a shortfall of $23,653.38 owed by the Defendant to the Plaintiff.

The Statement of Claim is supported by an affidavit by Uday Raj Sen, the Plaintiff’s Business Development Manager, filed on 19 April 2002 together with this application.

On 6 November 2000 a Defence was filed. The Defendant’s case is that the Plaintiff failed properly to account to the Defendant for the manner in which the motor vehicle was repossessed and sold and that it had not disposed of the vehicle at a fair market value.

Mr. Sen’s affidavit exhibits a copy of the asset purchase agreement, a demand letter dated 23 July 1998, an acknowledgement of debt and an undertaking to repay by Defendant dated December 1998, a demand for the amount now claimed dated August 2000, a letter dated August 2000 containing details of how the amount demanded was calculated and copies of three advertisements for a “Grand Motor Vehicle Auction” including, among 22 other vehicles, a Mitsubishi Pajero Registration Number CY, which I take to be that previously owed by the Defendant, and which appeared in the Fiji Times on 29 September 1999, 1 October 1999 and 2 October 1999.

While there is little doubt that the mortgagee of property has a duty to take reasonable steps to ensure that the repossessed property is sold at a reasonable price there is nothing before me apart from a bare pleading to suggest that the Plaintiff did not discharge that duty imposed upon it. The evidence filed by the Plaintiff suggests the contrary and it will be borne in mind that the Plaintiff had every incentive to attempt to recover the total amount owed to it when it decided to repossess and sell since had it been successful in so doing it would not have needed to resort to these proceedings to recover a balance. If the sum actually secured at the auction does not appear to be very large that may reflect the condition of the market, the condition of the vehicle, the “as is” basis upon which these auctions have to be conducted or a combination of all three.

In my opinion the Plaintiff’s claim is clear. On the other hand I do not find that the Defendant has advanced any fairly arguable point which ought to be tried. In the circumstances the application succeeds and there will judgment for the plaintiff as claimed.

M.D. Scott
Judge

26 July 2002