Australia & New Zealand Banking Group Ltd v Buksh [2002] FJHC 318; HBC0232.2001 (11 October 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 0232 OF 2001

Between:

AUSTRALIA & NEW ZEALAND BANKING
GROUP LIMITED
Plaintiff

And:

LULU BUKSH a.k.a MIRZA NAMRUD BUKSH
Defendant

Ms. B. Narayan for the Plaintiff
Mr. A. Bale for the Defendant

RULING

On 30th May 2001 the plaintiff bank issued a Writ against the defendant claiming the liquidated sum of $26,361.09 for monies advanced interest accrued and bank fees charged.

On 12th June 2001 the Writ was personally served on the defendant. A month later on 11th July 2001 judgment was formally entered against the defendant in default of defence.

Thereafter the action went to sleep for a period of 6 months until it was resurrected by the defendant’s solicitors who filed an interlocutory motion on 29th January 2002 seeking inter alia to set aside the default judgment. The motion was supported by an affidavit deposed by the defendant and annexed a proposed Statement of Defence and Counterclaim in which the defendant simply denies being indebted to the plaintiff bank and counter-claims an amount of $35,500 for services rendered by the defendant whilst acting as agent and auctioneer of the plaintiff bank `from 1993 till 2001'.

In this latter regard it should be pointed out that the limitation period for a claim based on an unsecured debt is 6 years (see : Section 4(1)(a)he the Limitation Act Cap.35).

Be that as it may, in support of the counter-claim the defendant’s affidavit exhibits numerous ls from the plaintiff bank appointing and/or authorising theg the defendant to do various things on its behalf including the eviction of squatters and auctioning real estate properties for an agreed commission. This may evidence the formation of a contract but is certainly not evidence of performance by the defendant.

Indeed notable by its absence is any correspondence emanating from the defendant setting out details of the particular services he claims he performed for the plaintiff bank. No accounts appear to have been rendered by the defendant nor was any itemised Bill of Costs raised by the defendant as might be expected in the circumstances. Similarly no details or breakdown (by project) has been attempted or proferred in the defendant’s counterclaim other than a vague reference to hours worked and an hourly rate which is also nowhere evidenced in the correspondence.

Instead, in the first annexure to the defendant’s affidavit which is a letter signed by him referring to the present action and addressed to the plaintiff
banks solicitor’s, one finds in the very first sentence the following rather revealing statement : `I acknowledge the amount owing to the bank ......’

The affidavit of a senior officer of the plaintiff bank specifically deposes by way of reply to the defendant’s counterclaim that `(the defendant) has not evicted any of the tenants to date’ ; `...... that the defendant did not attend to the matter and the property (in Dreketi, Vanua Levu) has not been sold to date’ ; and `the defendant has not fulfilled the plaintiff’s requirements (concerning the sale of the Tom Tucker Place Ltd., Sigatoka).’ The affidavit further deposes : `...... the defendant’s allegations are not relevant to the debt being claimed which debt is not denied. The allegations are merely `red herring’. The plaintiff will defend the defendant’s allegations and claim if properly instituted.’

I accept that there is no irresistible connection between the plaintiff bank’s claim for borrowings and interest and the defendant’s counter-claim for fees for services rendered, which would render it unjust to allow the plaintiff bank’s claim to proceed without taking the defendant’s claim into account such as might occur in a defence by way of set-off. Indeed in my considered view the separation of the claims would conduce to a more speedy resolution than to allow it to proceed in the present albeit permissible form.

Additionally, the defendant has neither mentioned or attempted to excuse or explain the 6 month delay in bringing the present application which although not fatal to the application, is nevertheless, an important factor in the exercise of the Court’s discretion to grant the defendant the relief he seeks.

Having carefully considered the opposing affidavits and annexures and the proposed Statement of Defence and Counterclaim, I remain unpersuaded that the defendant has a meritorious defence to the plaintiff bank’s claim and the application is accordingly dismissed with costs which are summarily assessed at $250.00.

(D.V. Fatiaki)
Chief Justice

At Suva,
11th October, 2002.