Fenech v Khan [2004] FJHC 404; HBC0215.2001 (16 April 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0215 OF 2001L

BETWEEN:

MICHAEL FENECH
Plaintiff

AND:

IFTAKHAR IQBAL AHMED KHAN
Defendant

Counsel for the Plaintiff: Mr. J. Sharma
Counsel for the Defendant: Mr. H. A. Shah

Date of Hearing: 1 April 2004
Date of Judgment: 16 April 2004

RULING

In this matter I made orders on 9th March 2004. Order 2 made on that day provided: -

“The defendant is granted leave to defend the proceedings conditional upon him filing with the court full and complete details by way of affidavit of all work performed for the plaintiff and allegedly offset for the sum of Twenty Three Thousand, Three Hundred and Thirty Four Dollars ($23,334.00) and including all relevant files by 3.30pm on 19 March 2004.”

By affidavit filed on 19^th March 2004 and sworn by the defendant, he sought to comply with that order.

A further affidavit sworn by Mohammed Shariff Koya and filed on 23^rd March 2004 does not relate to the execution of the order and accordingly is not read for the purposes of this ruling.

Paragraph 6 of the defendant’s affidavit says: -

“That on the 13^th day of July 2000, when the plaintiff executed confirmation to contra the monies owing by me to him for legal works done for him by my firm, the plaintiff collected all his files from my office saying that since I was based in Lautoka Office the plaintiff will not be able to travel to Lautoka every time when he needs me as it would be very expensive for him.”

Annexure IIAK2 of his affidavit, which is a letter from the defendant to the Fiji Law Society, says in paragraph (e): -

“After writing to your good-self he approached my office several times requesting for his files.”

And further in paragraph (f): -

“That he was advised that he should settle all the costs and then only he can take all his files.”

And the last paragraph says: -

“We are willing to release all the files upon payment of our costs.”

This letter is dated 14^th February 2001 and purports to be a reply to the Law Society with respect to a letter of 21^st November 2000 to that Society from Michael Fenech.

The monies were to be “paid” pursuant to the authority dated 13^th July 2000.

Why was Mr. Fenech requesting the Law Society’s assistance for the release of his files on the 21^st November 2000 when the defendant says that the files had been released upon the costs being settled, which occurred on 13^th July 2000?

No explanation is given as to why there are no copies of tax invoices, time costing or other appropriate business records available that may have been annexed with respect to the costs allegedly outstanding and offset. The narratives furnished are indeed a far cry from what one would expect to be furnished from a legal practitioner.

It is unclear why the defendant has seen fit to annex Exhibit IIAK3 to the affidavit when all previous evidence on behalf of the defendant is that the sum of Ten Thousand Dollars ($10,000.00) was in fact not advanced and that only the sum of Thirty Thousand Dollars ($30,000.00) was advanced by Mr. Fenech to the defendant. This letter also suggests that an agreement was reached in early 2002 to offset the sum of Ten Thousand Dollars ($10,000.00) whereas it is alleged that the authority of July 2000 satisfied all outstanding costs.

The inadequacies of the material furnished and the inconsistencies that have been highlighted, are such that the court is unable to accept the affidavit of the defendant filed on 19^th March 2004 as a satisfaction of the court’s order of 9^th March 2004. Accordingly, as the defendant has failed to comply with the order, the orders sought in the plaintiff’s Summons filed on 19^th September 2001 are hereby granted.

The Orders of the Court will therefore be: -

1. Judgement for the plaintiff in the sum of Thirty Three Thousand, Three Hundred and Thirty Four Dollars ($33,334.00);
   
2. Defendant to pay interest on the sum of Thirty Three Thousand, Three Hundred and Thirty Four Dollars ($33,334.00) from 31^st July 2001 at the rate of 10% per annum;
   

3. The defendant to pay the plaintiff’s costs.

JOHN CONNORS
JUDGE

AT LAUTOKA
16 APRIL 2004