Singh v Westpac Banking Corporation [2005] FJHC 637; HBA0012.1999 (15 July 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

ACTION NO. HBA0012 OF 1999

BETWEEN:

RANJEET SINGH
APPELLANT

AND:

WESTPAC BANKING CORPORATION
RESPONDENT

Mr D. Kumar for the Appellant
Mr Rabuku for the Respondent.

Date of Hearing: 12 July 2005
Date of Judgment: 15 July 2005

JUDGMENT OF FINNIGAN J

This is an appeal against a decision of a Magistrate. The Appellant challenges the decision on 6 separate grounds and reserved the right to file further grounds before the hearing. No new grounds were filed, although Counsel for the Appellant did traverse factual and evidential matters during his submissions. The main ground identified by Counsel in summary is that the judgment is not regular in as much as it made no award to the Plaintiff on its claim and did not give judgment in favour of the Defendant [the Appellant]. Other grounds included an assertion the Magistrate had exceeded his jurisdiction by entertaining the matter when the potential total claim [i.e. principal interest and costs] exceeded $15,000.00. Associated with this is a submission that the Magistrate erred in not separating principal from interest in his judgment. Counsel for the Appellant cited and relied on a useful judgment of this Court Govind Holdings Ltd –v- Kalia Nand HBA0015 of 1998L, Judgment 17 March 2000.

Counsel for the Respondent made full submissions in reply, to the effect that the Court should reject each of the actual grounds of appeal, which he identified as amounting to four.

In the Magistrate’s Court the Plaintiff, a trading bank, sued its customer for monies outstanding on a loan. For security the bank had a Crop Lien and a Bill of Sale. The customer [the Appellant in this Court] did not make regular payments and the bank recovered its money by enforcing the Crop Lien and obtaining payment from the Fiji Sugar Company and by selling the customer’s car which it had seized under the Bill of Sale.

Its started its action in 1994, suing for $7,912.41 together with interest on that amount at the rate of $2.53 per day from 7 July 1994 until the date of judgment. By the time the matter came on for hearing [28 August 1998] the bank had not only been fully reimbursed by the cane payments from the Fiji Sugar Company, it owed the customer a refund. Contributing to this situation was the yield from the forced sale of the car. What happened there was this. The car was involved in an accident and was taken for repairs. The repairer claimed $4,200.00 and the customer could not pay. The repairer held the car. The car was insured and a settlement was negotiated whereby the Insurer paid in full settlement of the repair account $3,000.00 to the bank. The banks’ and the repairer’s attempts to find a buyer for the car failed and the repairer still needed $4,200.00, the amount of his bill. His bid of $4,700.00 was accepted by the bank as a credit in the loan account and the repairer then owned the car. The customer claimed its true value was $15,000.00. Even the repairer, who gave evidence, valued it at $8,000.00 to $10,000.00.

So, when the bank sued the customer counter-claimed. He alleged the car had been worth $15,000.00, he acknowledged that the bank had received $3,000.00 which it had credited towards his loan debt and he alleged that the bank had failed to pay the repairer’s bill and had acted negligently in accepting the repairer’s tender of $4,700.00. On that basis he sought judgment against the bank for $10,300.00.

So, at the date of the trial the Plaintiff had recovered its loan and outstanding interest and was in debt to the Defendant. The Defendant counter-claimed for $10,300.00. The record shows there had been adjournments of the hearing while the parties negotiated settlement. Finally it was the Defendant who told the Court there would be no settlement. The matter came on for trial. The bank’s position now is that it came to Court with no cause of action, the settlement referred to being an attempt to settle the counter-claim. Yet at the trial the Plaintiff presented its case first and its Manager gave evidence. He gave evidence in some detail and concluded by telling the Court that the Debtor had paid in full and was indeed in credit on his loan account for $725.00. The Defendant and his witness gave evidence. Their evidence was mostly about the repair and sale of the car. His witness was the car repairer, now the owner of the car.

The Magistrate’s Decision

The learned Magistrate gave a credible even creditable decision. First he wrote it out by hand. Then it was typed. Eventually it was typed again for this appeal. Its opening sentence and paragraph is:

“This claim is of the Plaintiff bank against it’s customer for loan outstanding”.

This statement is followed by five paragraphs traversing the evidence about seizure and sale of the car. The decision then goes on:

“I am satisfied that the bank in the circumstances took all reasonable actions to recover as in any other case a debt due under a Bill of Sale.

After perusal of all exhibits and evidence as a whole on balance of probability, I am satisfied that the bank took all reasonable action necessary to recover it’s debt.

In evidence the Plaintiff’s witness accepted 2 payments as cane proceeds were paid but not credited by the bank. These were $362.00 and $364.00 total $725.00.

The Defendant also says this claim was immature. The Plaintiff was entitled to enforce it’s repayments as per their agreement. It was not disputed by the Defendant that his account with the bank was not up-to-date.

In the circumstances the counter-claim is dismissed with cost to Plaintiff”.

The learned Magistrate then noted that the Plaintiff admitted owing $725.00 to the Defendant as payments not credited. For reasons which he stated he awarded costs to the Plaintiff of $725.00.

My Decision

Even with those references to the Plaintiff’s claim, I am satisfied after several readings of the decision that it was a decision of the Defendant’s counter-claim. I conclude that it was not the intention of the Magistrate to decide the Plaintiff’s claim. This is despite the opening sentence of his decision. I take that sentence to mean that the action was before the court as a claim by the Plaintiff. The Plaintiff’s evidence clearly stated, after giving details of the history of the transactions, that the Defendant no longer owed it any money. What the Magistrate omitted to do was dismiss the claim or have the Plaintiff withdraw/discontinue it.

The whole of his judgment leads up to the one conclusion which he did express, his dismissal of the counter-claim. The Plaintiff’s claim was not in issue. Its evidence however was needed for the counter-claim and for reasons that are beyond me the Plaintiff chose and was allowed to give evidence before the Defendant. It did have the effect of putting the counter-claim in its true perspective.

I cannot grant any of the relief sought by the Appellant. The counter-claim was dismissed on the evidence of the witnesses, and the Magistrate had a better opportunity than I to evaluate them. Inasmuch as this is a re-hearing, I complete the hearing by dismissing the Plaintiff’s claim. I otherwise re-affirm the Magistrate’s decision.

On this appeal costs follow the event. I assess costs summarily at $800.00 to the Respondent.

D.D. Finnigan
JUDGE

At Lautoka
15 July 2005