Petroleum and Gas Company (Fiji) Ltd v Garment Processing (Fiji) Ltd [2007] FJHC 5; HBC286.2006 (2 March 2007)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. 286OF 2006

NO. 38 OF 2007

BETWEEN

PETROLEUM AND GAS COMPANY (FIJI) LTD.
Plaintiff

AND

GARMENT PROCESSING (FIJI) LTD.
1st Defendant

AND

FREDERICK JOHN SUTCH
2nd Defendant

Appearances: Ms Natasha Khan for the plaintiff
No Appearance for the defendants

Date of hearing: 02 March 2007
Date of judgment: 02 March 2007

Ex-tempore Judgment

[1] The plaintiff applies by way of a summons dated 13 February 2007 for summary judgment against the defendant in the sum of $39, 146.02. $5,000.00 of the original debt claimed has been paid by the defendants. In support of the application the plaintiff relies on the affidavit of Ajay Punja sworn on 31 January 2007. There is no opposing affidavit by the defendants and no defence filed to the claim.

The test

[2] Great care should be exercised in granting summary judgment and should not be exercised unless there is no real question to be tried (Fancourt –v- Merchantile Credits (1983) HCA 25; 1988 154 CLR 87 at 99).

[3] In regard to the purposes of Order 14, I adopt the passage in the judgment of Parker LJ in Home & Overseas Insurance Co. Ltd. –v- Mentor Insurance Co. (UK) Ltd. (1989) 3 All ER 74 at 77:

"The purpose of Order 14 is to enable a plaintiff to obtain a quick judgment where there is plainly no defence to the claim. If the defendants only suggested defence is a point of law and the Court can see at once that the point is misconceived the plaintiff is entitled to judgment. If at first sight the point appears to be arguable but with a relatively short argument can be shown to be plainly unsustainable the plaintiff is also entitled to judgment."

Consideration

[4] In this case, the defendants have admitted the debt – annexures 1 and 2 of Ajay Punja’s affidavit. There is no defence filed. In my view there is plainly no defence to the claim. No point of law or disputed fact has been raised at all. The plaintiff is entitled to summary judgment.

Interest

[5] In Raj Krishna Construction Ltd. –v- Waisake Ravutubutu HBC 220 of 2006, Finnigan J awarded interest pleaded in sum of 13.5 per cent per annum. This was adopted by Connors J in HBC 31 of 2006L Raj Krishna Mudaliar –v- Rt. Jovesa & Housing Authority. I see no reason to diverge from those decisions and award plaintiff the 13.5 per cent interest per annum claimed from April 2006 till today.

Costs

[6] The plaintiff seeks costs on an indemnity basis and in support of that application relies upon letters written on behalf of the plaintiff which are clearly endorsed in accordance with the principles of Calderbank –v- Calderbank – letters of 6 November 2006, 7 December 2006 – on file. I see no reason not to allow costs on an indemnity basis.

Orders

i) Judgment for plaintiff summary of $39,146.02

ii) Defendants to pay plaintiff interest on judgment at rate of 13.5 per cent from April 2006 to date

iii) Defendants are to pay plaintiff’s costs as agreed or taxed on an indemnity basis taking into account the principles of Calderbank –v- Calderbank.

[7] That concludes this action.

Gwen Phillips
JUDGE

At Lautoka
2 March 2007