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Transtel Ltd v Fernando [2009] FJHC 264; HBC305.2006 (26 November 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION


CIVIL ACTION NO. HBC 305/2006


BETWEEN:


TRANSTEL LIMITED
a limited liability company situated at Garden City, Grantham Road, Suva.
Plaintiff


AND:


MICHAEL FERNANDO
t/a Ric’s Kava Time of 68 Main Street, Nadi
Defendant


Before:Master Anare Tuilevuka


Counsels: Lajendra Law for the Plaintiff
In Person – Defendant


Date of Hearing: 13th November, 2009
Date of Ruling: 26th November, 2009


RULING


INTRODUCTION


[1] Before me is the Plaintiff’s ("Transtel") application for Summary Judgment which was filed on the 12th day of January 2009. The Orders that the Plaintiff seeks are as follows:

[2] The Affidavit of Litiana Seruvatu is filed in support of the application. The Defendant ("Fernando") has not replied to Litiana Seruvatu’s Affidavit.

BACKGROUND


[3] Transtel’s Writ and Statement of Claim were filed on 04th October 2006. When Fernando did not file a Statement of Defence within the time stipulated in the High Court Rules, Transtel entered a default judgment against Fernando on 07th February 2007. The sealed judgment reads as follows:

"NO STATEMENT OF DEFENCE having been filed and served by the Defendant Michael Fernando t/a Ric’s Kava Time IT IS THIS DAY ADJUDGED that the DEFENDANT do pay the Plaintiff the sum of $59, 138.75 plus bailiff costs of $25.00 and interest at 5% per annum from the date of Writ until date of Judgment as prayed in the Writ of Summons with costs on an indemnity basis"


[4] A Writ of Fieri Facias was issued by the High Court at Lautoka on 26th April 2007 shortly after to enforce the default judgment.

[5] However, on 26th November 2007, the Defendant in person filed an application to set aside the default judgment and to stay execution. That application was opposed but on 25th February 2008, Master Udit gave an Order to set aside judgment with $350 costs to the Plaintiff.

[6] The defendant then filed a Statement of Defence on the 12th day of March 2008 and in due course, Summons for Directions was duly filed and Orders in its terms were entered on the 04th day of June 2008. The Plaintiff has since filed its Affidavit of Documents. None has been filed by the Defendants

[7] On the 11th day of September 2008, Lajendra Law filed a Notice of Change of Solicitors taking over from Chan Law to act for the Plaintiff. This was followed by the current application which was filed on 13th January 2009.

[8] On 24th February 2009, Master Udit granted the Plaintiff leave to serve the current application by way of advertisement in the Fiji Times. The Plaintiff has since complied and an Affidavit of Service filed herein by the Plaintiff shows that the application was duly advertised in the Fiji Times issue of 2nd April 2009.

SERVICE


[9] I did point out to Mr. Lajendra at the outset of the hearing of his application that the returnable date on the advertised Notice was 12th day of May 2009. On that day of course, there was no sitting at the High Court in Lautoka as all judicial appointments in Fiji had been revoked by His Excellency the President of Fiji pursuant to the Revocation of Judicial Appointments Decree 2009 (Decree No.4).

[10] Mr. Lajendra submitted however that once the Notice was advertised, Fernando effectively is deemed to then have notice of the pendency in Court of the summary judgment application. He argues that the fact that there was no court sitting on the 12th of May 2009 was irrelevant because it was incumbent on Fernando nonetheless to inquire at the Lautoka High Court Registry.

[11] I do note that Transtel has had problems serving its application for Summary Judgment. The Affidavit of Litiana Seruvatu filed on 26th February 2009 in support of Transtel’s application for substituted service deposes that Fernando is no longer carrying on business at his last known address on 68 Main Street, Nadi. Some of Fernando’s neighbors also do not know who Fernando is. Others simply do not know where he is.

[12] I am mindful that if I was to order re-service of the application, Transtel will in most likelihood end up filing another application for substituted service. For that reason, I will accede to Lajendra’s submissions on the point.

THE PLAINTIFF’S CLAIM


[13] On 1st October 2005, Transtel entered into a Merchant Service Agreement ("Agreement") to supply Fernando certain electronic products and which Fernando was to ail reseller of the said product.

[14] Upon entering into the said Agreement, Transtel began to raise bi-monthly invoices (15th and 30th/ 31st of every month). However, Fernando soon fell in arrears on payments to Transtel. The following invoices are alleged to remain unpaid as of today:

[15] On 22 May 2006, a demand letter was sent by Transtel to Fernando.

[16] Fernando did not make arrangements to clear the outstanding sum. And Transtel has had to engage the services of a solicitor to send a further demand notices and ultimately to institute this Court action.

Law


[17] Where there is no defence to a claim, or where any defence raised will merely have the effect of delaying judgement, the summary judgment procedure under Order 14 is available to the Plaintiff who wants a quick judgment and avoid the expense of a full trial.

[18] The Plaintiff however must prove each claim clearly. And if the defendant is unable to set up a bona fide defence or raise an issue against the claim which ought to be tried, the Plaintiff will succeed in his application (see Carpenters Fiji Ltd –v- Joes Farm Produce Ltd (unrep) Civil Appeal No. ABU 0019/2006 at page 9).

[19] A defendant may show cause against a plaintiff’s claim on the merits. He may show that he has good defence on the merits or there is a dispute as to the facts which ought to be tried or that there is a difficult point of law involved (Carpenters Fiji Ltd –v- Joes Farm - supra).

[20] It is generally incumbent on a defendant resisting summary judgment to file an affidavit. The defendant’s affidavit must deal specifically with the plaintiff’s claim and affidavit. It must also state clearly and precisely what the defence is and what facts are relied on to support it (Carpenters Fiji Ltd –v- Joes Farm – supra, see also Fiji Development Bank v Arun Kumar Singh & Another Civil Action No. HBC 56 of 2003 as per the Honourable Master, Mr. J.J. Udit at page 5).

[21] If the Defendant has not filed an affidavit, but has filed a defence, the Court in exercising the discretion must consider the issues raised in the defence to see whether it has merits and is not just a sham defence to delay judgment or avoid the necessity of showing cause by Affidavit (see the Fiji Court of Appeal in Magan Lal Brothers Ltd –v- L.B. Masters Civil Appeal No: 31/84 to see also Halsbury’s Laws of England (4th Edition) volume 37 para 413 – 415, notes 4.

[22] In this case before me, Fernando has filed a defence. I must therefore assess whether that defence has merits.

The Defence


[23] The Statement of Defence under paragraph 2 admits that it is trading as an unregistered entity and had signed the Agreement with Transtel to retail electronic generated PIN receipts and prepaid electronic telecommunications products in an electronic format.

[24] Paragraph 3 denies owing the sum of $59,138.75 but admits owing the sum of $1,500.00 Paragraph 4 of the Statement of Defence, the Defendant has pleaded that different amounts were claimed by the Plaintiff on various instances. He, however, admits that he had received the demand that was sent from Chan Law on 12 September 2006 for the sum of $59,138.75.

[25] Mr. Lajendra submits that Fernando’s defence is but a bare denial of all that is pleaded in the claim which is devoid of merit. Mr. Lajendra argues that Fernando has not pleaded any other aspect in the defence to justify that he does not owe $59,138.75.

[26] I have perused the defence. Fernando pleads that he is indebted to Transtel only to the sum of $1,500. He also pleads that the amount of arrears claimed by Transtel is not in accordance with "merchant copies minus seven percent commission for Defendant".

[27] In contrast, Annexure "B" of the Affidavit of Litiana Seruvatu, Transtel’s Commercial Manager sets out in detail a breakdown of the total outstanding invoices. The total of all those invoices comes to the figure of $59,138.75. She attaches all these invoices to her Affidavit.

[28] Fernando has failed to challenge these invoices. Mr. Lajendra pleads that therefore there is no merit in Fernando’s defence which then ought to be struck out as a matter of course.

[29] Notably, Fernando alleges in his defence that different amounts were claimed by Transtel (firstly it was $89,871.13 which was then reduced to $61,908.83 and then $59,138.75).

[30] Mr. Lajendra concedes that this was due to an accounting problem but that his client (Transtel) has, after thoroughly checking its system, "identified the technical faults which had resulted in some of the invoices being raised twice" and as he puts it in his written submissions:

"Those errors had been corrected and subsequent thorough checks were carried out and no fault was identified. Thereafter the sum of $59,138.75 wad demanded on 12 September 2006 which the Defendant accepts in his defence receiving. The Defendant has not in any manner whatsoever challenged that particular demand".


[31] He refers to paragraph 12 of the Affidavit of Litiana Seruvatu which is set out hereinbelow:

"As a further response to paragraph 4 of the Statement of Defence, I say that a fault had occurred in the Plaintiff’s system around November, December 2005 and January 2006. As a result of the fault some of the Defendant’s invoices doubled up. The error was noted and corrected after sending the letter dated 20th April 2006. The Statement dated 30th April 2006 was sent to the Defendant showing the amended total sum of $61, 980.83 but he failed to seek clarification on the sum stated in Statement dated 30 April 2006. A few months later another thorough check was carried out on the system and it was noted that on April Invoice amount had been entered twice in the system resulting in the incorrect total of $61, 890.83. After correcting it, another Statement dated 2 August 2006 with the correct sum of $59,138.75 was sent to the Defendant. After numerous checks on the system we have confirmed that no other fault has occurred to date and the sum of $59,138.75 is the correct sum. The Defendant, however, failed to seek clarification by requesting a full and proper accounting of the sum stated in this Statement to date but proceeded to pay whatever amount suited him" (the payment made by the Defendant is verified in annexure "F" of the Affidavit in Support under the column ‘Amount Paid’).


[32] Mr. Lajendra highlights that a demand notice dated 12th September 2006 had been served by Transtel to Fernando. That effectively put Fernando on notice of the total amount outstanding with Transtel. He did not make any effort to contact Transtel or to dispute the said notice. Mr. Lajendra.

CONCLUSION


[33] The admission in Seruvatu’s Affidavit that there was some accounting error which led to two inadvertent exaggerated initial demands to Fernando, and the fact that Fernando himself had raised this in his defence would seem to raise a triable issue.

[34] I also gather from the Affidavit of Seruvatu that Transtel was able to rectify this and present the correct demand to Fernando after some internal audit.

[35] I also note, yet again, that Fernando’s whereabouts are not known. Some of his neighbours do not know of him. And those who know of him, according to a letter dated 19th February 2009 by Suresh Maharaj & Associates, a respectable law firm in Lautoka, have advised that Fernando has sold his business. Some others say he is away overseas.

[36] I accept the above as prima facie evidence of conduct which, when viewed in context against the history of the proceedings in this case, merely reinforce my suspicions that the defence put forward by Fernando is, but a sham, to delay judgment (see the Fiji Court of Appeal in Magan Lal Brothers Ltd –v- L.B. Masters supra).

[37] Accordingly, I order as follows:

A. Tuilevuka
MASTER


At Lautoka
26th November 2009.

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