Metalworks & Joinery Ltd v Fiji Islands Revenue & Customs Authority [2010] FJHC 110; HBC309.2009 (8 April 2010)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO: HBC 309 of 2009

BETWEEN:

METALWORKS & JOINERY LIMITED
Plaintiff

AND:

FIJI ISLANDS REVENUE & CUSTOMS AUTHORITY
Defendant

Mr. H. Nagin - for the Plaintiff
Mr. B. Solanki - for the Defendant

Date of Decision: 8th April 2010

DECISION

Introduction

[1] By summons to enter summary judgment dated 6 October 2009 the plaintiff Metalworks & Joinery Limited seeks an order ‘that summary judgment be entered against the defendant Fiji Island Revenue & Customs Authority in the sum of $650,000.00 together with interest thereon at the rate of 12% per annum from 10 July 2009 until full payment and costs of this action.’ The application is made pursuant to Order 14 Rule 1 of the High Court Rules 1988 and the inherent jurisdiction of this court.

[2] The delay in dealing with this application is partly due to my being away from work for health reasons.

Plaintiffs Contention

[3] The application is supported by an affidavit of Sailesh Kumar Singh who is the Managing Director of the plaintiff company.

[4] The defendant entered into a contract with the plaintiff on 24 February 2009 whereby the plaintiff agreed to do internal fitout at the defendant’s Nasese Complex at Queen Elizabeth Drive, Nasese, Suva for the sum of $6,100,960.00. The plaintiff gave an ANZ Bank guarantee in the sum of $100,000.00 to the defendant.

[5] The Plaintiff alleges that it successfully completed the project and despite the defendant’s Consultants the Yellow Architects on 24 July 2009 issuing a Practical Completion Certificate stating that the practical completion of the works was achieved on 10 July 2009, the defendant has not paid the balance sum of money certified by the Architects and is indebted to the plaintiff in the sum of $550,000.00. The defendant it is alleged also wrongly cashed the guarantee sum of $100,000.00 on 3 September 2009.

[6] Despite reminders the defendant has neither paid the said amount owed nor made arrangements to pay. The plaintiff then issued the present writ of summons on 18 September 2009 claiming the said sum of $650,000.00 plus interest from the defendant.

[7] The plaintiff says that the defendant has no meritorious defence to its claim and is praying for summary judgment in its favour in the said sum and interest.

The defendant’s reply

[8] The writ herein was filed on 18 September 2009 and the Statement of Defence and Counterclaim was filed by the defendant on 6 October 2009.

[9] (a) In the affidavit in reply filed on 21 October 2009 Dinesh Singh the Manager Projects for the defendant whilst admitting certain parts of the Statement of Claim, states that the plaintiff has neglected and failed to compete all outstanding work and has produced a schedule of all outstanding work.

(b) The defendant further says that it was unable to occupy Buildings 2 and 3 since both buildings were not ready for occupation on or about 10 July 2009.

(c) The defendant says that the Architect had not given his approval and denied that the plaintiff is entitled to the sum claimed. As for Bank Guarantee it states that the plaintiff is not lawfully entitled to the said sum but admits cashing it but not wrongly.

[10] In the Defence and Counterclaim the defendant has raised a number of defences stating that it has a meritorious defence and has a counterclaim as outlined in the said document.

Consideration of the application

[11] As can be seen from the Statement of Defence and Counterclaim filed by the defendant and the Affidavit in Reply to the application for summary judgment, the defendant seriously disputes the facts.

[12] Upon reading the affidavit of the plaintiff in support of the application it appeared to be a fairly straightforward claim. But once the Affidavit in Reply and Defence and Counterclaim were filed, they gave a completely different complexion to the case raising strong defence to the action.

The Law

[13] The purpose of Order 14

"...... is to enable a plaintiff to obtain a quick judgment where is plainly no defence to his claim". [Home and Overseas Insurance Co –v- Mentor Insurance Co (U. K) Ltd [1989]3 ALL ER 74.

[14] (a) In the Headnote the proper approach to an application of this nature is very well stated in Pemberton –v- Chappell [1987] 1 N.Z.L.R.1 where in a similar order as Order 14 it is stated thus:-

"Held: ... the High Court Rules casts onto the plaintiff the onus of convincing the Court that the defendant has no fairly arguable defence. Normally that onus will be satisfied by the plaintiffs affidavit verifying the allegations in the Statement of Claim and his oath that he believes that the defendant has no defence to the claim ... If a defence is not evident on the plaintiffs pleading and the defendant wishes to resist summary judgment, the defendant must file an affidavit raising an issue of fact or law and give reasonable particulars of the matters which he claims ought to be put in issue. Where the only arguable defence is a question of law which is clear-cut and does not require findings on disputed facts or the ascertainment of further facts, the Court may, and normally should, decide it on the application for summary judgment. But where the defence raises questions of fact on which the outcome of the cause may turn it will not often be right to enter summary judgment."

(b) The above Headnote casts upon the plaintiff ‘the onus of convincing the court that the defendant has no fairly arguable defence ’. This requirement the plaintiff in my view has not discharged on the documents and affidavits filed.

[15] In a summary judgment application the affidavit in support should observe all requirements which have to be fulfilled so that the court can assess whether there are any defences or not. That the plaintiff failed to do and it was only when the defendant responded then it was discovered that there was not a full disclosure of facts.

[16] This compliance with the requirements in an affidavit is very important in an application for summary judgment for failure to do so deprives a defendant of "the opportunity to defend the plaintiffs claim and in particular the opportunity of hearing and cross-examining the plaintiffs witnesses". Lord JUSTICE Roch in Barclays Bank plc –v- Piper [the Times 31 May 1995].

[17] Further on Order 14 proceedings Lord Justice said:-

"Order 14 proceedings were unlike applications for interlocutory injunctions in which liberty to the defendant to apply to set aside the order would be a standard term. An Order 14 judgment finally disposed of the action in a summary manner.

The purpose of the rules relating to the contents of the affidavit in support was to ensure that the plaintiffs had demonstrated that the case was a proper case for summary judgment."

[18] (a) The defendant has filed Affidavits in Reply to the plaintiffs affidavit in support of the application. There it raised a number of arguable issues and disputed the facts.

(b) The right of the plaintiff to proceed under 14 commonly be "on the ground that the defendant has no defence" to a particular claim or part of claim.

(c) In this case the defendant has filed an appropriate affidavit as is the requirement in opposing this application showing the nature of defence. What is the nature of affidavit required from a defendant has been stated thus by Lord Blackburn in Wallingford –v- Mutual Society [1880] 5 A. C. 685 at p.704:-

"I think that when the affidavits are brought forward to raise (a) defence they must, if I may use the expression, condescend upon particulars. It is not enough to swear ‘I say I owe the man nothing’. Doubtless, if it was true, that you owed the man nothing as you swear, that would be a good defence. But that is not enough. You must satisfy the judge that there is reasonable ground for saying so ... And in like manner as to illegality, and every other defence that might be mentioned. "

Conclusion

[19] The following passage from the judgment of the Court of Appeal delivered by Greig J in Australian Guarantee Corporation [NZ] Ltd –v- Mc Beth [1992] 3 NZLR 54 at 58 is apt in determining the issue before me on the facts and circumstances of this case:-

"The summary judgment procedure is a simple expeditious way to enable a plaintiff to obtain judgment where there is no real defence to the claim made see Pemberton –v- Chappell [1986] NZCA 112; [1987] 1 NZLR 1 AT 2. The essence of the procedure is the plaintiffs own verification by affidavit of his own statement of claim and the allegation made in it; Harry Smith Car Sales Pty Ltd –v- Claycom Vegetable Supply Co Pty Ltd [1978] 29 ACTR 21. There has to be balancing between the right of the defendant to have his day in court and to have his proper defences explored and the appropriate robust and realistic approach called for by the particular facts of the case: see Bilby Dimock Corporation Ltd –v- Patel [1987] NZCA 193; [1987] 1 PRNZ 84 and Cegami Investment Ltd –v- AMP Financial Corporation [NZ] [1990] 2 NZLR 308 at p.313. Although the onus is upon the plaintiff there is upon the defendant a need to provide some evidential foundation for the defences which are raised. If not the plaintiffs verification stands unchallenged and ought to be accepted unless it is patently wrong."

[20] In this case I find that the defendant properly dealt with its opposition to the application in the Defence and Counterclaim filed. In so holding I am not mindful of the fact that the plaintiff is not required to prove the details with the same precision as might be required in a viva voce hearing where everything might be in issue as that standard would undermine the simplicity and the benefit of the summary judgment procedure.

[21] Given the sworn assertions of the plaintiff and the response in opposition from the defendant and the further response of the plaintiff, I find that the defendant disputes the facts and a trial is a must to resolve the issue.

[22] The decision whether or not to grant summary judgment in discretionary. Therefore in the exercise my discretion in all the circumstances of this case the plaintiff has failed to discharge the burden of satisfying the court that there is no defence to this action.

[23] In these circumstances the plaintiffs application for summary judgment fails.

Order

[24] It is ordered that the action take its normal course by the parties proceeding with due diligence to complete the pleadings and have the action set down for trial in accordance with the High Court Rules.

[25] The plaintiffs application is therefore dismissed with costs in the cause.

D. Pathik
JUDGE

At Suva
8th April 2010