Petrogold International L.L.C v CSF Phuket Company Ltd [2010] FJHC 270; HBC214.2009 (26 February 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION HBC 214 OF 2009

BETWEEN:

PETROGOLD INTERNATIONAL L.L.C
PLAINTIFF

AND:

CSF PHUKET COMPANY LIMITED
FIRST DEFENDANT

AND:

PAUL COOPER
SECOND DEFENDANT

Mr J Savou for Plaintiff
Mr W Huare for Defendants

DECISION

This is an application brought by the Plaintiff for summary judgment against the First Defendant in the sum of US$80,000.00 together with costs.

The application was made by Summons dated 14 September 2009. In support of its application the Plaintiff relied upon an affidavit by Sanjay Kumar sworn on 26 August 2009 and filed herein.

The application was opposed and an affidavit by Paul Cooper sworn on 28 September 2009 was filed on behalf of the First Defendant.

The application came on for hearing before me on 29 September 2009. At the commencement of proceedings, Counsel for the Defendants sought leave to file further affidavit material. As there was no objection orders were made for the filing of further affidavit material and the application was relisted for hearing on 29 October 2009.

The hearing of the application commenced on 29 October 2009. At the commencement of the hearing Counsel for the Defendants informed the Court that the further affidavit had not yet been filed or served although it had been signed and sworn by the Deponent. Counsel for the Defendants indicated that it would be necessary to apply for an adjournment to enable the affidavit to be filed and served and to enable Counsel for the Plaintiff to consider whether a reply affidavit should be filed. As a result further orders were made and the application was adjourned part heard to 1 December 2009.

The Defendants filed one further affidavit sworn by Paul Cooper on 28 October 2009. The Plaintiff did not file any further affidavit material.

The hearing of the application resumed and was completed on 1 December 2009. Both Counsel made helpful submissions on the facts that were relevant to the application.

In its Statement of Claim the Plaintiff pleads two causes of action. The first and principal claim is for breach of contract dated 3 June 2009. The Plaintiff claims that in consideration for the payment of US$80,000 the First Defendant agreed to supply 3000kg of sandalwood to the Plaintiff on or before 30 June 2009. It was a term of the said agreement that the First Defendant would refund the sum of US$80,000 in the event that it failed to supply 3000kg of sandalwood by 30 June 2009. It was claimed by the Plaintiff that the First Defendant had failed to supply the 3000kg of sandalwood or any sandalwood by 30 June 2009 and had failed to refund the US$80,000.00.

In the Defence filed on 4 August 2009, the Defendants deny that they or either one of them entered into a contract with the Plaintiff. The Defence is a blanket denial of the existence of any contract between them and the Plaintiff. The Defence does not plead any facts that may be relevant to the Defence.

However, in its Defence the Defendants admitted the contents of the first three paragraphs of the Plaintiff’s Statement of Claim. The authorization by the First Defendant for the Second Defendant to act on its behalf was therefore admitted.

In the affidavit of Sanjay Kumar sworn on 26 August 2009 a copy of the agreement is annexed as Exhibit B. The agreement was made between the First Defendant represented by the Second Defendant who was its Director as "the Seller" and the Plaintiff represented by Mr Sanjay Kumar as "the Buyer". The agreement contained the terms and conditions that were referred to in paragraph 6 of the Statement of Claim. The agreement is signed by the Second Defendant on behalf of the First Defendant and by Sanjay Kumar on behalf of the Plaintiff.

Also annexed to the affidavit in support was a copy of a letter of authorization on the letterhead of the Plaintiff company that confirmed that Sanjay Kumar was the authorized representative for Fiji "to execute the contract entered into between us and M/s CFS Phuket Co Ltd." He was also authorized to claim for the refund of the amount of US$80,000 paid as advance to the First Defendant in Fiji.

In paragraph 6 of the Plaintiff’s supporting affidavit Sanjay Kumar states:

"The amount of $USD80,000 (Eighty Thousand United States Dollars) had been paid by the Plaintiff to the First Defendant by way of telegraphic transfer on 14 April 2009 from the Habib Bank AG Zurich Dubai to the Westpac Suva Bank account of the First Defendant Number 980 1979767."

Annexure C to the said affidavit was a copy of a computer print out evidencing the transmission of the funds. The document established that on 14 April 2009 US$80,000 was transferred by order of Bharat Castle General Trading LLC to the account of CFS Phuket Co. Ltd at Westpac Banking Corp. 1 Thompson Street Ground Floor Suva Fiji No. 9801979767.

In an affidavit sworn by Sanjay Kumar on 13 July 2009 in relation to a different application in the same Action, there is exhibited a copy letter dated 4 July 2009 from Bharat Castle General Trading LLC addressed to the First Defendant that states:

"Ref: Remittance for USD 80,000 dated 14.4.2009.

Please refer the above payment sent to your account through Westpac Banking Corporation from our bank Habib Bank AG Zurich, Dubai UAE.

The said payment was sent us on behalf of Petrogold International LLC, Dubai – UAE.

So you are requested to please treat the said payment received by you from the above party."

Counsel for the Plaintiff accepted that the use of the word "subsidiary" to describe the relationship between the Plaintiff and Bharat Castle the General Trading LLC in both the Statement of Claim and in affidavit was inappropriate if not misleading. However the letter does make it clear that the money was sent to the First Defendant on behalf of the Plaintiff Company.

The affidavit in support also confirmed that three tonnes (3000kg) of sandalwood had not been supplied at all let alone by the due date. The affidavit also confirms that the First Defendant has not refunded US$80,000.

The second cause of action was that the Second Defendant represented that the First Defendant could and would supply quantities of sandalwood from Fiji to the Plaintiff. It was pleaded that as a result of the representation the Plaintiff arranged for US$80,000.00 to be sent to the First Defendant and entered into an agreement with the First Defendant for the supply of 3000kg of sandalwood from Fiji.

The Defendants simply denied the contents of the relevant paragraphs of the Statement of Claim.

This application is for summary judgment against the First Defendant. The affidavit in support of the application deposes to matters that are connected with the first or principal cause of action, i.e. the breach of the agreement by the First Defendant. The supporting affidavit did not contain any material in relation to the alleged representation by the Second Defendant.

In the opposing affidavits, the deponent (the second defendant) has raised a number of technical issues concerning the standing of the Plaintiff, the identity of the company that deposited the funds and the authority of Mr Sanjay Kumar. These are not issues which constitute a defence to the claim. They are matters which are in my opinion, intended to distract the Court’s attention.

On the material that has been placed before me I am satisfied that Petrogold International LCC is the contracting party and the proper Plaintiff. I am satisfied that the amount of US$80,000 was paid on behalf of the Plaintiff and was received by the First Defendant. I am satisfied that Mr Sanjay Kumar had the necessary authority as the Plaintiff’s agent to sign the agreement on behalf of the Plaintiff and to pursue delivery of the sandalwood or recovery of the US$80,000 as a result of non-delivery.

As for any comments or observations made by the Court during the course of the hearing for the mareva order, they were made in the context of an application for interim injunctive relief at a time when there was limited affidavit material before the Court.

Significantly the affidavit material filed by the Defendants did not depose that the amount of US$80,000 had not been received by the First Defendant into its Suva Westpac Bank account on or about 14 April 2009. Nor is it disputed in the affidavit material that the First Defendant failed to supply the sandalwood on or before 30 June 2009.

The Defendants have not pleaded in the Defence any acts, facts or circumstances that may give rise to any defence to the claim.

This application is an application made under Order 14 of the High Court Rules. Therefore the Plaintiff’s application must satisfy the requirements that are stated in the Order for the Court to consider the application on its merits. Once the Plaintiff has established that the application comes within the Order (i.e. the requirements in Order 14 Rule 1) and that the three procedural conditions precedent have taken place, then it has established a prima facie case entitling it to judgment. The burden then moves to 11the First Defendant to show why judgment should not be given against it.

This is an action commenced by writ that does not come within any of the exemptions set out in Order 14 Rule 1 (2) and (3). Order 14 can therefore be availed by the Plaintiff.

The conditions precedent are first that the Statement of Claim must have been served on the First Defendant. Secondly, the First Defendant must have given notice of intention to defend. Thirdly, the affidavit in support of the application must comply with the requirements in Order 14 Rule 2.

The Acknowledgement of Service dated 7 August 2009 and filed on the same day by the Legal Practitioner for the First Defendant indicates compliance with conditions precedent one and two. The affidavit in support contains the necessary statements in paragraph 9 which states

"It is my firm and honest belief that the First Defendant has no defence to the claim."

On the material before me I am satisfied that the Plaintiff has established its claim against the First Defendant for breach of contract. I am also satisfied that the First Defendant has not established a bona fide defence to the claim and nor has it raised any issue in respect of the claim which ought to be tried. The First Defendant has not discharged its burden in this application. The Plaintiff is entitled to summary judgment against the First Defendant for breach of agreement.

I order that summary judgment be entered in favour of the Plaintiff against the First Defendant for breach of agreement in the sum of US$80,000.00.

Since there is no claim for interest in the Statement of Claim, in keeping with the established practice of this Court, there will be no award for interest. (see Renuka Shankar –v- Chandar Gopalan Naidu – unreported Civil Appeal (CA) No. 3 of 2001 delivered 18 October 2001).

Costs are awarded to the Plaintiff against the First Defendant on a party party basis to be agreed and if no agreement to be taxed.

W D Calanchini
JUDGE

26 February 2010
At Suva