Singh v Shao Ping Zeng [2010] FJHC 276; HBC476.2005 (19 April 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION HBC 476 OF 2005

BETWEEN:

ASHOK KUMAR SINGH
PLAINTIFF

AND:

SHAO PING ZENG
DEFENDANT

Mr S Chandra for the Plaintiff
Mr G O’Driscoll for the Defendant

DECISION

This is an application by Motion dated 2 November 2009 filed on behalf of the Plaintiff seeking the following orders:

"a. An order that the sum of $20,000.00 be released to the Plaintiff upon the Plaintiff providing a letter of indemnity.

b. An order that the Plaintiff to immediately replenish the sum of $20,000.00 in the Trust Account of M C Lawyers upon final determination of this action against the Plaintiff."

The application was supported by an affidavit sworn by Ashok Kumar Singh on 2 November 2009 and filed on 9 November 2009. A supplementary affidavit sworn by the Plaintiff was filed on 23 March 2010.

The application was heard on 24 March 2010. The matter proceeded inter partes and Counsel for the Defendant informed me that the application was opposed. Counsel also indicated that as the Defendant had been out of the jurisdiction for some time he was not able to obtain fresh instructions for an answering affidavit. He indicated that the application was opposed on the basis of instructions received when the Defendant was in Fiji.

To understand the basis of the application, it is necessary to set out briefly the history of this action.

A Writ of Summons was filed on 15 September 2005 together with a Statement of Claim in which the Plaintiff claimed the sum of $50,000.00 as commission from the Defendant. The Plaintiff claimed that he was entitled to the Commission pursuant to an authority dated 31 March 2005 issued by the Defendant to the Plaintiff to sell the Defendant’s property. The property was sold and settlement was effected albeit some four months later on or about 3 August 2005.

An affidavit of service filed on 23 September 2005 deposed that the Writ and Acknowledgment of Service document were personally served on the Defendant on 19 September 2005.

Judgment in Default of filing an Acknowledgement of Service was entered on 17 November 2005 by the Plaintiff against the Defendant. An affidavit of service filed on 15 December 2005 deposed that a copy of the Default Judgment was personally served on the Defendant on 13 December 2005.

A Summons to Garnishee was filed by the Plaintiff on 16 December 2005 together with a supporting affidavit sworn by the Plaintiff on 15 December 2005. An affidavit of service filed on 4 January 2006 deposed that the two documents to which reference has just been made were personally served on the Defendant on 30 December 2005. The summons was returnable on 12 January 2006. A further affidavit of service filed on 13 January 2006 deposed that the summons and affidavit were personally served on an employee of the Australia and New Zealand (ANZ) Bank (the Bank) on 21 December 2005. The affidavit does not identify the name of the employee and I have some doubt as to whether service on the Bank was effected in accordance with the rules relating to service of documents on a body corporate.

On 12 January 2006 there being no appearance by or on behalf of the Defendant or the Bank, the Master ordered that the Bank (as Garnishee) pay forthwith to the Plaintiff the sum of $50,000 being the amount of the Judgment remaining due and payable and being an amount of a debt due from the Bank to the Defendant. The Bank subsequently paid $50,000.00 to the Plaintiff.

Upon becoming aware that $50,000.00 had been withdrawn from his account by the Bank to satisfy the order made on 12 January 2006, the Defendant instructed solicitors to act on his behalf. By motion dated 12 April 2006 the Defendant applied to have the Orders made on 12 January 2006 set aside and that the Defendant have leave to file his Defence within 14 days. The application was supported by an affidavit sworn by Shao Ping Zeng on 18 April 2006.

For the present purpose it is sufficient to state that the Defendant denied that he had ever been served with the Writ, the default Judgment or the Garnishee Summons. He claimed that the three affidavits of service sworn by Dev Anand as Registered Bailiff were false.

The Motion came before the Master on 15 May 2006. Although the documents appeared to have been served on the Solicitors acting for the Plaintiff, there was no appearance by or on behalf of the Plaintiff on that day. The Master ordered that the Order of 12 January 2006 be set aside and that the Defendant file his Defence by 19 May 2006. Costs in the sum of $150.00 were to be paid to the Plaintiff.

It should be noted that the Master’s Orders made on 15 May 2006 whilst setting aside the Garnishee Order made on 12 January 2006 did not set aside the Default Judgment that had been entered on 17 November 2005. Although the matter had not been addressed, it would appear that at that time the interlocutory aspect of these proceedings remained in a confused state.

In any event the Defendant delivered his Defence on 24 May 2006. A Reply to the Defence was filed on 2 August 2006.

As a result of an interlocutory application by motion dated 24 May 2006 and filed by the Plaintiff seeking to set aside his Orders dated 15 May 2006, the Master made further orders on 24 July 2006 to the effect that: (i) the default judgment entered on 17 November 2005 be set aside; (ii) the sum of $20,000 be held in the Trust Account of the Plaintiff’s Solicitors until determination of the action or further order and (iii) the matter to take its normal course.

The reference to only $20,000.00 in the order is, I am told, due to the fact that acting with surprising haste, the Plaintiff’s Solicitors had forwarded the fruits of the default judgment to the Plaintiff who had expended $30,000.00 before the Defendant was able to salvage the situation.

I am informed that since July 2006 the balance of $20,000 has remained in the non-interest earning Trust Account of the Plaintiff’s Solicitors.

The hearing of the action took place in the High Court on 5 June 2007. At the conclusion of the evidence the learned Trial Judge gave directions for the filing of written submissions. The Plaintiff filed written final submissions on 13 June and the Defendant did so on 28 June 2007. The Judgment was not delivered and it would appear now that the matter will have to be re-heard some time in the future.

It is this delay together with the uncertainty as to when the matter will be determined together with the fact that the $20,000.00 is sitting in a non-interest earning account that has prompted this application.

I have no hesitation in concluding that the status quo cannot be allowed to continue. The money should be placed in an interest earning account or the Plaintiff’s application should be granted.

In his submission Counsel for the Plaintiff put forward three reasons for granting the application. First, the Plaintiff stated in his supporting affidavit that the continued retention of the money in the Trust Account caused him financial difficulty and hardship and that he needed the money to be released to him as soon as possible. I make two comments about that submission. First it appears to be premised on the basis that the Plaintiff has a right to the money. In effect it is based on the assumption that the Plaintiff’s case is sufficiently sound to conclude that he will succeed at the trial. I do not necessarily agree with that assumption. Secondly, there are no details provided as to the financial difficulty faced by the Plaintiff or the financial hardship experienced by the Plaintiff or the nature of his urgent needs. That information should have been included in the affidavit.

Secondly, the Plaintiff, with some justification, points to the absence of the Defendant from the jurisdiction for most of the time since the trial of the action. It would appear that the Defendant left Fiji for the last time on 7 December 2007 and has not returned since then. Counsel for the Defendant indicated that he does not know the exact whereabouts of the Defendant and has no instructions as to when he is likely to return to Fiji.

Finally, the Plaintiff relies upon the uncertainty of the date of any re-hearing of the substantive action and that as a result the money should be utilized in the meantime.

On behalf of the Defendant it is submitted by Counsel that the Plaintiff has not established in his affidavit material any ability or capacity to repay the $20,000 if it is released to him on conditions. Perhaps of some weight is the submission that there is no material to support the Plaintiff’s ability to repay the entire $50,000 if the money were to be released to the Plaintiff and the substantive issue is finally decided against him.

Having considered the affidavit material filed by the Plaintiff and the submissions presented by Counsel for the parties, I have concluded that in the short term, the sum of $20,000.00 should be deposited into an interest earning account as soon as possible from the date of this order.

However this situation will not be permitted by the Court to continue for any length of time. I propose to list the matter for mention on a date that is stated in the orders made below for the purpose of fixing a hearing date. For the information of Counsel that date will be no later than 30 June 2010.

I make the following orders:

1. The sum of $20,000.00 that is currently held in the Trust Account of M C Lawyers is to be deposited into an interest earning account within 7 days from the date of these orders.
   
2. The matter is listed for mention on Friday 30 April 2010 at 9.30 for the purpose of fixing a date for the re-hearing of the action.
   

100. Costs of this application are costs in the cause.
     

W D Calanchini
JUDGE

19 April 2010
At Suva