National Bank of Fiji Ltd v Ram [2010] FJHC 494; HBC306.2008 (9 November 2010)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 306 of 2008

BETWEEN:

NATIONAL BANK OF FIJI LIMITED
t/a COLONIAL NATIONAL BANK
Plaintiff

AND:

PARAS RAM & GYANENDRA SHANDIL
Defendants

Counsel: Munro Leys for the Plaintiff
Diven Prasad Lawyers for the Defendants

Date of Judgment: 9th November, 2010

JUDGMENT

This is an application for summary judgment under Order 14 of the High Court Rules seeking the payment of monies allegedly owed in terms of a Deed of Guarantee given by the defendants securing the indebtedness to the plaintiff bank of a company called Eagle Rich Investments Fiji Ltd (hereinafter referred to as ERIFL) of which the defendants are directors.

On 02.10.2008, the plaintiff filed summons for summary judgment against the defendants seeking following orders:

1. Judgement in the sum of FJ$ 7340619.49
   
2. Interest on the said sum of FJ$ 7340619.00 under the terms of the Guarantee Cap 27 to the date of final judgment.
   
3. Post judgment interest of 4% from the date of final judgment to the date of full satisfaction of the judgment sum.
   
4. Indemnity costs.
   

The facts of the case are not in serious dispute and may be briefly summarised as follows:

The plaintiff is a banker carrying on business in Fiji. Pursuant to a loan agreement the plaintiff made advances a sum of $7340619.49 to ERIFL. The loan was repayable on demand. On 18.01.2008 the amount due to the plaintiff from ERIFL was $7340619.49. The plaintiff demanded repayment of the said sum from ERIFL on 08.02.2008.

The plaintiff on 19.08.2008 demanded from the 1st defendant, the sum of 7340619.49 being the amount due from the ERIFL.

Since the defendant as a guarantor failed to pay the said sum, the plaintiff commenced legal proceedings by way of Writ of Summons.

The plaintiff's claim against the 1st defendant is based on the said loan agreement in which the first named defendant is one of the guarantors.

In support of the plaintiff's application the Assistant General Manager of the Plaintiff Bank tendered and affidavit. The facts of the affidavit can be summarised as follows.
The amount owing to Colonial by ERIFL on 18.01.2008 was $7340619.49. The Colonial demanded the repayment of the said sum from ERIFL. Following the service of the Demand Notice on ERIFL the plaintiff demanded the 1st named defendant, the sum of $7340619.49 being the amount due and owing from ERIFL. The 1st defendant was served with the Demand Notice on 19.08.2008. Neither ERIFL nor the defendant has paid the sum demanded.

The following are the conditions precedent for the plaintiff employing the summary process of Order 14.

1. The defendant must have given notice of intention to defend;
   
2. The statement of claim must have been served on the defendant; and,
   

100. The affidavit in support of the application must comply with the requirement of Order 14 Rule 2 i.e.
     
     1. An application must be supported by an affidavit verifying the facts on which the claim or part of the claim is based, and stating that in the deponent balief there is no defence.
        
     2. An affidavit must contain statement of information or belief with the sources and grounds thereof.
        
     3. The summons and a copy of affidavit, and any exhibits referred to therein must be served on the defendant not less than 10 clear days before the return day.
        

The correct approach to an application for summary judgment is succinctly stated in Pemberton v. Chappell (1987) 1 N.Z.L.R where it was 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 plaintiff's affidavit verifying the allegations in the statement of claim and his oath that he believes that the defendant has no defence to the claim. Once the plaintiff has complied with the requisite formalities and satisfied the Court that there is no defence, judgment will normally be given for the plaintiff: ... if a defence is not evident on the plaintiff's pleading and the defendant wishes to resist the 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.'

The principles governing the granting of summary judgments are well settled and are clearly stated in following judgments.

As a general principle, where a defendant shows that he has a fair case of defence, or reasonable grounds for setting up a defence, or even a fair probability that he has a bona fide defence, he ought to have leave to defend. Saw v. Hakim (1889) 5TLR 72

Leave to defend must be given unless it is clear that there is no real substantial question to be tried. Codd v. Delap (1905) 92 L.T.510, HL

A complete defence need not be shown. The defence setup need only show that there is a triabal issue or question or that for some other reason there ought to be a trial; and leave to defend ought to be given unless there is clearly no defence in law such as could have been raised on the former demurrer to the plea and no possibility of a real defence on the question of fact. Jacob v. Booths Distillery Co.(1901) 85 L.T.262

Where there is a fair probability of a defence unconditional leave to defend ought to be given. Ward v. Plumbley (1890) 6 T.L.R 198

It sometimes happen that the defendant may not be able to pin point any precise issue or question in dispute which ought to be tried, nevertheless it is apparent that for some other reason there ought to be a trial. Manger v. Cash (188) 5 T.L.R 27

The requirements to be satisfied in order to obtain a summary judgment are enunciated as follows in S.v. Gloucestershire County Council [2000] 3 All.E.R 346.

For an application for summary judgment to succeed where a strike out application would not, the court, first needs to be satisfied that all substantial relevant facts which are reasonably capable of being before the court are before it, that those facts are undisputed or that there is no real prospect of successfully disputing them and that there is no real prospect of oral evidence affecting the court's assessment of the facts.

It is with these legal principles in mind I consider the present application.

On the face of it this was a fairly straight forward transaction of a fairly common kind whereby on a standard form the directors of a private company guaranteed the company's indebtedness to the bank. The first defendant has sworn an affidavit in opposition to the plaintiff's application which his counsel claims raises complicated questions of law and triable issues of facts.

Although the debt is not denied the affidavit of the first defendant raises the following three defences which may be conveniently categorised as:

1. The plaintiff should not make a demand on the defendant before making a demand on ERIFL
   
2. Demand should not be made on him until the ERIFL had failed to pay.
   
3. A demand on him was required to make before the appointment of receivers and managers.
   

In support of his first defence the defendant relied on clause 3.2 (a) and (b) of the guarantee.

The clause 3.2 (a) and (b) of the guarantee reads:

Except where the secured moneys are payable without prior demand under clause 7, the guarantor will pay the secured moneys to the bank on demand, or so much of the secured moneys as the bank specifies in its demand. However, the bank will not make demand on the guarantor;

(a) In the case of moneys which are payable by the debtor making demand on the debtor; and

(b) In all other cases, before the debtor has failed to pay, when due to be paid, the moneys specified in the demand.

According to the plaintiff, the demand notice on ERIFL was made on 15.02.2008. A copy of the demand notice is marked as MS 3 is annexed. Also a copy of the demand notice served on the 1st defendant marked as MS 4 is annexed. The 1st defendant was served with the demand notice on 19.08.2008. That is six months after the demand notice was served on the ERIFL thus, the plaintiff has complied with clause 3.2(a) of the Guarantee. Therefore, the first ground of defence advanced by the 1st defendant's fails.

The second ground of defence urged by the 1st defendant is that a demand should not be made on him as a guarantor until ERIFL has failed to pay. The plaintiff's application is based on the non payment of debt by the ERIFL. It is apparent that the ERIFL has neglected to pay the debt when demanded by the plaintiff.

The first defendant could not establish anything in contrary to that. The 1st defendant could not even produce any documentary evidence to substantiate his defence. Hence, there is no merit on that ground of defence.

I turn next to deal with the third and final ground of defence urged by the 1st defendant in his affidavit, i.e. a demand on him was required to be made prior to the appointment of receivers and managers. The 1st defendant failed to show any provisions in the guarantee, which warrants such a requirement. Therefore, it appears that the 1st defendant has failed to show any substantial and valid defence to the claim made by the plaintiff.

'The purpose of the summary procedure under Order 14 is to enable a plaintiff to obtain a judgment without trial, if he can prove his 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.' Robert v. Plant [1895] 1Q.B.597

'Order 14 is intended to prevent a man clearly entitled to money from being delayed, where there is no fairly arguable defence to be brought forward.' Anglo-Italian Bank v. Wells (and Davies)(1878) 38 L.T 197

When the plaintiff establishes a strong prima facie case against the defendant the onus lies with the defendant to resist the summary judgment. To do that, his affidavit must address the plaintiff's claim and it must show that there is a triable issue. The defendant affidavit should, as far as possible, deal specifically with the plaintiff's claim and affidavit, and state clearly and concisely what the defence is, and what facts are relied on to support it. A mere denial of the liability or a sham defence would not suffice to resist the summary judgment.

In the present case the first defendant never challenged the amount of the debt, the obligations under the guarantee or the liability of the debtor or guarantors, but mainly challenged the validity of serving of the demand notice and the validity of appointment of Receivers and Managers, which in my view do not raise any arguable issue, thereby do not warrant a full trial. Clearly there is no merit in alleged defences and also no reasonable explanation to the claim of guarantee.

Considering the above facts I hold that, the 1stdefendant has manifestly failed to advance an arguable defence or to raise any complicated questions of law.

On the above premise, I grant the plaintiff a summary judgment in terms of the summons.

Pradeep Hettiarachchi
JUDGE