Evans v Makare Investments Ltd [2011] FJHC 147; HBC32.2009 (7 March 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 32 of 2009

BETWEEN:

BERNARD ROBERT EVANS and VERA HERITAGE EVANS aka VILA HERITAGE EVANS of Lami, Fiji; Company Directors
PLAINTIFFS

AND:

MAKARE INVESTMENTS LIMITED a limited liability company incorporated under the laws of Fiji and having its registered office at 7 Waimanu Road, Suva, Fiji and LESLIE GEE WAY WONG and MERISSA WONG both of Suva, Fiji, Company Directors respectively.
DEFENDANTS

BEFORE: Master Deepthi Amaratunga

COUNSELS: FA & Co. for the Plaintiffs
LAJENDRA LAW for the Defendants

Date of Hearing: 22nd February, 2011
Date of Ruling: 7th March, 2011

RULING

1. INTRODUCTION

1. This is an application by the Plaintiff for summary judgment in terms of the Order 14 rule 1 of the High Court Rules. The Defendants are the guarantors of a loan granted to Makare Holdings Ltd. In pursuant to Claus 9(e) of the Loan Agreement a debt certification is needed and Plaintiff has obtained a debt certification and seeks the amount stated in the debt certificate as by way of a summary judgment.
   

2. FACTS

2. Plaintiff filed the writ of summons on 29th January, 2009 against the Defendants to recover a sum of AUS $ 325,000.00 and the Defendants filed the acknowledgment of service on 11th February, 2009. On 16th February, 2009 the Plaintiff filed an application for summary judgment. The Defendants replied to that application and admitted the fact of being as guarantors to the loan that was granted to the Makare Holdings and also stated that in pursuant to the clause 9(e) of the Loan Agreement that was executed the Plaintiff was required to obtain debt certification from a reputed accounting firm, certifying the balance of the debt and had disputed the amount stated in the writ. The said affidavit further stated that they have made a payment of FJ$200,000.00 on 23rd April, 2009.
   
3. The Plaintiff then obtained the debt certificate from the PricewaterhouseCoopers on 9th December, 2010 and filed and served the said certificate and also amended the writ of summons accordingly. The Plaintiff admitted the acceptance of FJ$ 200,000.00 on 23rd April, 2009 and that amount is depicted in the debt certification and the debt certificate denotes the debt as at 31st October, 2010 as AUS$250,340.00. The writ was amended to the said amount.
   

100. LAW AND ANALYSIS

4. This is an application in terms of the Order 14 rule 1 of the High Court Rules of 1988. The said Order states as follows
   

"Where in an action to which this rule applies a statement of claim has been served on a defendant and the defendant has given notice of intention to defend the action, the plaintiff may, on the ground that the defendant has no defense to a claim included in the writ, or to a particular part except as to the amount of any damages claimed, apply to the court for judgment against the defendant."

5. The Plaintiff filed this interlocutory application for summary judgment on 16th February, 2009 and the Defendant replied and admitted the grant of the loan and also admitted being guarantors to it. They stated in their affidavit in opposition that was filed on 29th June, 2009 that there was a payment of FJ $ 200,000 made after the institution of this action and cited the clause 9(e) of the Loan Agreement where the Plaintiff was required to submit debt certification. The said clause 9 state as follows:
   

"For the removal of any doubt, it is hereby confirmed as follows:

(a) The Debt owed by the Borrower to the Lenders is not disputed and is a truly owing by the Borrower to the Lenders.

(b) This Agreement is an independent Agreement which reflects the true state of affairs between the parties resulting in the acknowledgment of the Debt by the Borrower sand commitment on the part of the Borrower to repay the Debt.

(c) This Agreement is independent of any matters connected with any financing or monetary issues relating to the business in Fiji known as 'Warehouses Kingdom' and that this Agreement shall at all times stand alone and independent anything whatsoever.

(d) The Borrower and the Guarantors confirm that they will not dispute the Debt or create any rights of set off or counter claims against the Debt and / or the Lenders nor shall the Borrower or the Guarantors raise any defence whatsoever or howsoever in respect of the Debt, interest and costs.

(e) A certificate from GH Whiteside & Co. or from any other reputable accounting firm certifying the balance of the Debt and Interest and costs from the time to time shall(in the absence of any manifest error) be conclusive evidence of the amount owing by the Borrower to the Lenders from time to time"

6. The debt certificate was obtained from a global accounting firm PricewaterhouseCoopers and it was obtained as at 31st October, 2010 and it was sent to both lawyers that represented each party at that time. Apart from that the debt certificate was served to the Defendants and the Writ of summons was also amended. It is also noted that sum that was paid after the institution of this action was also admitted by the Plaintiff. The Defendants have not disputed the certificate of debt. So, there is no allegation of "manifest error" in the debt certification and has to be accepted as conclusive evidence as to the amount owing by the Makare Holdings Limited to the Plaintiff. In terms of the agreement the guarantors are liable for the same amount.
   
7. In this action the amended writ of summons is for the sum of AUS $ 250,340.00 and the defendants have not filed a statement of defence and have not filed any affidavit in reply opposing the debt certification on any manifest error on the certificate. In terms of the above mentioned Clause 9(e) of the Loan Agreement such evidence is conclusive evidence as to the amount outstanding. It is also noteworthy, that in terms of Clause 9(d) the parties have agreed not to dispute the debt and to accept the debt certificate as conclusive evidence in the absence of manifest error.
   
8. At the oral hearing counsel for the Defendants stated that there is already a winding up order against the 1st Defendant Company, but no evidence was adduced before me for that. In any event the counsel for the Plaintiff stated that they would not seek an order against 1st Defendant in the light of the revelation at the oral hearing.
   

4. CONCLUSION
   

9. The summary judgment for AUS $ 250,340.00 is granted in favour of Plaintiff against 2nd and 3rd Defendants jointly and severally and 9% interest is also granted from 31st October, 2010. The plaintiff is also granted FJ$1,500.00 as the cost of this application, assessed summarily.
   

Dated at this Suva this 7th day of March, 2011

Mr D. Amaratunga
Acting Master of the High Court

Suva