Australia and New Zealand Banking Group Ltd v Dass [2011] FJHC 508; Civil Action 240.2007 (8 September 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No. 240 of 2007

BETWEEN:

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED a duly constituted banking corporation having its registered office in Melbourne, Australia and carrying on business in Suva and elsewhere.
PLAINTIFF

AND:

GIRWAR DASS (f/n Ram Pyare) of Koronivia Road, Nausori, Businessman.
DEFENDANT

AND:

DOMINION INSURANCE LIMITED an insurance company having it Registered office at 231 Waimanu Road, Suva, Fiji.
THIRD PARTY

Counsel Ms B. Narayan for the plaintiff
The defendant absent and unrepresented
Hearing: 02 June, 2011

JUDGMENT

1. a) By writ of summons filed on 5th June,2007, the plaintiff claims a sum of $25,875.34 from the defendant in respect of monies advanced and credit facilities provided. The statement of claim provides the defendant had executed a Bill of Sale over a motor vehicle. Consequent to default in payments of the loan by the defendant, the plaintiff had seized and sold the vehicle, and the proceeds were credited towards the loan.
   
   2. The defendant filed statement of defence on 20th July, 2007, admitting that he was in default in his payments, and further stated the failure of the third party-Dominion Insurance Limited to carry out proper repair works or modification to his vehicle led to the inability of the defendant to operate the vehicle, for the purpose it was purchased. The defendant moved for notice against the third party and that the third party indemnify the plaintiff's claim.
      
   100. The defendant then, filed statement of claim on 17th September, 2007, against the third party.
        
   4. The third party filed statement of defence in reply in October, 2007, and moved that the claim is vexatious, abuse of the Court process and does not disclose a reasonable cause of action against the third party..
      
   5. The parties were informed that the case will be called on 6th December, 2010. On 6th December, 2010, the court made order that notice of adjourned hearing be issued on the parties, since the plaintiff, defendant and third party were absent and unrepresented.
      
   6. On 24th January, 2011, counsel for the third party moved that the third party be struck out on the ground that the defendant was not present nor represented. Counsel for the plaintiff had no objection to this application. The Court made order that the third defendant be struck out, since notice of adjourned hearing had been given to the defendant. The case was fixed for formal proof against the defendant on 8th April, 2011.
      
   7. On 8th April, 2011, the court once again made order that notice of adjourned hearing be issued on the defendant. The case was re-fixed for formal proof on 13 May, 2011.
      
   8. On 13 May,2011, the Court ordered that Notice of adjourned hearing be issued on the personal address of the defendant, since the court was informed the defendant's Solicitors were no longer in practice; the case was fixed for formal proof on 2 June,2011.
      
2. It is undisputed as set out in the statement of defence and Agreed Facts recorded in the Minutes of the pre-trial conference dated 30th June,2008,that the defendant was in default of his loan payments to the plaintiff.
   
3. On 2 June,2011,Elenoa Ducia, officer of the plaintiff Bank testified at the hearing and produced copies of the following documents in support:
   
   1. The application made by the defendant for a loan of $25,000.00 for the purchase of a motor vehicle (Exhibit P 1).
      
   2. The letter of offer issued by the plaintiff to the defendant setting out the terms and conditions for the grant of the said loan (Exhibit P 2).
      
   100. the Bill of Sale executed by the defendant on 8th February, 2005, by way of security. (Exhibit P3).
        
   4. Demand Notices dated 26th January, 2007 sent to the defendant by the plaintiff (Exhibit P 4A and P 4 B).
      
   5. Advertisements in the Fiji Times inviting tenders for the sale of the defendant's motor vehicle (Exhibit P 5).
      
   6. Bundle of photographs of the defendant's motor vehicle (Exhibit P 6).
      
   7. Letter from the plaintiff's Solicitors to plaintiff enclosing purchase price of the defendant's motor vehicle (Exhibit P7).
      
   8. Statement of account of loan. (Exhibit P8).
      
4. I am satisfied that the plaintiff's claim is due and owing by the defendant.
   
5. Judgment is entered against the defendant in the sum of $ 25,875.34 together with interest as prayed for in the statement of claim.
   

A.L.B.Brito-Mutunayagam
Judge

8th September, 2011