Moti Chandra & Co Ltd v Credit Corporation (Fiji) Ltd [2012] FJHC 830; HBC173.2003 (27 January 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

ACTION: HBC 173 OF 2003

BETWEEN:

MOTI CHANDRA and COMPANY LIMITED
Plaintiff

AND:

CREDIT CORPORATION (FIJI) LIMITED
First Defendant

AND:

EPARAMA TURAGA
Second Defendant

Mr D. Sharma for the Plaintiff
Mr B. C. Patel with Mr V Kapadia and Ms A Sharma for the Defendants.

JUDGMENT

This is an action commenced by Writ issued by the Court on 6 May 2003. The proceedings arise out of a dispute between the Plaintiff and the First Defendant concerning refinancing arrangements for the acquisition of buses by the Plaintiff.

With the leave of the Court the Plaintiff filed and served an amended Statement of Claim dated 3 September 2003. Apart from the heading and the addition of the Second Defendant, none of the amendments to the Statement of Claim were underlined or marked in red as required by Order 1 Rule 7 and the Practice Direction appearing in Volume 2 of the White Book (1995) at paragraph 738.

The Plaintiff pleaded four causes of action. The first cause of action was a claim for damages for the fraudulent rewriting of the Plaintiff's asset purchase agreements (contracts). The second cause of action was a claim for damages for trespass to and unlawful seizure of the Plaintiff's goods being buses in the possession of the Plaintiff. The third and fourth causes of action involved claims for damages for breaches of certain sections of the Fair Trading Decree 1992 (as amended by the Fair Trading (Amendment) Act 1998).

During the course of the trial of the action and in his closing submissions, Counsel for the Plaintiff indicated that the Plaintiff did not take issue with any of the asset purchase agreements entered into between the parties up to and including the agreement dated 29 October 1998 and to which reference was made in paragraph 9 of the Amended Statement of Claim. This meant that many of the issues raised in the first cause of action were no longer in dispute. The issue that did remain in dispute concerned the existence of an asset purchase agreement allegedly made in March 2000 that resulted in the First Defendant opening a new account numbered 67314 for the Plaintiff.

In his closing submissions Counsel for the Plaintiff also indicated that the Plaintiff was not proceeding with the third and fourth causes of action relating to claims for damages for breaches of the Fair Trading Decree.

It was also necessary to make by consent minor amendments to paragraph 23 of the Statement of Claim to correct mathematical errors.

Apart from a series of Declarations, the Plaintiff claimed judgment for the amount of $41,258.36 as an amount overpaid by the Plaintiff to the First Defendant. The Plaintiff also claimed special damages for loss of income, presumably against both Defendants, arising out of the cause of action for trespass and unlawful seizure. The Plaintiff also claimed general damages in respect of the same cause of action and also interest and costs.

In the first cause of action the Plaintiff claimed that, pursuant to an agreement dated 29 October 1998 (being the date agreed by the parties as the date on which the agreement was signed), account No.61622 was opened. The opening balance of the account was $364,800.00. The period of the agreement was four years. The Plaintiff pleaded that the refinancing agreement was secured by five buses. The Plaintiff claimed that one of the buses was then sold and on 31 May 1999 $180,000.00 was credited to the account 61622. The Plaintiff claimed that account 61622 was fully repaid on 12 March 2000 and that the account was closed with a zero balance.

The Plaintiff also claimed that on 7 March 2000 the First Defendant opened a new account No.67314 in the Plaintiff's name with an opening balance of $142,000.00 (principal of $96,000 and charges of $46,000). The Plaintiff claimed that it had not signed a new asset purchase agreement in March 2000. It claimed that the First Defendant had not provided a copy of the new asset purchase agreement and nor had it seen a copy of the agreement. The Plaintiff also claimed that it had not been given details of how the principal had been calculated nor the details of any security in respect of the new account. The Plaintiff claimed as fraudulent the use of the Rule 78 to calculate a principal sum, a large part of which had already been repaid.

The Plaintiff claimed that as result of further payments made between March 2000 and March 2001, it had overpaid the First Defendant by an amount of $41,258.36. The basis of the calculation was set out in para 21 of the Statement of Claim. The Plaintiff states that the First Defendant has refused to refund the overpayment.

In the second cause of action the Plaintiff alleged that on 5 May 2003 the First Defendant authorised the Second Defendant (a bailiff) to seize eight buses which were in the Plaintiff's possession. The Plaintiff claimed that on 6 May 2003 the Second Defendant went on to the Plaintiff's premises and demanded to seize the buses. The Plaintiff alleged that although it had demanded to be given or to be shown a copy of the contract under which the buses were being seized, the Second Defendant refused to provide a copy. On 7 May 2003 the Second Defendant repossessed five buses from the Plaintiff's property.

The buses were retained by the First Defendant for some 23 days before they were returned to the Plaintiff.

The Plaintiff claims loss of income for the 23 days at an average rate of $300 per day. It is also alleged that the buses were damaged by the Second Defendant. No particulars were provided in the Statement of Claim either as to running costs or as to damage done to the buses.

The Plaintiff also alleged that the Second Defendant had entered onto the Plaintiff's premises as a trespasser and harassed and threatened the Plaintiff's employees. The basis of this claim was that the Plaintiff did not owe any money to the First Defendant and as a result the Second Defendant had no authority or permission to enter its premises. It is also claimed that the First Defendant was vicariously liable for the Second Defendant's actions.

In its Defence the First Defendant admitted that five accounts were consolidated and rewritten into account No.61622 pursuant to an asset purchase agreement dated 29 October 1998. It also admitted that the total hiring amount under the agreement was $364,800.00 and that account 61622 was opened in that amount. The First Defendant disputed the date on which the bus CQ008 was delivered to the purchaser but admitted that in May 1999 $180,000.00 was credited to account 61622 in respect of the sale by the Plaintiff of that bus to Dominion Transport Company Limited. This was the result of arrangements that existed between the Plaintiff and First Defendant and between the First Defendant and Dominion Transport.

The First Defendant acknowledged that the Plaintiff had made three installment payments of $7,600.00 per month under the asset purchase agreement dated 29 October 1998. These payments were made for the months of October, November and December 1998. They reduced the balance of account 61622 by $22,800.00. It was claimed by the First Defendant that there were no further installment payments made by the Plaintiff in respect of account 61622.

The First Defendant alleged that after crediting account 61622 with $180,000.00 as at 31 May 1999 the balance owing in account 61622 was $162,483.61.

The First Defendant claimed that at the request of the Plaintiff a new account number 67314 was opened on 7 March 2000 with an opening principal of $96,000.00 plus charges. It claimed that a rebate in the sum of $66,481.61 was given to the Plaintiff which was calculated using Rule of 78 in respect of the remaining 32 months of account 61622. The First Defendant stated that this rebate resulted in an opening balance of $96,000.00 which with the charges meant monthly installment payments of $2960.00 for four years from 7 March 2000. The First Defendant also claimed that the Plaintiff knew that the securities covered under account 61622 were the same securities for account 67314. It claimed that the asset purchase agreement was varied because the Plaintiff was unable to meet its monthly payment of $7,600.00.

The First Defendant denied that the Plaintiff had overpaid the amount claimed and claimed that the Plaintiff owed the First Defendant the sum of $135,687.61 as at 30 September 2003.

The First Defendant claimed that it was entitled to repossess the buses from the Plaintiff's premises as the Plaintiff was in arrears of monthly payments. It claimed that the repossession took place on 7 May 2003.

It also claimed that nine buses were listed in the Schedule of Equipment which was annexed to the Asset Purchase Agreement dated 29 October 1998 a copy of which had been given to the Plaintiff. It claimed that the Plaintiff knew that the remaining eight buses were then held as security under account 67314. It also claimed that the seizure of the buses was in accordance with the asset purchase agreement.

There is a counterclaim by the First Defendant claiming $135,687.61 being the amount due and owing as at 30 September 2003 under account 67314 plus default interest at 25% per annum from thereon.

The Plaintiff's Reply and Defence to counterclaim joined issue with the First Defendant in respect of all the matters that remained in dispute.

The Minutes of Pre-Trial Conference were set out in a document filed on 30 October 2008. Apart from formal admissions, the following facts were agreed as between the parties:

"The First Defendant since 1993 had agreed to finance certain buses to the Plaintiff under what is commonly referred to as Asset Purchase Agreements (hereinafter referred to as "Contracts").

Prior to 31 October 1998 the Plaintiff had entered into 5 contracts with the First Defendant. [Details were set out in a chart].

The First Defendant refinanced the 5 contracts into the one contract dated 31 October 1998 under contract No. 61622."

The chart under this paragraph showed that the refinanced amount in account 61622 was a principal of $260,330.25 plus charges of $104,469.75 for a total amount of $364,800.00.

This same chart showed that total payments received for account 61622 amounted to $202,800.00 which left a balance of $162,483.61. The chart then showed that a rebate of $66,483.38 using the Rule of 78 had been allowed leaving a payout for rewriting of $96,000.00.

The parties also agreed that contract No.61622 was secured by 5 buses. They agreed that on 5 May 2003 the First Defendant authorised the Second Defendant to seize eight buses. They agreed that on or about 7 May 2003 the Second Defendant acting on the instructions of the First Defendant seized about 5 buses of the Plaintiff. The buses were released on 30 May 2003 back to the Plaintiff.

During the trial the Plaintiff did not lead any evidence as to the alleged damage to the buses whilst in the possession of the Defendants. In his closing submissions Counsel for the Plaintiff conceded that there was no material before the Court to support the claim.

As a result the substantive relief sought by the Plaintiff was judgment for $41,258.36 in respect of overpayment on account 61622 which it claimed had been fully paid by March 2000 together with a claim for special damages for loss of income as a result of the trespass to and seizure of five buses for the period 7 – 30 May 2003 by the Second Defendant acting on instructions from the First Defendant.

The substantive relief claimed by the First Defendant on the counterclaim remains as judgment in the sum of $135,687.61 being the amount owing under account 67314 as at 30 September 2003 together with default interest continuing thereon till payment.

As the parties noted in the Minutes of the Pre-trial Conference the substantive relief claimed in the Statement of Claim and in the counterclaim raise the following issues: (a) whether account 61622 was fully repaid as at March 2000, (b) whether the Plaintiff requested the contract for the 61622 account to be refinanced by a contract for account 67314, (c) whether the Plaintiff executed a new asset purchase agreement for account 67314, (d) whether the First Defendant created a new account 67314 for the Plaintiff on 7 March 2000, (e) what was the principal sum and charges in account 67314 and (f) what if any was the loss of income of the Plaintiff for the 23 days that the buses were retained by the Defendants.

The hearing of the action commenced on Monday 14 November and continued on a daily basis until Friday 18 November 2011 when Counsel presented oral closing submissions late in the afternoon. The Plaintiff called Mr Reginald Mohan to give evidence. Mr Mohan is the son of the two directors of the Plaintiff company, Mr Dewan Chand and Mrs Shereen Chand. He joined the company in December 1998 and has worked in the family business continuously since then. The Defendants called three witnesses. The first witness, Mr B Sutton, gave brief evidence in relation to his calculations of rebates based on the Rule of 78. The Second Defendant was then called to give evidence. The third witness called by the Defendants was Mr Uday Raj Sen who had been employed by the First Defendant as Business Development Manager and then as General Manager Business Development and Lending between October 1999 and February 2010.

At the commencement of the hearing, by consent, 65 documents were admitted into evidence and marked as exhibits 1- 65. A further 17 documents were admitted into evidence during the course of the hearing and were marked as exhibits 66 – 82 respectively.

Having considered the evidence and after carefully reading the documentary material I have determined certain findings of fact on the balance of probabilities.

The Plaintiff and the First Defendant entered into a written refinancing agreement dated 29 October 1998. The principal sum advanced was $260,330.25 together with charges of $104,469.75 for a total amount of $364,800.00.

The agreement was in the form of an Asset Purchase Agreement. It was signed by one Director and the Secretary for and on behalf of the Plaintiff company.

Mr and Mrs Chand signed as guarantors. The agreement required the Plaintiff to make 48 monthly installment payments of $7,600.00 with the final payment due on 2 October 2002.

Attached to the agreement and representing the security was a schedule of equipment. The schedule listed nine buses, all of which were identified by make, engine number and chassis number. However only four of the buses appeared to have registration numbers. The schedule contained the signatures of the Director and Secretary of the Plaintiff company and was also dated 29 October 1998. Throughout the agreement the First Defendant is referred to as "the Owner" and the Plaintiff as "the Hirer".

The agreement was a four page document setting out the terms and conditions of the contract. The principal effect of the agreement is that when the Plaintiff as hirer has made the 48 monthly payments of $7,600.00 or pays the amount due under the agreement less a rebate for early payment prior to 2 October 2002 and with the agreement of the owner, property in and title to the buses listed in the schedule will pass to the Plaintiff.

The rebate allowed to the hirer for early payment of the agreed amount under the agreement is calculated under what is referred to as the Rule of 78. The rebate only applies to the charges, not to the principal amount.

Pursuant to the contract the Plaintiff made three installment payments of $7,600.00 before 31 December 1998. The payments of $22,800.00 ($7600.00 x 3) reduced the amount owing under the agreement to $342,000.00 at 31 December 1998. The Plaintiff did not make any payment between January 1999 and April 1999. Interest on overdue payments was charged in March and April 1999 which meant that the amount owing under the agreement stood at $342,482.00 as at 30 April 1999.

At some stage after 29 October 1998 the Plaintiff entered into an agreement with Dominion Transport Company Limited for the sale of Route 240 under Road Service Licence No 12/18/34 and bus registered number CQ008 to Dominion Transport for the sum of $180,000.00. Although there was some indication in the material that Dominion took over the "operation" on 10 January 1999 it was not entirely clear when the bus was delivered to the purchaser. In any event the end result of the transaction was that the sum of $180,000.00 was credited to the Plaintiff's account number 61622 on 31 May 1999. This had the immediate effect of reducing the account balance to $162,483.60. As at that time for the account to be closed the Plaintiff would be entitled to a Rule of 78 rebate of $72,844.55 (on interest) and would need to make a payment of $89,639.05 by way of pay out. There was no material before the Court to indicate that the payment to account 61622 of $180,000.00 was intended by the parties to close the account.

During the course of the trial a letter dated 1 June 1999 was admitted into evidence as exhibit 74. This letter was addressed to the Accountant of the Plaintiff's Company for the attention of Mr Pal at its Lautoka postal address and was signed by Arveen Anand as Finance Manager of the First Defendant Company. It was apparent from the evidence given by Mr Mohan that the Plaintiff placed reliance on its contents. The letter stated:

"Payout of Account No.61622

Reference is made to our discussion this morning and I wish to inform you that we have credited $180,000.00 to the above account yesterday and the proceeds of the sale of vehicle number CQ008 to Dominion Transport Limited.

The above account is now fully paid out and there is a surplus of $13,426.67 that will be forwarded to you soon.

Also note that Credit Corporation (Fiji) Limited has no further interest in the various vehicles under the agreement.

Should you need any clarification please feel free to call me."

It is necessary to comment briefly about this letter. The first paragraph is misleading in the sense that the use of the word "and" after the word "yesterday" could be read as meaning that $180,000.00 was credited to the account and the proceeds of the sale of the bus. I am satisfied that the paragraph should be read in a way where the word "being" replaces the word "and". There was simply no evidence of any other payments to the account other than three payment of $7600.00 and a one-off credit of $180,000.00 for the sale of the bus.

The second and third paragraphs are simply not correct. As noted above the balance owing under account 61622 after $180,000.00 had been credited to the account was $162,483.60.

There was no material put into evidence that would indicate how the finance manager had arrived at the position where the First Defendant owed the Plaintiff the sum of $13,426.67 as at 1 June 1999. The Plaintiff knew or ought to have known that as at 1 June 1999 the second and third paragraphs of that letter were wrong. There was no evidence that any officer of the Plaintiff had attempted to seek clarification of the position from the First Defendant. There was no evidence that the Plaintiff had even made a demand for that amount to be paid by the First Defendant.

The writer of the letter was not called. It appeared that his employment had been terminated some time later. Mr Pal, whom I assume was the accountant at the time, was not called to give evidence. The letter was not discovered in the Plaintiff's list of documents. Neither the letter nor its assertions were pleaded in the Statement of Claim. For these reasons and others which will become apparent later in this judgment I have concluded that the probative value of this letter as evidence is extremely limited. I attach virtually no weight to the second and third paragraphs.

For reasons which I am not able to determine, account 61622 did not record any transaction in the sense of any credit or debit from 31 May 1999 until 21 March 2000. It is the events of March 2000 which represent the area of dispute between the parties and the findings on which will affect the outcome of the claims by the parties.

I shall summarise first the evidence concerning the events of March 2000 that was given on behalf of the Plaintiff by Mr Mohan and then the evidence given on behalf of the First Defendant by Mr Uday Sen.

Mr Mohan stated that he met with a Mr Derbyshire the then General Manager of the First Defendant in March 2000 in Derbyshire's office in Suva. He said the meeting was arranged at the request of the First Defendant. At the meeting Derbyshire told Mohan that account 61622 was in arrears. Derbyshire would not say by how much. Mohan asked for details and documentation. Derbyshire wanted the Plaintiff to start making payments of $2,960.00 per month commencing on and from the end of March. Mohan was not told for how many months. If payments did not start the buses at Lautoka would be repossessed and possibly Dee Cee buses in Suva also. Mohan told Derbyshire that account 61622 had been cleared. Mohan later discussed the matter with his father Dewan Chand who instructed him to start making the payments. The first payment was made at the end of March 2000. That was the evidence given by Mr Mohan for the Plaintiff.

Mr Sen's evidence differed significantly. Mr Sen stated that in March 2000 he took a document to Mr Dewan Chand for signing. He went to the Plaintiff's Head Office in Vatuwaqa. Sen had been told by Derbyshire that he and Dewan Chand had discussed account 61622. Derbyshire gave Sen an internal memo instructing Sen to arrange for account 61622 to be refinanced.

The account was to be refinanced in the amount of $96,000.00 at 12% over 48 months. The amount of $96,000.00 was the balance in account 61622 after rebates had been calculated and deducted. Derbyshire told Sen that this was the amount that the parties had agreed would be refinanced. Sen instructed the compliance team to prepare the documents being the standard asset purchase agreement, a letter and a schedule of securities. After he had checked the documents he telephoned Dewan Chand and told him the documents were ready. He then went to the office in Vatuwaqa in early March 2000. Sen spoke to Dewan Chand briefly and then Dewan Chand signed where indicated by Sen. Dewan Chand said he would get the other director to sign as two signatories were required for the personal guarantees. Sen stated that Dewan Chand signed the standard printed Asset Purchase Agreement and the guarantee. A standard agreement form was admitted into evidence as exhibit 79. The signed documents were returned to the First Defendant on 7 March 2000 with the company seal affixed. Sen said that he had taken only one set of documents to Dewan Chand for signing. Photocopies of the documents were made after they had been returned and after they had been stamped (duty). A copy of the agreement with a letter and a deposit slip book were then sent to the Plaintiff by ordinary mail. Thirteen monthly payments in the sum of $2,960.00 were made by the Plaintiff between 23 March 2000 and 8 March 2001 being a total of $38,480.00. Sen stated that after the documents had been returned by the Plaintiff to the First Defendant account 67314 was opened with a principal of $96,000.00 and charges of $46,080.00 for a total amount of $142,080.00. The material before the Court indicated that nearly all of the monthly payments of $2,960.00 had been made by the Plaintiff using pre-printed deposit slips bearing the account number 67314.

Neither Mr Derbyshire nor Mr Dewan Chand were called to give evidence. Counsel for the First Defendant indicated that Derbyshire had left the company and was residing in New Zealand. Counsel for the Plaintiff indicated that Mr Dewan Chand had been ill. No medical evidence was placed before the court to corroborate that claim. Of the two witnesses who did give evidence, I have concluded that Mr Sen's evidence is more reliable on the basis that he actively participated in the events of March 2000. He appeared to have a better memory of the events. Mr Mohan's only involvement was, according to him, just one meeting with Derbyshire. I can see no reason why the Plaintiff would make 13 payments to the First Defendant in the sum of $2,960.00 using printed deposit slips for the credit of account number 67314 if I were to accept Mr Mohan's evidence. However these occurrences were quite consistent with the evidence given by Mr Sen.

Turning to the documentary evidence that related to March 2000, exhibit 36 showed that on 21 March 2000 account 61622 was credited with an amount of $96,000.00 being the amount to be refinanced.

On 23 March 2000 the amount of $44,062.07 was credited to account 61622 being the rebate on charges calculated under the Rule of 78 as provided for in the Asset Purchase Agreement of October 1998. On 27 April 2000 an additional rebate of $5,000.00 was credited to the account and on 31 May 2001 a further additional rebate of $17,421.54 was credited to the account. The effect of these transactions was that account 61622 acquired a zero balance as at 31 May 2001.

The only reliable evidence to explain these transaction was given by Mr Sen. He stated that Derbyshire had a discretion in relation to additional rebates in respect of charges. He said that Derbyshire had told him that pursuant to his agreement with Dewan Chand the sum of $96,000.00 would be the amount of the refinancing agreement and that the remaining charges owing on account 61622 would be waived over and above the contractual Rule of 78 rebate. Sen stated that Derbyshire had agreed because Dewan Chand was complaining about the charges. Sen also stated that Derbyshire needed approval for this arrangement and that it took some time to get that approval and implement the arrangements he had reached with Dewan Chand.

Exhibit 40 showed that account 67314 was opened on 7 March 2000 with an amount of $96,000.00 together with charges of $46,080.00 for a total of $142,080.00. Thirteen payments of $2,960.00 were made to the credit of that account between March 2000 and March 2001. Thereafter from May 2001 until 30 September 2003 interest on the overdue amount was added on a monthly basis. No further payments were made by the Plaintiff. As at 30 September 2003 the account balance stood at $135,687.61.

The correspondence that passed between the Plaintiff's legal representative and the First Defendant after December 2000 reveals inconsistent versions of events and raises issues concerning reliability and truthfulness. The witnesses were cross-examined about these matters. I accept that when legal practitioners become involved in a commercial dispute, the instructions given to those legal practitioners become somewhat self-serving and the advice given by legal practitioners is usually based on those instructions.

I consider it necessary to make two findings. First of all I find that the First Defendant's files in relation to the Plaintiff's accounts were removed and that the documents in those files went missing. I accept the uncontradicted evidence of Mr Sen on that matter. Secondly I do no accept the evidence given by Mr Mohan that the Plaintiff did not become aware of account 67314 until March 2001. The bank documents clearly indicate that the Plaintiff made 13 monthly payments of $2,960.00 to the credit of account 67314 using printed deposit slips bearing that account number. I do not consider it necessary to review the correspondence any further as these findings adequately deal with the principal issues remaining in dispute between the parties.

In summary then I find that the Plaintiff executed a refinancing agreement in the form of an asset purchase agreement in early March 2000. I find that as a result account 67314 was opened with an opening balance of $96,000.00 as principal together with charges of $46,080.00 for a total of $142,080.00. I also find hat the Plaintiff subsequently made thirteen monthly payments of $2,960.00 to the credit of that account. The last payment was made in March 2001. I also find that there were eight buses that were the security for the new refinancing agreement. Finally, I am satisfied that upon the establishment of account 67314 in March 2000, account 61622 was left with a balance of $66,483.00 which was then reduced to $22,421.00 later the same month as a result of a rebate of $44,062.00 under the Rule of 78. Pursuant to an agreement between Dewan Chand and Derbyshire additional rebates in the sum of $17,421.00 were subsequently credited to the account with the result that by 31 May 2001 account 61622 showed a zero balance.

In reaching these findings I am mindful that neither the original March 2000 refinancing asset purchase agreement nor a counterpart nor a signed copy was produced to the court and put into evidence. The explanation for this was given in evidence by Mr Sen. He stated that the First Defendant's files in relation to its dealings with the Plaintiff had disappeared in late 2000 during or shortly after an internal review of major client files by a Mr Sanjay Chand, the Manager at the Nadi Office. The matter, according to Mr Sen, had been reported to Police, but no charges have been laid and the matter remains unresolved. In such circumstances, the position is clearly stated in Halsbury's Laws of England (Fourth Edition) Volume 17 at paragraph 140:

"When a document has been lost _ _ _ and cannot be found after due search, secondary evidence of its contents is admissible. The court must be satisfied that the document existed, that the loss or destruction has in fact taken place and that a reasonable explanation of this has been given. Thus a diligent search must have been made in good faith in the place where the instrument would most properly be found, but not necessarily in every possible place; nor need the search have been made recently or for the purpose of the cause. _ _ _

The question of the sufficiency of the search is for the judge, and may vary with the circumstances of each case. Thus, if the document is of considerable value _ _ _ greater diligence must have been shown before secondary evidence can be admitted."

In this action the first defendant relied on the oral evidence of Mr Sen to establish the execution of the asset purchase agreement by the Plaintiff. I accept his evidence as to the execution of the agreement by Mr Dewan Chand in his presence in the Plaintiff's office at Vatuwaqa in early March 2000. I also accept his evidence that the duly executed agreement was received by the First Defendant on 7 March 2000 and that stamp duty was subsequently paid by the First Defendant. I also accept his evidence that copies of the stamped agreement were then made and that a copy of the agreement together with a covering letter and deposit slip book were sent to the Plaintiff by post at its registered office at Vatuwaqa. I accept this evidence on the basis that no reasonable explanation was offered as to why Mr Dewan Chand was not called to give evidence. He was the one person who could have given evidence that would have challenged the evidence given by Mr Sen. I have therefore inferred that had Mr Dewan Chand been called to give evidence then, on this issue, his evidence would not have been of any assistance to the Court. (See Jones v Dunkell [1959] HCA 8; (1959) 101 CLR 298).

As for the terms and conditions of the new asset purchase agreement, the First Defendant relied on the oral evidence given by Mr Sen and what was described as a copy of the agreement. The copy document consisted of a standard printed asset purchase agreement proforma with the parties details and the terms specific to the particular agreement added on the basis of information provided by Mr Sen. The information that Mr Sen provided was based on his memory of what he had been instructed to do by Derbyshire and from what he had read in the document which he had taken to Dewan Chand for signing.

In Halsbury's Laws of England (supra) at paragraph 10 it is stated:

"_ _ _ once it has been shown that, for example, a private document cannot be produced for reasons which admit the giving of secondary evidence, the contents may be proved by any type of secondary evidence, for example by the production of a copy which can be proved to have been correctly made from the original, a counterpart or a draft, by sworn oral testimony as to the contents of the document, or as authorised by statute."

It would seem to me that the admissibility of oral testimony as secondary evidence of the contents of a contract should at least be limited to a witness who has in fact read the document. I have carefully considered the evidence given by Mr Sen and I have concluded that his evidence is reliable and credible on this matter. I am satisfied that he had read the relevant parts of the agreement.

I have concluded that his memory of the contents of the asset purchase agreement is such that I am able to determine the relevant terms of that agreement as they applied to the parties.

Furthermore, I am satisfied that the document that was admitted into evidence was a copy for the purposes of section 10 of the Civil Evidence Act 2002.

The starting point is the Act itself. Section 2 of the Act is the interpretation section and states, amongst other things, that in the Act, unless the context otherwise requires, "copy", in relation to a document, means anything onto which information recorded on the document has been copied, by whatever means, whether directly, or indirectly. In the same section "document" is defined as meaning "anything in which information of any description is recorded".

In Bailey v Hinch [1989] VicRp 9; [1989] VR 78 Gobbo J considered the meaning of the word "copy" in the context of the dictionary meaning of the word. At page 87 Gobbo J said:

"The one dictionary meaning put before the learned Magistrate was supplemented before me by many more to the like effect _ _ _.

The common or ordinary meaning of the word "copy", namely, a reproduction, does not of itself answer the question as to what the document reproduces. _ _ _. A document may in my view properly reproduce the terms of an order, even if the order is made orally or if the original order is transmitted in some mechanical form other then conventional writing."

I consider that these comments are consistent with the statutory definition of "copy" contained in section 2 of the Act. The statutory definition assumes the existence of an original "anything" which may or may not still be in existence or available. If a person memorises a piece of prose which appeared in a school reader and then from his memory, writes in long hand many years later the same piece of prose then he has produced a copy. It does not matter whether the book is still available or has gone out of print and long since disappeared from library shelves. It may not even matter whether the copy appears in the same format, as long as the words appear in the same order.

In this case I have already indicated that I accept Mr Sen's evidence that the new Asset Purchase Agreement executed by the Plaintiff Company was in the standard form of agreement used by the First Defendant.

In my judgment the copy admitted into evidence is the same standard document with the relevant details added on the basis of Mr Sen's memory of the details that appeared in the document executed by the Plaintiff. I consider his memory sufficiently reliable to conclude that the document admitted into evidence is a copy for the purposes of section 10 of the Civil Evidence Act.

It follows that I must find against the Plaintiff in respect of its claim that it had overpaid the First Defendant. I now propose to consider briefly the claim for damages for trespass and unlawful seizure. The rights and obligations of the parties are set out in the agreement under the heading "Terms and Conditions of Hiring". Under the agreement the buses described in the schedule are referred to as "the goods."

Having considered the evidence I have concluded that as at 5 May 2003 the Plaintiff had not made any payment in respect of account 67314 since March 2001. As a result I accept that the amount owing as at 5 may 2003 was $124,724.00. I am satisfied that the Plaintiff was in breach of the agreement and that the breach was of a kind that entitled the First Defendant to exercise the right given under clause 7 (i) (a) (B) and clause 7 (ii) (a). The effect of these clauses is that if the Plaintiff is in breach of an essential condition then, even if previous defaults have been waived, the First Defendant is entitled to take custody of the buses and can do so without notice to the Plaintiff. I am satisfied that between 5 and 7 May 2003 the Plaintiff continued in breach of an essential condition of the agreement as defined in the agreement. I am satisfied that the Second Defendant acting as agent for and on the instructions of the First Defendant was entitled to take the buses into custody.

The effect of the terms and conditions of an asset purchase agreement were considered by the Fiji Court of Appeal in ANZ Banking Group Ltd –v- Merchant Bank of Fiji (1994) 40 FLR 266. In the context of ownership and seizure of goods, the Court of Appeal stated that the definition of owner in the Traffic Act Cap 176 was for the purposes of that Act only and did not affect the proprietary right of the Plaintiff so as to make it the owner at common law. As a result the Plaintiff's claim for damages for trespass and unlawful seizure must fail.

On the material before the Court and for the reasons already stated I find in favour of the First Defendant in respect of its counterclaim. The amount claimed in the writ is for the outstanding amount as at 30 September 2003 being $135,687.61. From that date till the date of judgment contractual interest is claimed at 25%. This is the effect of clause 12 and the Schedule on the first page of the agreement. The amount owing under the agreement as at the end of October 2011 was $1,088,503.91. Furthermore, I find that the First Defendant is entitled to that contractual interest up to the date of judgment. The position in respect of interest after judgment requires consideration.

As already noted the amount claimed has increased to the sum of $1,088.503.91 as at the end of October 2011. That amount will increase further up to the date of the judgment.

In his closing submissions Counsel for the First Defendant referred the Court to clause 4 of the agreement. Under clause 4 (r) the Plaintiff agreed:

"To pay interest at the Default Rate specified in the Schedule to this instrument on any moneys payable under the Agreement, AND under any judgment obtained by (the First Defendant) against (the Plaintiff) in respect of moneys payable under the Agreement, which may from time to time be overdue."

Although that clause appears to support the First Defendant's submission that contractual interest in the form of default interest at the rate of 25% should continue after judgment and into the future so long as moneys remain owing, it is necessary to consider the effect of section 4 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap 27. Section 4 was inserted into the Act pursuant to section 2 of the Law Reform (Miscellaneous Provisions) (Death Interest) (Amendment) Decree 2011 which came into force on 28 October 2011. Section 4 (1) states:

"Every Judgment Debt shall carry interest at the rate of four cents per centum per annum from time of entering up the Judgment until the same shall be satisfied, and such interest may be levied under a Writ of Execution on such Judgment."

It should be noted that section 4(1) is in almost identical terms to section 17 of the Judgments Act 1838 (UK). Pursuant to section 22 of the High Court Act Cap 13 the position was that section 17 of the Judgments Act 1838 was applied in Fiji until 28 October 2011.

There is no doubt that, under the legislation, post judgment interest is an automatic entitlement that flows from the judgment itself. The issue that arises for determination by this Court is whether the First Defendant can rely on clause 4 to claim post judgment interest at 25% or whether it is limited to 4% under the Act. In 26 Halsbury's Laws of England 4th Ed in paragraph 553 it is observed that:

"When, however, there is an agreement between the parties that a higher rate than (that specified in the Act) is to be accrued by a judgment or order, then a fieri facias (i.e. execution) will issue on the judgment or order at that higher rate."

The relevant footnote states that it is common practice in mortgages and charges to require interest to be paid at a specified rate (when higher than the Act) as well before as after any judgment.

In Blackstone's Civil Practice 2011 at paragraph 62.14 the following appears under the heading "Interest pursuant to contract.":

"Express terms for the payment of interest often also provide that interest at the agreed rate shall be payable before and after proceedings, and even before and after judgment, until actual payment."

The views expressed above lead to the conclusion that the purpose of section 17 of the Judgments Act 1938 and section 4 of the Fiji legislation is to provide for a post judgment interest rate that will automatically apply unless the parties have agreed that a higher rate is to be applied as default interest when there is a breach of the contract. Under those circumstances I have concluded that the First Defendant is entitled to post judgment interest at the rate of 25% from the date of the judgment till payment.

On the question of costs, the Defendants have been successful and are entitled to costs. The trial lasted five days. I am prepared to fix professional costs summarily in the amount of $4,000.00 plus disbursements.

The Orders of the Court are:

1. The Plaintiff's claim against the Defendants is dismissed
   
2. Judgment for the First Defendant in the sum of $1,088,503.91 up to 31 October 2011 and interest thereafter at 25% to the date of judgment together with continuing interest at the contractual rate of 25% in accordance with clause 4 of the agreement (ex 79) to payment.
   
3. The Plaintiff is to pay the Defendants' professional costs which are fixed summarily in the sum of $4,000.00 plus disbursements.
   

4. Stay of 30 days.

W D Calanchini
Judge

27 January 2012
At Suva