Yan Xiu Hua v Huang Tan Hsiang [2015] FJHC 724; HBC137.2003 (30 September 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 137 of 2003

BETWEEN:

YAN XIU HUA
PLAINTIFF

AND:

HUANG TAN HSIANG and HORING HUEY JEN
DEFENDANTS

BEFORE : Hon. Justice Kamal Kumar

COUNSEL : Mr D. Sharma and Ms E. Fatiaki for the Plaintiff
: MrA. Sen for the Defendants

DATE OF HEARING : 22 April 2004
DATE OF JUDGMENT : 30September 2015

JUDGMENT

Introduction
1. On 10 January 2002, Plaintiff filed Writ of Summons and Statement of Claim seeking following relief:-

"(a) Judgment in the sum of $35,000.00 (Thirty Five Thousand Dollars);

(b) Alternatively, an Order that the Defendants do forthwith transfer to the Plaintiff the property in Certificate of Title No. 29754;

(c) Interest from 31st October 2000 to the date of judgment under section 3 of the Law Reform (Miscellaneous Provisions) (Interest) Act, Cap. 29;

(d) Post Judgment interest pursuant to the Judgments Act 1838;

(e) Costs;

(f) Such further or other relief as this Honourable Court may deem just and equitable."

2. On 5 February 2002, Defendant filed Statement of Defence, denying Plaintiff's claim and relief sought by Plaintiff.

3. On 11 February 2002, Plaintiff filed Summons for Directions and on 6 March 2002, being returnable date of the Summons Order in terms of the Summons was made.

4. On 7 March 2002 and 16 April 2002, Plaintiff and Defendants filed their Affidavit Verifying List of Documents respectively.

5. On 6 May 2002, Plaintiff filed Notice requesting Pre-Trial Conference ("PTC").

6. On 12 August 2002, Plaintiff filed Notice of Motion dated 12 August 2002, seeking an Order that Pre-Trial Minutes annexed to the Supporting Affidavit be adopted as Minutes of the Pre Trial Conference or alternatively PTC be dispensed with.

7. On 3 September 2002, Court adjourned this matter to 11 September 2002 for PTC to be held in Deputy Registrar's Chambers.

8. On 11 September 2002, Court dispensed with requirement for parties to hold PTC.

9. Defendants in this matter were not represented except during trial. Therefore I cannot see the reason behind Plaintiff's filed Notice Requesting PTC and Notice of Motion to dispense with PTC.

10. Order 34 Rule 2(1) of the High Court Rules which requires parties to hold Pre-Trial Conference provide as follows:-

"2.-(1) The provision is this rule apply only in proceedings in which the parties are represented by solicitors."

11. The rationale for this rule is obvious and that is a litigant in person cannot be expected to contribute meaningfully to PTC in terms of agreeing to facts, admissibility of evidence and various other factual and legal issues that need to be sorted out during PTC.

12. On 8 January 2004, Plaintiff filed Summons to Enter Action for Trial which was returnable on 19 February 2004.

13. On 19 February 2004, his Lordship Justice Jitoko (as he then was) adjourned this action for hearing on 22 April 2004.

14. This matter was heard by his Lordship Jitoko (as he then was) and adjourned for Judgment on Notice.

15. Judgment not having been delivered this matter was next called on 24 August 2010 before her Ladyship Justice Wati who adjourned it to be called before his Lordship Justice Hettiarrarchchi (as he then was) on 17 September 2010.

16. On 17 September 2010, his Lordship adjourned this matter for Judgment on Notice.

17. This matter was next called on 12 July 2013, in this Court when parties agreed for me to deliver judgment on basis of evidence adduced before his Lordship Justice Jitoko.

18. I then adjourned this matter for Judgment on Notice.

Background/Agreed Facts

19. On 5 May 2000, Plaintiff as Seller and Defendants as Buyer entered into Agreement for Sale of Equipment ("the Agreement").

20. Pursuant to the Agreement:-

(i) Defendants agreed to purchase equipment listed in the schedule to the Agreement for $30,000.00;

(ii) Title and risk to the equipment was to pass to Defendants upon delivery;

(iii) Defendants were to take delivery of equipment from Plaintiff;

(iv) Plaintiff was to lend a sum of $5,000.00 to the Defendants;

(v) Total sum of $35,000.00 was to be paid by Defendants to Plaintiff by 31 October 2000;

(vi) To secure payment of the sum of $35,000.00 Defendants agreed to charge land known as Lot 1 on DP7716 comprised in Certificate of Title No. 29754 containing 3.4331 hectares which was being subdivided and was subject to DP Nos. 8188 and 8189;

(vii) Defendants consented to lodgment of caveat against the entire property and upon registration of DP 8188 and 8189 the charge was to be released in exchange for replacement charge to be given owner lots 1 and 2 on DP8189;

(viii) Charge was to be released upon payment of $35,000.00 by Defendants to the Plaintiff.

Disputed Facts

21. Disputed facts are:-

(i) Whether Defendants agreed to pay Plaintiff $35,000.00 under the Sale and Purchase Agreement?;

(ii) Whether item in Sale and Purchase Agreement was owned by Plaintiff?;

(iii) Whether Defendants owed $35,000.00 to Plaintiff?

Issues for Determination

22. Issue for determination is as to whether Defendants are liable to pay Plaintiff $35,000.00 under the Agreement.

23. In this instance, Plaintiff has not claimed or particularised as claim for breach of the Agreement but sought Judgment for sum payable pursuant to Agreement or transfer of property charged to the Plaintiff pursuant to the Agreement.

24. From pleading only issue that needs to be determined is as to whether Defendants are liable to pay the sum of $35,000.00 (Thirty-five thousand dollars) to the Plaintiff pursuant to Agreement or alternatively transfer the property charged pursuant to the Agreement to the Plaintiff.

Documentary Evidence

25. Following documents were tendered in evidence as Exhibits:

Exhibit No.	Document
P1	Copy of the Bill of Lading and entry of items imported by the Plaintiff;
P2	Invoices of Plaintiff's purchase of items from Kung Wah Trading Company Limited (Japanese company);
P3	Acknowledgement by the Defendant of receipt of loan monies lent by the Plaintiff to the Defendant totaling $5,000.00;
P4	Defendants subdivision plan of CT 29754;
P5	Copy of Agreement between the Plaintiff and the Defendants dated 5 May 2000;
P6	Demand Notice from Bulewa & Associates to the Defendants dated 7 November 2000.
D1	Photocopy of letter dated 21 June 2000 from Plaintiff to Defendants
D2	Photocopy of Certificate of Title No. 29751
D3	Photocopy of letter from Peter Howard & Associates to Kelemedi R. Bulewa (Response)

Plaintiff's Case
26. Plaintiff gave evidence and called Emosi Dakuni as a witness.

27. Plaintiff during evidence in chief gave evidence that:-

(i) In 1992, Kung Hua Trading was found which is owned by her sister and she runs it;

(ii) Company is involved in the business of Exporting/Importing of sea cucumber and importing of spare car parts from Japan;

(iii) She resided at 15 Toti Street,Wailada which has two storey building and bottom flat is used for storing of spare parts of vehicle and fishing equipment;

(iv) Spare parts were bought from Japan from Wave International Co. Ltd as is shown in Exhibits P1 and P2;

(v) She knew First named Defendant for a long time but did not know the Second named Defendant;

(vi) Defendants approached her for loan of $5,000.00 which she gave by two payments of $3,500.00 and $1,500.00;

(vii) Apart from items listed in the Agreement she also sold some tyres;

(viii) The Agreement was signed by her and the Defendants and their signatures were witnessed and that Second named Defendant's signature was witnessed by Jim Pillai;

(ix) Payment was deferred by six (6) months to enable Defendants to establish business and be able to pay;

(x) She was shown the land that belonged to the Defendants and was also shown the subdivision sketch plan (Exhibit P4);

(xi) Defendants have not paid anything;

(xii) Defendants did not pay anything and demand for payment was served on Defendants through Bulewa & Co. (Exhibits P6).

28. During cross-examination Plaintiff stated as follows:-

(i) She did not know if subdivision has materialised;

(ii) Items were collected by Firstnamed Defendant and Jim Pillai;

(iii) Denied buyer was Jim Pillai and that only Firstnamed Defendant dealt with her;

(iv) Denied that security was given by Jim Pillai;

(v) Denied that Jim Pillai raised with lawyer that he was not the buyer when he found it out;

(vi) Denied being told by Firstnamed Defendant that subdivision could not be approved;

(vii) Caveat was lodged on whole title;

(viii) Crane was used with help of her staff to load the items and Jim Pillai was present;

(ix) Confirmed writing to Defendants on 21 June 2000 (Exhibit D1).

29. During re-examination Plaintiff gave evidence that:-

(i) Agreement was not amended;

(ii) Letter of 21 June 2000, related to some left-over parts.

30. Plaintiff's second witness was Emosi Dakuni of Block 6, Stage 1, Vesida Place, Driver for the Plaintiff.

31. Mr Dakuni during evidence in chief gave evidence that:-

(i) He has been working for the Plaintiff since 1995 as Driver and doing other odd works;

(ii) He knows the Firstnamed Defendant and identified him in Court;

(iii) Items were loaded by Firstnamed Defendant, Jim Pillai and two (2) others;

(iv) He assisted in loading these items and that heavy goods were loaded by winch truck;

(v) He assisted in unloading the items at an empty house in Samabula and it took them 3 to 4 trips;

(vi) All items were collected except for an old forklift;

(vii) He was not aware of any other dealing.

32. In cross-examination Mr Dakuni stated that both Firstnamed Defendant and Jim Pillai were always present during delivery period.

Defendant's Case

33. Firstnamed Defendant gave evidence himself and did not call any other witness.

34. During examination in chief Firstnamed Defendant gave evidence that:-

(i) In reference to subdivision plan (Exhibit P4) shown he stated that only twenty five (25) lots can be sold and property was owned by his uncle, (Huang Ching-Heng)

(ii) In response to question if he returned $35,000.00 to Plaintiff he stated "No, only $5,000.00" because he only borrowed $5,000.00 and that $30,000.00 was not owed because the equipment did not belong to the Plaintiff but to Choi in Taiwan;

(iii) Security was to be provided by Jim Pillai;

(iv) He signed the Agreement believing that him and Jim Pillai were the buyers;

(v) In reference to Exhibit D1 he stated he could not remove all the parts because of 2000 coup;

(vi) Confirmed letter (Exhibit D3) was sent by Peter Howard and Associates denying that Defendants owed any monies to Plaintiff;

(vii) In respect to Plaintiff's second witness he stated that he was lying.

35. In cross-examination Firstnamed Defendant stated as follows:-

(i) He was farmer in Taiwan also lawyers clerk and have learnt English and can read English;

(ii) One Indian man helped him draft Statement of Defence and he understood contents of the same;

(iii) Letter by Peter Howard & Associates was done by a Chinese friend;

(iv) A European lawyer was present at time of signing of the Agreement;

(v) When he signed the Agreement he was of the impression that he was only providing security;

(vi) Agreed that he signed the Agreement voluntarily;

(vii) Denied that he introduced Jim Pillai to Plaintiff;

(viii) He did not see the spare parts and did not understand the schedule to the Agreement;

(ix) He was forced by "Mafia Queen" to transfer half share of property to his uncle;

(x) He did not see Jim Pillai because Jim Pillai fell sick.

36. In re-examination Firstnamed Defendant gave evidence that:-

(i) Lawyer did not go through the Agreement;

(ii) He gave $4,000.00 out of $5,000.00 to Jim Pillai to buy pipes;

(iii) Defendant did not pay the sum $35,000.00 or any sum at all as per the Agreement.

37. From the evidence recorded I make following findings:-

(i) Plaintiff and Defendants did enter into the Agreement whereby Defendants agreed to obtain a loan of $5,000.00 and buy spare parts for sum of $35,000.00;

(ii) Defendants took possession of the spare parts except the old forklift;

(iii) Defendants understood the contents of the Agreement and I do not accept his evidence that he did not understand the schedule to the Agreement;

(iv) Defendants are of full age and had capacity to understand and appreciate what they were entering into. There was no contrary evidence and Firstnamed Defendant did not say what he understood the schedule to mean.

38. I hold that Defendants do not owe the Plaintiff the sum of $30,000.00 for the spare parts for following reasons:-

(i) When Plaintiff entered into the Agreement with the Defendants there was no evidence that Plaintiff was the rightful owner of the spare parts and had authority to enter into the Agreement to pass the ownership of the spare parts to the Defendants;

(ii) Plaintiff was working for Kung Hua Trading Co. Ltd. ("the Company") which was owned by her sister;

(iii) Spare parts subject to the Agreement was as per Plaintiffs evidence was shipped by Wave International Co. Ltd to the Company as shown in Exhibit P1 (Bill of Lading);

(iv) Plaintiff is therefore not entitled to the benefit of Agreement for sale of spare parts which was not owned by her at first place.

39. However, I hold that Defendants do owe Plaintiff the sum of $5,000.00 which they admitted borrowing from the Plaintiff. If Defendants gave $4,000.00 of that sum to Jim Pillai then that is a matter between Defendants and Jim Pillai. In any event no evidence has been provided to establish that $4,000.00 was paid by Defendants to Jim Pillai.

40. I have no option but to enter Judgment in favour of the Plaintiff for $5,000.00 only plus interest thereon.

41. I make following Orders:-

(i) Defendants jointly and severally pay the Plaintiff the sum of $5,000.00;

(ii) Defendants jointly and severally do pay the Plaintiff interest on the sum of $5,000.00 at the rate of 6% per annum from 1 November 2000 to date of this Judgment;

(iii) Defendants jointly and severally do pay costs of this action to Plaintiff assessed in the sum of $1,500.00.

K. Kumar
Judge

At Suva
30 September 2015

R. Patel & Co. for the Plaintiff
Defendants in Person