Credit Corporation (Fiji) Ltd v Shamshood [2020] FJHC 812; HBC28.2016 (22 July 2020)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO.: HBC 28 OF 2016

BETWEEN : CREDIT CORPORATION (FIJI) LIMITED

PLAINTIFF

AND : MOHAMMED SHAMSHOOD a.k.a. MOHAMMED

SAMSOOD SAKUR T/A SAM CIVIL SERVICES

DEFENDANT

APPEARANCES/REPRESENTATION
PLAINTIFF : Mr Filipe [Haniff Tuitoga]

DEFENDANT : Mr O’Driscoll on instructions [Maqbool & Company]

RULING BY : Acting Master Ms Vandhana Lal

DELIVERED ON : 22 July 2020

INTERLOCUTORY RULING
[Discovery for Specific Documents]

Application

1. This is the Defendant’s application dated 05^th June 2017 for specific discovery and further orders for the matter to be transferred to the Labasa High Court.
   

The Defendant is asking for specific discovery from the Plaintiff of the loan file containing the dealings between the Plaintiff and the Defendant together with all documents enumerated in the Plaintiff’s list of documents in schedule 1.

The said application is supported by an affidavit of the Defendant sworn on 01^st June 2017 and made pursuant to Order 4 Rule (1) (4); Order 24 Rule 7 and Order 32 of the High Court Rules.

2. The Plaintiff filed an affidavit of one Reshma Goundar sworn on 18^th August 2017.
   
3. A reply to the Plaintiff’s affidavit was filed by the Defendant on 16^th October 2017.
   

Defendant’s Contention

4. The cause of action arose in Labasa and a similar proceeding was filed in Labasa being High Court Civil Action No. 13 of 2012 which was dismissed on 17^th November 2015.
   

The Plaintiff is refusing to provide copies of documents enumerated in their list of documents together with a copy of their loan file.

The Plaintiff said to be asking unreasonable costs and behaving in an oppressive manner.

Plaintiff’s Position

5. The proceeding was filed in Suva on the strength of clause 2 of Bill of Sales Nos. 0664, 0665, 0667 and 0668.
   

The proceedings in Labasa were withdrawn and struck out on 17^th November 2015.

The Defendant is happy to provide the Defendant with copies of schedule 1, part 1 of its list of documents on payment of reasonable costs.

For obvious reasons the Plaintiff is not prepared to disclose its loan files to the Defendant.

Issues for Determination

6. Following needs to be determined by the court:
   • (i) Should the Plaintiff disclose to the Defendant copy of the loan file?
   • (ii) Who bears the cost for disclosing the documents?
   • (iii) Where the documents should be inspected?
   • (iv) Should the matter be transferred to Labasa Court?
     

Plaintiff’s substantive claim

7. The Plaintiff’s claim relates to a loan account No. 172007 the Defendant held with the Plaintiff in December 2011.
   

The Plaintiff agreed to lease and the Defendant agreed to borrow $595,633.92. The loan account no. 172007 was re-written to loan account 312487 at the request of the Defendant.

The loan was secured with following securities:

(a) Bill of Sale No. 0664 over motor vehicle registration numbers DM 155 and ED 883 registered on 22 March 2012
(b) Bill of Sale No. 0665 over motor vehicle registration numbers EW 807 and EU 222 registered on 22 March 2012
(c) Bill of Sale No 0666 over motor vehicle registration numbers EG 628 and FB 673 registered on 22 March 2012
(d) Bill of Sale No. 0667 over motor vehicle registration numbers FB 704 and EU 521 registered on 22 March 2012
(e) Bill of Sale No. 0668 over motor vehicle registration numbers FR 080 and FR 081 registered on 22 March 2012
(f) Third Party Bill of Sale No. 0669 over motor vehicle registration numbers EG 418 and FB 235 registered on 22 March 2012
(g) Third Party Bill of Sale No. 0670 over motor vehicle registration numbers DA 315 and CO 109/DSL004 registered on 22 March 2012
(h) Third Party Bill of Sale No. 0671 over motor vehicle registration number FJ 498 registered on 22 March 2012

The Defendant was to pay the Plaintiff $15,387.21 via 59 monthly installments and one installment of $15,387.19.

The defendant is said to have defaulted in repayments.

Under the third party Bills of Sale [No. 0669, 0670 and 0671], the Defendant and a Jaburah Bi would pay the Plaintiff on demand all monies owed by the Defendant.

The Plaintiff served on the Defendant default notice dated 14^th March 2012 and later on 15 March 2012 a repossession notice. Another repossession notice was served on 06^th June 2016.

The following securities were seized from the Defendant:

- Toyota Hilux 4x4 Double Cab registration No. EG 628 and sold for $3,000.
- Toyota Land Cruiser Pickup registration No. EU 222 and sold for $3,500.
- Komatsu Towed Roller registration No. DA 315 and sold for $11,500.
- Toyota Hilux Double Cab registration No. FB 673 [could not be sold as chassis was tampered with and Land Transport Authority refused to allow transfer].

The Defendant has failed and/or refused return other securities.

Despite order of 31^st May 2012 in Labasa Civil Action 13 of 2012, the Plaintiff was not able to identify and/ or sell the security as they had been tempered with.

Police have since seized the other securities and kept them in their custody for criminal action against the Defendant.

As at 21^st March 2012 the Defendant owes the Plaintiff $926, 350.83 and $47, 841.16 for safekeeping of securities now kept in Police Custody.

Should the Plaintiff disclose to the Defendant copy of its loan file containing the dealings between the Plaintiff and the Defendant together with all documents enumerated in Plaintiffs list of documents in schedule 1? What cost should be paid? And where should inspection be carried out?

8. The Plaintiff is willingly to provide to the Defendant with copies of document in schedule 1 part 1 of its list of documents on payment of reasonable photocopy costs.
   
9. However it states that for obvious reasons it is not prepared to disclose its loan files to the Defendant.
   
10. The Defendant alleges that the Plaintiff is asking for unreasonable costs [no details are provided to the court] and behaving in oppressive manner.
    
11. According to the Defendant, he cannot afford to travel to Suva to do inspections and photocopy. The inspection should be done at a venue in Labasa.
    
12. Order 24 Rule 3 of the High Court Rules reads:
    • (1) Subject to the provisions of this Rule and of Rules 4 and 8, the court may order any party to a cause or matter ............... to make and serve on any other party a list of documents which are or have been in his or her possession, custody or power relating to any matter in question in the cause or matter, and may at the same or subsequently also order him or her to make and file an affidavit verifying such a list and to serve a copy thereof on the other party;
      
    • (2) ...............................................................................;
      
    • (3) An order under this rule may be limited to such documents or classes of document only, or to such only of the matters in question in the cause or matter, as may be specified in the order.
      
13. Whilst Rule7 reads:

(1) Subject to rule 8, the Court may at any time, on the application of

any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is, or has at any time been, in his possession, custody or power, and if not than in his possession, custody or power, when he parted with it and what has become of it.

(2) An order may be made against a party under this rule not

withstanding that he may already have made or been required to make a list of documents or affidavit under rule 2 or rule 3.

(3) An application for an order under this rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this rule has, or at some time had, in his possession, custody or power the document, or class of document, specified or described in the application and that it relates to one or more of the matters in question in the cause or matter.

14. Under rule 8,

On the hearing of on application for an order under rule 3 or 7, the court, if satisfied that discovering is not necessary, or not necessary at that stage of the cause or matter, may dismiss or as the case may be, adjourn the application and shall in any case refuse to make such an order if and so far as it is of opinion that discovering is not necessary either for disposing fairly of the cause or matter or for saving costs.

15. The Defendant is asking for discovery of the loan file containing the dealings between the Plaintiff and the Defendant apart from the documents enumerated in the Plaintiff’s list of documents.
    
16. In his affidavit in support he has failed to outline why is it necessary for the court to make order for discovery of the loan file neither has the Plaintiff outlined reasons why it is not prepared to disclose the loan file.
    
17. However in his affidavit in reply the Defendant states that he will only be able to fully defend the proceedings if he has all the relevant documents contained in the loan file concerning his dealing with the Plaintiffs.
    
18. The Plaintiffs claim is in relation to the loan account 172007 and re-written loan account NO. 312487 via bill of sale No.0664, 0665, 0666, 0667 and 0668 and third party Bill of Sale No. 0669, 0670 and 0671.
    
19. The Defendant denies the execution of the BOS and/or there to be any valid bills of sale on any of the chattels.
    
20. The Defendant further claims that the Plaintiff did not provide to him written copy of the contract documents; a pre-contractual statement under section 15 of the consumer credit act; information statements informing of the debtor’s statutory rights and obligation.
    
21. The onus is first on the applicant to establish the following:
    • (i) Identify the particular document or documents or class of documents that he seeks;
    • (ii) Show a prima facie case that the said documents do in fact that exits or did existed;
    • (iii) Establish that these documents are relevant to the issues in question in the action that is the document either enables the applicant to advance his own case or damage the case of the opponent; and
    • (iv) Show that the documents were in possession, custody or power of the other party.

See Singh v Minjek Investment Corporation Ltd & Another Suva High Court Civil Action HBC 148 of 2006.

22. There is a loan file relating to the dealings between the Plaintiff and the Defendant which would be relevant to advance the Defendant’s case and or damage the case of the Plaintiff.
    
23. The Plaintiff has failed to show why the documents in the loan file cannot be disclosed i.e. are the documents: (1) protected by legal professional privilege; (2) documents tending to criminate or expose to a penalty the party who would produce them ; or (3) privileged on the ground of public policy.
    
24. Hence the Defendant’s application succeeds and orders will be made accordingly.
    

Should the matter be transferred to Labasa?

25. The Defendant is operating from Labasa and the cause of action arose in Labasa. There is counterclaim of unlawful seizure of certain items [paragraph 23 of the counterclaim]. The said items were seized from the Defendant’s premises in Vanua Levu.
    
26. Order 4 rule 1 of the High Court Rules reads

“Proceedings must ordinarily be commenced in the High Court Registry located in the Division in which the cause of action arises.”

27. According to the Defendant, the Plaintiff by now instituting this claim in Suva High Court is causing the Defendant inconvenience and costly.
    
28. The Plaintiff claims it filed this proceeding, in Suva on basis of clause 21 of the Bill of Sales.
    
29. It has however only annexed to the affidavit, page 7 of a document which does not confirm that the said page is part of the Bill of Sale relating to the current proceeding.
    
30. Previously the Plaintiff had instituted action against the Defendant in Labasa High Court which was later withdrawn and I do not find any reason why it could not have filed this current proceeding there.
    
31. I find the proper venue for this proceeding is the Labasa High Court.
    

Final Orders

32. The Plaintiff within 21 days to make an affidavit pursuant to Order 24 rule 7 regarding the contents of the loan files relating to the Defendant.
    
33. Inspections of all documents can be done at the Plaintiff’s branch office at Labasa (if any) either wise inspection to be done at the Plaintiff’s solicitors office.
    
34. Copies of documents so requested by the Defendant to be supplied upon payment of reasonable photocopy costs.
    
35. Matter is transferred to the Labasa High Court.
    

................................
Vandhana Lal [Ms]

Acting Master

At Suva.