Pacific Energy (South West Pacific) Pte Ltd v Shah [2024] FJHC 572; HBC34.2021 (25 September 2024)

IN THE HIGH COURT OF FIJI
NOTHERN DIVISION
AT LABASA
[CIVIL JURISDICTION]

Civil Action No. HBC 34 of 2021

BETWEEN :
PACIFIC ENERGY (SOUTH WEST PACIFIC) PTE LIMITED a company limited by shares registered under the Companies Act 2015 of Fiji, having its registered office at Level 7, Vanua House, Victoria Parade, Suva.
PLAINTIFF

AND :
NAZIM SHAH of Batinikama, Labasa, Fiji.
FIRST DEFENDANT

AND :
KHATOON BI of Batinikama, Labasa, Fiji.
SECOND DEFENDANT

Before : Acting Master L. K. Wickramasekara

Counsels : Howards Lawyers for the Plaintiff
John Prasad Lawyers for the Defendant

Date of Hearing : Tuesday, 10^th of September 2024
Date of Ruling : Wednesday, 25^th of September 2024

RULING

01. The application before this Court currently is a Summons filed by the Plaintiff for Summary Judgment pursuant to Order 14 Rule 1, of the High Court Rules, filed on 06/02/2024. This summons is supported with the Supporting Affidavit of Jone Waqasokolala, Manager Credit and Customer Care for the Plaintiffs company, as sworn on 02/02/2024.

02. Defendants have objected to this summons and have filed an Affidavit in Opposition as sworn by the first Defendant on 08/03/2024.

03. Plaintiff thereupon filed an Affidavit in Reply as sworn by Jone Waqasokolala, Manager Credit and Customer Care for the Plaintiffs company, on 15/03/2024.

04. As per the directions of the Court, both parties have filed comprehensive written submissions regarding this application and the Hearing was held on 10/09/2024 where oral submissions were also made.

05. Having carefully considered the affidavit evidence before this Court and the legal submissions on behalf of the parties, the Court now proceed to rule on the application.

06. The Plaintiff in this case filed its initial Writ of Summons and the Statement of Claim on 03/08/2021. An Amended Writ of Summons and a Statement of Claim have been filed on 12/10/2023 with leave of the Court.

07. Pursuant to the Amended Statement of Claim, the Plaintiff is a company engaged in the business of supplying and retailing petroleum products in Fiji. The Defendants are the Directors of Jims Service Station Pte Ltd, a company operating two service stations retailing petroleum products.

08. Jims Service Station Pte Ltd had entered into two agreements with the Plaintiff (Supply Agreement dated 23/08/2014 and Operating Agreement dated 01/12/2016) for purchase of petroleum products to the two service stations and has also signed and submitted a Credit Application which included a personal guarantee by both the Defendants for purchase of petroleum products on credit from the Plaintiff.

09. Pursuant to the said personal guarantee tendered by the Defendants, both the Defendants had undertaken the performance of all obligations of the Jims Service Station Pte Ltd and to pay to the Plaintiff any monies owed by the Jims Service Station Pte Ltd to the Plaintiff. Pursuant to the above agreements, the Jims Service Station Pte Ltd was also liable to pay interests at the rate of 15% per annum under the Supply Agreement and under the Operating Agreement a default interest rate (the base rate for commercial lending from time to time at the Plaintiffs bank as at the date of the default plus 5%).

10. The Amended Statement of Claim further submits that as at the date of 19/12/2018 the Jims Service Station Pte Ltd was indebted to the Plaintiff in the sum of $ 738470.93 for the petroleum products supplied by the Plaintiff under the above two agreements and with the due interest on the above sum the total debt had accumulated to the sum of $ 1050787.41 which is inclusive of interests as at 30/09/2021. Accordingly, pursuant to the personal guarantee made by the Defendants, it is claimed that the Defendants are jointly and severally liable to pay the above total sum along with the daily interests accrued on the total sum.
    
11. Whereas the Plaintiff claims for the following reliefs,
    
    1. Judgment in the sum of FJ$ 1050787.41
       
    2. Interest accruing daily on the Judgment sum as follows,
       1. For C-401981 under the Supply Agreement - $ 143.84
       2. For C-401003 under the Operating Agreement - $ 73.91
       3. For C-401113 under the Operating Agreement - $ 0.05

Until payment in full satisfaction of the said sum;

100. Costs on an indemnity basis
     

4. Such further and other relief that this Honourable Court may deem fit.
   

12. The Defendants have filed their Statement of Defence to the Amended Statement of Claim on the 20/12/2023. As per the Statement of Defence, the Defendants have taken up a complete bear denial of the Statement of Claim except in claiming that the agreements referred to by the Plaintiff were entered into with ‘Jims Service Station’, which is a company no longer in existence as the said company was wound up by way of a Court Order dated 22/04/2020 pursuant to Sec. 513 (c) of the Companies Act.
    
13. As per facts averred in the Supporting Affidavit of Jone Waqasokolala, as sworn on 02/02/2024, a complete history can be found of the business dealings between the Plaintiff and the ‘Jims Service Station Pvt Ltd’, in which the Defendants were, in fact, the company Directors. Copies of the relevant agreements {Supply Agreement dated 23 August 2014 (JW1), Operating Agreement dated 1 December 2016 (JW2) and the Credit Application (JW3)} have been annexed to the Supporting Affidavit. Further, copies of three Statement of Accounts, reflecting the total debt accrued by the Jims Service Station Pvt Ltd as at 19/12/2018 have also been annexed with the Supporting Affidavit.
    
14. I do not wish to reproduce all facts in toto as per the above documents and the Supporting Affidavit in this ruling. It is, however, pertinent to note that the Credit Application (JW3) is the most crucial document in this case. It is to be noted that this is an application that is independently being made by and on behalf of the Jims Service Station Pvt Ltd as the applicant company and signed by its director whilst being witnessed by the company secretary for the applicant company. ‘The Personal/Directors Guarantee’ is part and parcel of this Credit Application and it is being dully filled and signed by both the first and second Defendants in their personal capacity as Directors of the applicant company.
    
15. Moreover, two copies of acknowledgment of debt by the first Defendant, emails by the first Defendant in negotiating and voluntarily accepting liability for payment of the debt with the Plaintiff, the copies of the winding up proceedings against Jims Service Station Pvt Ltd (along with the copy of the Judgment and Order), copy of the proof of debt lodged with the Official Receiver, copies of Demand Notices as acknowledged by both the Defendants and copies of the summary of interest breakdown are all annexed with the Supporting Affidavit.
    
16. Having carefully considered the Supporting Affidavit and the documents annexed therein, suffice to say that this Court finds that the Plaintiff’s cause of action against both the Defendants have been duly supported to the satisfaction of the Court and that the Plaintiff has successfully established a prima facie case against both the Defendants in respect of the full claim and/or reliefs prayed therein by the Plaintiff.
    
17. In the Affidavit in Opposition, as sworn by the first Defendant on 08/03/2024, it is claimed that the Defendants have a valid defence against the claim of the Plaintiff and have already instructed their solicitors to file an Amended Statement of Defence. The crux of the defence against the claim as relied upon by the Defendants is Non-Est Factum and Unconscionable bargain.
    
18. It is claimed in the Affidavit in Opposition that the personal guarantee has been signed involuntarily as the Defendants were told by the Plaintiff of signing a Credit Application and that they were not aware of giving a personal guarantee. In any event it is submitted that it was mandatory for the Defendants to sign the Credit Application in view of the Supply Agreement and the Operating Agreement and as such it was involuntary and that claiming high interest as per the same is unconscionable under all circumstances. It is also submitted that the claiming of 15% interest was not stated in the Credit Application and that this rate was never agreed by the Defendants.
    
19. Further to the above, the Defendants have submitted as per the Affidavit in opposition that the Defendants guarantee was only to the credit limit of $ 250000.00 and that the debt has exceeded this amount which is not covered by the personal guarantee. Furthermore, it is submitted that the Defendants are not liable for the daily accruing interests as it is not covered in the Credit Application and that the accrual of interest should have stopped at the expiry of the Agreements. Defendants also claim that the Plaintiff had failed to take steps to recover the debt through the ‘Receiver’ for the Jims Service Station and has only pursued against the Defendants as guarantors.
20. In its Affidavit in Reply as sworn by Jone Waqasokolala, Manager Credit and Customer Care for the Plaintiffs company, on 15/03/2024, it is submitted that the Defendants have so far failed to file any application to amend the Statement of Defence. Moreover, it is averred that the Defendants haven’t pleaded in their defence Non-Est Factum and Unconscionable bargain and further that the Defendants have failed to show how and by whom they were deceived into involuntary signing of the Credit Application and the personal guarantee. Plaintiff further denies any allegations of deception by the Plaintiff and claims that the Defendants were fully aware of the Credit Application and the Personal/Directors Guarantee therein.
    
21. It is further submitted by the Plaintiff, in the Affidavit in Reply, that the Defendants are well known and prominent businessman in Labasa and that they have invested in major business ventures in Fiji apart from the Jims Service Station. Newspaper clippings relevant to such business ventures have been annexed with the Affidavit in Reply. It is submitted that the Defendants were aware of the requirement of security for an approval of a credit limit for the benefit of their business.
    
22. It is furthermore submitted in the Affidavit in Reply that the first Defendant has had similar credit agreements with Home Finance Company Limited and has provided similar securities previously. A copy of email communications and account statements in this regard as obtained by the Plaintiff with prior approval of the first Defendant has also been annexed to the Affidavit. Further, a letter dated 23/05/2018 by the first Defendant admitting to the debt owed to the Plaintiff and making a proposal for payment is also annexed with the Affidavit.
    
23. It is also submitted in the Affidavit in Reply that the Defendants had agreed to the credit limit on quantities of petroleum products as per the Credit Application and that some of the payments by the Defendants by cheque were dishonored and has thus contributed to the exceeding of the credit limit. It is also submitted that the Defendant is misconceived regarding the accrued interest and that the interest is payable till the full payment of the debt.
    
24. I shall now consider the relevant legal provisions and the case authorities as relevant to this application. The summary judgment is an expeditious procedure used in civil litigation, to promptly and expeditiously dispose any case without a trial proper. An applicant is entitled for a summary judgment as a matter of law if there is no defence and no dispute as to the material facts of the case. The purpose of summary judgment is to obtain quick judgment where there is plainly no defence to the claim to avoid unnecessary trial incurring the cost and expenses and exhausting the resources of the court which is not infinite.
    
25. Order 14 of the High Court Rules provides for entering summary judgment against the Defendant and the Plaintiff as well on counterclaims. The rules 1 to 4 are relevant to the summons before me and those rules provide for the actions for which the rule on summary judgment applies; the manner in which the application must be made; how the judgment for the plaintiff to be entered and how the defendant be allowed to defend his case. Those rules are as follows:
    

Application by plaintiff for summary judgment (O.14, r.1)

1. (1) Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has given notice of intention to defend the action, the plaintiff may, on the ground that the defendant has no defence to such a claim or part except as to the amount of any damages claimed, apply to the Court for judgment against that defendant.

(2) Subject to paragraph (3), this rule applies to every action begun by writ other than –

(a) an action which includes a claim by the plaintiff for libel, slander, malicious prosecution or false imprisonment.

(b) an action which includes a claim by the plaintiff based on an allegation of fraud.

(3) This Order shall not apply to an action to which Order 86 applies.

Manner in which Application under Rule 1 Must be made (O.14, r2)

2. (1) An application under rule 1 must be made by summons supported by an affidavit verifying the facts on which the claim, or the part of a claim to which the application relates is based and stating that in the deponent’s belief there is no defence to that claim or part, as the cause may be, or no defence except as to the amount of any damages claimed.

(2) Unless the Court otherwise directs, an affidavit for the purposes of this rule may contain statements of information or belief with the sources and grounds thereof.

(3) The summons, a copy of the affidavit in support and of any exhibits referred to therein must be served on the defendant not less than 10 clear days before the return day.

Judgment for Plaintiff (O.14, r.3)

3. (1) Unless on the hearing of an application under rule 1, either the Court dismisses the application or the defendant satisfies the Court with respect to the claim, or the part of a claim, to which the application relates that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of the claim or part as may be just having regard to the nature of the remedy or relief claimed.

(2) The Court may by order, and subject to such conditions if any, as may be just, stay execution of any judgment given against a defendant under this rule until after the trial of any counterclaim made or raised by the defendant in the action.

Leave to Defend (O.14, r.4)

4.-(1) A defendant may show cause against an application under rule 1 by affidavit or otherwise to the satisfaction of the Court.

(2) Rule 2 (2) applies for the purposes of this rule as it applies for the purposes of that rule.

(3) The Court may give a defendant against whom such an application is made leave to defend the action with respect to the claim, or the part of a claim, to which the application relates either unconditionally or on such terms as to giving security or time or mode of trial or otherwise as it thinks fit.

(4) On the hearing of such an application the Court may order a defendant showing cause or, where that defendant is a body corporate, any director, manager, secretary or other similar officer thereof, or any person purporting to act in any such capacity-

(a) to produce any document;

(b) if it appears to the Court that there are special circumstances which make it desirable that he should do so, to attend and be examined on oath.

26. There are many local and foreign cases that discuss the application of these Rules. Master Azhar in the case of Anita Subamma v ARK Company Limited & Others; HBC 173/15: Ruling (24.06.2022) has succinctly elaborated on the principles governing the applications for Summary Judgment.
    

“The court’s duty, when an application for summary judgment is filed, is to ascertain whether there is a triable issue and no arguable defence to the claim. If there is an arguable issue to be tried and there are matters of facts to be resolved, which can only be resolved in a trial, the court should not allow the application for summary judgment but should grant leave to defend the matter in a full and proper trail, no matter how strong the plaintiff’s case would be. The law and procedure for summary judgment can be summarized as follows, based on the decisions under Order 14:

1. The plaintiff may, after the notice of intention to defend the action has been filed, apply for summary judgment against the defendant on the ground that the defendant has no defence to the claim or part of the claim included in the Writ except the amount of damages: rule 1 (3). This application must be by way of summons supported by an affidavit with the assertion of facts and the belief of the deponent that there is no defence to the claim. This summons to be served on the other party to be heard inter parte: rule 2.
   
2. The procedure under Order 14 rule 1 is applicable to every action begun by a Writ. However, it cannot be invoked for an action which includes a claim by the plaintiff for libel, slander, malicious prosecution or false imprisonment and for an action which includes a claim by the plaintiff based on an allegation of fraud: rule 1 (2). Likewise, this Order is neither applicable to summary judgment in specific performance under Order 86 nor does affect the provisions of Order 77 which applies for the proceedings against the state: rules 1 (3) and 12.
   

100. The power to grant summary judgment should be exercised with care and should not be exercised unless it is clear there are no real issues to be tried: Fancourt v Mercantile Credits Ltd (1983) HCA 25; (1983) 154 CLR 87 at 99; Theseus Exploration NL V Foyster [1972] HCA 41; (1972) 126 CLR 507. It would be difficult to obtain summary judgment when there is an array of defences. However, an application for summary judgment should not be refused for raising seemingly difficult issues to blot out otherwise simple cases: Hibiscus Shoppingtown Pty Ltd v Woolworths [1993] FLR 106; Territory Loans Management v Turner [1992] NTSC 82; (1992) 110 FLR 341.
     

4. The legal burden of proof is borne by the plaintiff throughout the application, however, when he has established a prima facie right to an order, a “persuasive” or “evidential” burden shifts to the defendant to satisfy the court that judgment should not be given against him: Australian & New Zealand Banking Group v David (1991)105 FLR 403. Although the onus is upon the plaintiff there is upon the defendant a need to provide some evidential foundation for the defenses which are raised. If not, the plaintiff’s verification stands unchallenged and ought to be accepted unless it is patently wrong: Australian Guarantee Corporation (NZ) Ltd v McBeth [1992] NZLR 54.
   
5. The defendant may show cause against a plaintiff’s claim on the merits. It is generally incumbent on a defendant resisting summary judgment, to file an affidavit which deals specifically with the plaintiff’s claim and states clearly and precisely what the defence is and what facts are relied on to support it: 1991 The Supreme Practice Vol 1 pages 146,147,152 and 322. Mere raising of a defence that is complicated or difficult will not of itself result in a refusal to grant summary judgment: Civil & CIVIC Pty Ltd v Pioneer Concrete (NT) Pty Ltd [1991] NTSC 3; (1991) 103 FLR 196.
   
6. If a point of law is raised which the Court feels able to consider without reference to contested facts simply on the submissions of the parties, then it will see whether there is any substance in the proposed defence. If it concludes that, although arguable, the point is bad, then it will give judgment for the plaintiffs: Sethia Liners Ltd v State Trading Corporation of India (1986) 1 Lloyds Rep. 31.
   
7. There has to be a balancing between the right of the defendant to have his day in Court and to have his proper defenses explored and examined in details and the appropriate robust and realistic approach called for by the particular facts of the case: Bibly Dimock Corporation Ltd v Patel [1987] NZCA 193; (1987) 1 PR NZ 84; Cegami Investments Ltd v AMP Financial Corporation (NZ) Ltd (11990) 2 NZLR 308; Australian Guarantee Corporation (NZ) Ltd v McBeth [1992] NZLR 54.”
   

27. The Plaintiffs claim in this case is premised on the debt owed by the Jims Service Station Pvt Ltd for purchase of petroleum products from the Plaintiff. The quantum of the debt has already been dealt with in the winding up proceedings brought against the Jims Service Station Pvt Ltd. That matter has already been dealt with by a Court of law with competent jurisdiction. As such, I do not find that the Defendants have any valid defence or any triable issue in disputing the amount of debt in these proceedings. Any issues regarding the quantum of debt inclusive of it being in excess of the ‘credit limit’ are questions that should have been brought to the attention of the Court during the winding up proceedings regarding ‘Jims Service Station Pvt Ltd’. That matter has now been clearly dealt with and the Plaintiff had even filed ‘proof debt’ before the Official Receiver. I therefore find that it is not open for the Defendants in this matter to revisit the quantum of debt as a defence to the Plaintiffs claim.
    
28. In my considered view, what is pertinent in this matter is to consider whether the Defendants have a valid defence and/or any triable issue regarding their liability to pay the full debt owed by ‘Jims Service Station Pvt Ltd’, in the personal capacity of the Defendants, under the Directors/Personal Guarantee provided by them pursuant to the Credit Application (JW3).
    
29. Defendants claim (pursuant to the Affidavit in Opposition) that they rely on a defence of Non-Est Factum and Unconscionable bargain. Although it is submitted on behalf of the Plaintiff that since the Defendants have failed to plead this defence in the Statement of Defence, such defence should not be considered at this stage, I find it is open for the Court to consider the same despite that such defence being not pleaded in the Statement of Defence. Pursuant to Order 14 of the High Court Rules, an application for Summary Judgment can be made even if there is no Statement of Defence being filed and a Defendant is required only to show cause on affidavit ‘that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim or part’. I therefore find that it is open for the Defendants to relate to the above defenses even if that is not being pleaded in the Statement of Defence at this stage of the matter.
    
30. However, only a reference to a defence of Non-Est Factum and Unconscionable bargain in the Affidavit in Opposition shall not simply establish that the Defendants in this case have satisfied the Court ‘that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial in this matter’. As mentioned before, this Court has already found that the Plaintiff has successfully established a prima facie case on its claim. As such, the onus is now on the Defendants to show cause and/or satisfy the Court with respect to the claim ‘that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim or part’.
    
31. A defence of Non-Est Factum (which carries the literal meaning ‘it is not the deed’) is extended to a person who can establish that he/she signed a contract without being aware of its nature and clearly believing the document that was signed to be something else other than of its real meaning and as such he/she is not bound by it as “the mind of the signer did not accompany the signature” (Foster v Mackinnon (1869) L. R. [1869] UKLawRpCP 62; 4 C. P. 704 at 711).
    
32. This doctrine has quite limited application. In ‘The Law of Contract by Edwin Peel’, [Twelfth Edition-Sweet & Maxwel (2007) at pgs. 358/359] the scope of the doctrine has been illustrated as follows,

“In Gallie v Lee [1971] A.C. 1004; Lord Reid said that the doctrine may apply to

“those who are permanently or temporarily unable through no fault of their own to have without explanation any real understanding of the purport of a particular document, whether that be from defective education, illness or innate incapacity”

and to these must be added persons who have been tricked into signing the document. The doctrine may thus apply not only to the blind or illiterate but also to persons who are senile, of very low intelligence or ignorant of the language in which the document is expressed. But it will not normally protect literate persons of full capacity.

In their desire to restrict the scope of the doctrine, the courts have insisted that the plea of non est factum is available only where the mistake of the signer was a serious one. Formerly, they gave effect to this policy by drawing a distinction between the “character” of a document and its “contents”. But in Gallie v Lee the House of Lords rejected this distinction as unworkable, and put in its place the requirement that the difference between the document as it was and believed to be must be radical or substantial or fundamental.”

Later at paragraph 8-082 (pgs. 359/360),

“The plea of non est factum is not normally open to a person who is merely ignorant of (as opposed to mistaken about) what he is signing (Norwich and Peterborough BS v Steeds (No.2) [1993] 2 F.L.R. 97), e.g. to one who signs a document in the belief that it is “only a form” without having any precise idea as to its nature (Hunter v Walters (1871) L.R. 7 Ch.App.75). Similarly, in Gilman v Gilman (1946) 174 L.T. 272 a wife, shortly before her husband left her, signed a document which was in fact a separation deed. She did not know this when she signed it, but neither had she any definite idea as to what that she was signing. It was held that she was bound by the deed.”

Later at paragraph 8-084 (pg. 360),

“Carelessness of the signer excludes the doctrine of non est factum. This was a second ground for the decision in Gallie v Lee; the widow could not rely on the doctrine as she had been careless in signing the document without reading it.

...In this context, the standard of care cannot be that of the reasonable person, for such a person will not normally be able to rely on the doctrine of non est factum at all....It does not follow that failure to read the document will exclude the plea of non est factum in all cases; the plea might, for example, still be available if reading the document would not have revealed its true character to a person of the signer’s limited capabilities.”

33. Further, in the Australian case of Petelin v Cullen [1975] HCA 24; (1975) 132 CLR 355 (17 July 1975) the High Court of Australia held,
    

“11. The principle which underlies the extension of the plea to cases in which a defendant has actually signed the instrument on which he is sued has not proved easy of precise formulation. The problem is that the principle must accommodate two policy considerations which pull in opposite directions: first, the injustice of holding a person to a bargain to which he has not brought a consenting mind; and, secondly, the necessity of holding a person who signs a document to that document, more particularly so as to protect innocent persons who rely on that signature when there is no reason to doubt its validity. The importance which the law assigns to the act of signing and to the protection of innocent persons who rely upon a signature is readily discerned in the statement that the plea is one "which must necessarily be kept within narrow limits" (Muskham Finance Ltd. v. Howard (1963) 1 QB 904, at p 912 ) and in the qualifications attaching to the defence which are designed to achieve this objective. (at p359)

12. The class of persons who can avail themselves of the defence is limited. It is available to those who are unable to read owing to blindness or illiteracy and who must rely on others for advice as to what they are signing; it is also available to those who through no fault of their own are unable to have any understanding of the purport of a particular document. To make out the defence a defendant must show that he signed the document in the belief that it was radically different from what it was in fact and that, at least as against innocent persons, his failure to read and understand it was not due to carelessness on his part. Finally, it is accepted that there is a heavy onus on a defendant who seeks to establish the defence. All this is made clear by the recent decision of the House of Lords in Saunders v. Anglia Building Society (Gallie v. Lee) [1970] UKHL 5; (1971) AC 1004, esp at p 1019...

14. It is now settled beyond any shadow of doubt that when we speak of negligence or carelessness in connection with non est factum we are not referring to the tort of negligence but to a mere failure to take reasonable precautions in ascertaining the character of a document before signing it. The insistence that such precautions should be taken as a condition of making out the defence is of fundamental importance when the defence is asserted against an innocent person, whether a third party to the transaction or not, who relies on the document and the signature which it bears and who is unaware of the circumstances in which it came to be executed. It is otherwise when the defence is asserted against the other party to the transaction who is aware of the circumstances in which it came to be executed and who knows (because the document was signed on his representation) or has reason to suspect that it was executed under some misapprehension as to its character. In such a case the law must give effect to the policy which requires that a person should not be held to a bargain to which he has not brought a consenting mind for there is no conflicting or countervailing consideration to be accommodated - no innocent person has placed reliance on the signature without reason to doubt its validity”.

34. Having considered at length the Affidavit in Opposition for the Defendants and as well the Statement of Defence, I do not find that the Defendants have submitted any facts that may support a defence of Non est Factum regarding the Defendants signing of the Credit Application and the Personal/Directors Guarantee as per annexture ‘JW 3’. The Defendants’ claim, that they simply believed that they were signing only a ‘Credit Application’ and that they were not aware of the ‘Personal/Directors Guarantee’ has later been self-contradicted when the Defendants go on to claim that it was mandatory to sign the said ‘credit application’, in view of the other two agreements signed with the Plaintiff, in order to effectively carry on with their business of petroleum products.
    
35. The claim by the Defendants (as per the Affidavit in Opposition) that the signing of the Credit Application was mandatory in view of the business dealings with the Plaintiff and that their signing of the ‘Personal/Directors Guarantee’ was involuntary, further contradicts the accepted principles of the doctrine of Non est Factum, as discussed in the foregoing paragraphs of this ruling. This distinctly shows that the Defendants, in fact, fully understood and were aware of the true nature of the “Credit Application’ and its full contents when they signed the same. Thus, the defence of Non est Factum shall have no application to the Defendants in this case. In the Court’s considered view, the reference by the Defendants to the defence of Non est Factum is a mere attempt to avoid liability and in fact is an apparent sham.
    
36. Furthermore, having due regard to the status of the Defendants as seasoned businessman in Fiji (as elaborated in the annextures provided with the Affidavit in Reply) and the fact that the Defendants in more than one occasion acknowledged the debt owed to the Plaintiff by the ‘Jims Service Station Pvt Ltd’ and had by themselves proposed payment plans to settle this debt, clearly shows that they are well versed in their business dealings with the Plaintiff, educated and informed in decision making and thus, by no means fall within the category of persons the defence of Non est Factum would be extended to. I therefore find that the Defendants have obviously failed to satisfy this Court that they have a valid defence and or a triable issue under Non est Factum with regard to the claim of the Plaintiff.
    
37. Next to consider is the claim of a defence under ‘Unconscionable bargain’. This is a defence against the enforcement of a contract or portion of a contract when the contract is unfair or oppressive to one party in a way that suggests abuses during its formation, thus, a court may find it unconscionable and refuse to enforce it. There can be two types of unconscionability in contracts, procedural and substantive. Procedural unconscionability may exist when during the contract’s formation, at least one party does not have fair/meaningful choice, there’s misrepresentation, or unequal bargaining power among other factors. Substantive unconscionability is when the contract’s terms unfairly benefit/harm one side such as extremely unequal price compared to value exchanged.
    
38. The Defendants ground on claiming ‘Unconscionable bargain’ as outlined in the Affidavit in Opposition is the fact of allegedly ‘high interest rate’ claimed by the Plaintiff. This ground, firstly, has no substance, as the Defendants fails to submit any facts as to why the interest rates as agreed by them in writing as per the signed agreements between the parties are now claimed to be ‘high’. Further, the Defendants fail to submit any facts to suggests that they had no fair/meaningful choice, there’s misrepresentation, or unequal bargaining power among other factors whilst coming into the agreements with the Plaintiff. It should be noted that in Fiji, the Plaintiff is not a monopoly dealing in Petroleum products. There are more than one company that deals in petroleum products in the Fijian market. The Defendants manifestly fail to provide any facts as to why they claim ‘Unconscionable bargain’ in the circumstances of this case.
    
39. In the American case of Jones v. Star Credit Corp., 298 N.Y.S.2d 264, 59 Misc.2d 189 (Sup. Ct. Nassau Cty. 1969) it was held,
    

“The dangers of inequality of bargaining power were vaguely recognized in the early English common law when Lord HARDWICKE wrote of a fraud, which “may be apparent from the intrinsic nature and subject of the bargain itself; such as no man in his senses and not under delusion would make". The English authorities on this subject were discussed in Hume v. United States ( [1889] USSC 235; 132 U.S. 406, 411) where the United States Supreme Court characterized (p. 413) these as "cases in which one party took advantage of the other's ignorance of arithmetic to impose upon him, and the fraud was apparent from the face of the contracts."

40. In the current case before me, the Defendants have failed to submit any facts to suggests that they were, in fact, at an inequality of bargaining power with the Plaintiff at any point of time when the ‘Credit Agreement’ and /or the other two ‘Agreements’ were duly signed and created between the parties. Theres no facts before this Court which suggests that the interest rates as agreed by the Defendants in the above ‘Agreements’ and the ‘Credit Application’ were in fact high and thus unconscionable in respect of business transactions in Fiji. Thus, secondly, this claim by the Defendants on ‘Unconscionable bargain’ as a defence as against the claim of the Plaintiff has no basis as per the facts submitted by the Defendants in their Affidavit in Opposition.
    
41. In view of the above findings, this Court has no doubt in holding that there is no factual support for the Defendants’ claim on a defence of ‘Unconscionable bargain’ in the current case. In my considered view, this is yet again another sham attempt by the Defendants to avoid liability for payment of the debt as claimed in the Plaintiff’s Statement of Claim without any merit. This Court therefore finds that the defence of ‘Unconscionable bargain’ have no application to the Defendants in this case and that the Defendants have plainly failed to satisfy the Court ‘that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim or part’ in view of a defence of ‘Unconscionable bargain’.
    
42. Furthermore, the claim that there was no 15% per annum interest rate that was ever agreed upon by the Defendants is factually incorrect as it is clearly stated at clause 5.4 of the ‘Supply Agreement’ (JW-1) as signed by both the Defendants on 23/08/2014. This fact was admitted to by the counsel for the Defendants during the Hearing. Moreover, the claim that the accumulation of interest should have ceased after the expiry of the agreements is a clear misconception promoted by the Defendants as the terms in all agreements signed between the parties clearly outline that the interest shall accrue until the total payment of the debt is cleared. Pursuant to the terms in the Credit Application, inclusive of the Personal/Directors Guarantee therein, as signed by the Defendants, the Defendants are jointly and severally liable to the ‘due performance of the terms and conditions’ therein and to pay to the Plaintiff ‘any monies advanced by way of credit’. As such, the allegation that the Plaintiff ha failed to pursue the recovery of the debt before the ‘Receiver’ and is only pursuing it against the Defendants has no relevance as a defence or an issue for trial in this matter.
    
43. In view of the above discussions and findings of the Court, having carefully considered all facts as advanced in favour of the Defendants as a whole, I hold that the Defendants have apparently failed to satisfy the Court ‘that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim or part’ as against the Plaintiffs’ claim.
    
44. I have already found in the foregoing paragraphs of this ruling that the Plaintiff has successfully established a prima facie case against both the Defendants in respect of the full claim and/or reliefs as prayed for by the Plaintiff.
45. Thus, it is the conclusion of this Court that there are no grounds to show cause that the Defendants, in fact, have any defence to the claim of the Plaintiff and that there are no facts before this Court that would have negated the application of Order 14 Rule 1 and 3 of the High Court Rules in this matter.
    
46. The Court accordingly concludes that the Plaintiff in this case is entitled to enter a Summary Judgment against the Defendants for the full claim of the Plaintiff pursuant to Order 14 Rule 1 of the High Court Rules.
    
47. In consequence, the Court makes the following final orders:
    
    1. The summons for Summary Judgment is hereby granted, subject to the following orders,
       
       1. Judgment entered in favour of the Plaintiff in the sum of FJ$ 1050787.41
          
       2. Interest payable and accruing daily on the Judgment sum as follows,
          1. For C-401981 under the Supply Agreement - $ 143.84
          2. For C-401003 under the Operating Agreement - $ 73.91
          3. For C-401113 under the Operating Agreement - $ 0.05

Until payment in full satisfaction of the said sum;

2. Defendants shall pay a cost of $ 8000.00, as summarily assessed by the Court, to the Plaintiff as costs of this matter.
   

L. K. Wickramasekara,
Acting Master of the High Court.

At Labasa,
25/09/2024