Singh v Deoji & Sons Ltd [2001] FJLawRp 38; [2001] 1 FLR 188 (14 May 2001)

GURDEV SINGH, MALKIT SINGH & BACHITRA SINGH v DEOJI & SONS LIMITED

High Court Civil Jurisdiction

14 May, 2001

HBC0157/99L

Summary judgment – opposed application – cross-claim - principles relevant to summary judgment – material facts not in dispute - Defendant has not discharged onus of proving a triable issue – High Court Rules O.14 rr.3 & 4

The Plaintiffs sought summary judgment for the balance of 2 years rent on premises vacated early by the Defendant. The Defendant filed a defence and cross-claim, that it sought service, repair of water leakage, and a formal notice to vacate, but the Plaintiff denied receiving any formal notice. The Defendant failed to annex relevant documents in its affidavit and submitted that the issue before the Court was a proper interpretation of the agreement and that during discovery the Defendant would adduce documents concerning negotiations. The Court found that the Defendant failed to set up a good defence or raise isues which ought to be tried.

Held – Where the material facts are not in dispute, the Defendant has failed to annex relevant documents in its affidavit to support its allegations and set up a good defence, and has not discharged the onus placed on it to satisfy the Court that there is some issue or question in dispute which ought to be tried, summary judgment will be awarded.

[Note: the Court of Appeal twice refused leave to appeal from this Ruling. On 20 September 2006 the Court found that the effect of the summary judgment was to strike out the Defendant's defence and cross-claim, thus the cross-claim could not proceed.]

Cases referred in Ruling

Banque de Paris et des Pays-Bas (Suisse) S.A. v Costa de Narray [1984] 1 Lloyd's Rep. 21
Dougles Trading Co. Ltd v Westend Services Ltd C.A. 94/86. N.Z. Court of Appeal 12/12/86
Fau Count v Merchantile Credits Ltd (1983) HCA 25; (1983) 154 CLR 87
General Steel Industries Inc v Commissioner for Railway (SW) [1964] HCA 69; (1964) 112 CLR 125
Maganlal Brothers Ltd v L.B. Narayan [1984] ABU 31/84 15 November 1984
Sensons Ice Cream Co. (NZ 1987) Ltd v John Hamilton Milner NZ Court of Appeal. CA 273/89
Standard Chartered Bank v Yacob 1990, C.A. Transcript No. 699
Suruj Lal v Chin Sami [1995] HBC 495/93S 1 June 1995
Wallingford v Mutual Society (1880) 5 App. Cas. 685

Ronald Gordon for the Plaintiffs
Vijay Naidu for the Defendant

14 May, 2001

RULING

Prakash, J

This is an application by the Plaintiffs for summary judgment against the Defendant in terms of its claims against the Defendant. The Application is made pursuant to Order 14 of the High Court Rules 1988. Both parties filed affidavits in support and opposition to the Summons. By consent of the parties written submissions were ordered on 16/08/00. These were filed after considerable delays in December 2000.

The procedure for summary judgment is well established by the authorities. The principles applicable are succinctly summarised by the Court of Appeal in Maganlal Brothers Ltd v L.B. Narayan Civil App. No. 31 of 1984 at p.5:

"The matters for consideration by the Judge on the determination of this matter are contained in Rules 3 and 4 of Order 14, the tenor and effect of which are conveniently summarised in Halsbury's Laws of England (4th Edn) Volume 37 paras. 413-415, the relevant portions of which read:

"413. Where the Plaintiff's application for summary judgment under Order 14 is presented in proper form and order, the burden shifts to the Defendant and it is for him to satisfy the court that there is some issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial. Unless the Defendant does so, the court may give such judgment for the Plaintiff against the Defendant as may be just...

The Defendant may show cause by affidavit or otherwise to the satisfaction of the court. He must 'condescend upon particulars', and, in all cases, sufficient facts and particulars must be given to show that there is a genuine defence."

And in a note (Note 4) to the paragraph it is stated that:

"The normal everyday practice is for the Defendant, to show cause by affidavit, and except in a clear case, it is rare for the court to allow a Defendant to show cause otherwise than by affidavit. A defence already served may be a sufficient mode of showing cause, but not if it is a sham defence served early to avoid showing cause, by affidavit: see McLardy v Slateum [1890] UKLawRpKQB 34; (1890) 24 QBD 504."

The White Book Vol. 37 para 413 also states that an order for summary judgment may be granted if the Plaintiffs' claim is duly proved by affidavit evidence and "the Defendant is unable to set up a good defence or raise issues which ought to be tried. Where no fairly arguable point is raised by way of defence it is the Court's duty to give judgment for the Plaintiff, for the Defendant is bound to show some reasonable grounds of defence". The Court also has to be mindful that genuine claims by either party is not frustrated by the summary judgment procedure. As Casey J stated in Dougles Trading Co. Ltd v Westend Services Ltd C.A. 94/86. N.Z. Court of Appeal (12/12/86 unreported):

"While the desirability of eliminating the frustration and delays which can be caused by unmeritorious or tendentious defence needs no emphasis, it is important to pay proper regard to the Defendant's interest and to be wary of allowing the rule to become an instrument of oppression or injustice in the laudable interest of expeditory litigation. It is true that "justice delayed is justice denied", but not at the expense of a fair hearing for both parties, unless the Court is sure there is no real defence."

(Quoted in Sensons Ice Cream Co. (NZ 1987) Ltd v John Hamilton Milner NZ Court of Appeal. CA 273/89 unreported by p.5).

Cases cited and observations of Pathik J. in Surj Lal f/n Ram v Chin Sami, Suva High Court CA495/93 are also relevant. Australian cases, cited by the Defense Counsel also express similar sentiments. The power to order summary judgment must be exercised with "exceptional caution" (General Steel Industries Inc v Commissioner for Railway (SW) [1964] HCA 69; (1964) 112 CLR 125) and "should never be exercised unless it is clear that there is no real question to be tried" (Fau Count v Merchantile Credits Ltd (1983) HCA 25; (1983) 154 CLR 87).

It is clear from the submissions that the material facts are not in dispute. The case concerns a tenancy agreement between the parties. The agreement was for a tenancy for 6 years from 1 December 1994. However, the Defendant vacated the said premises in or about December 1998, almost 2 years before the expiry of the agreement. In its submissions in reply to the Plaintiffs' submissions Defence Counsel admits that the material facts are not in dispute. However, it submits that "what is involved in the present case is a question of interpretation of the agreement entered into between the parties". It then lists some "other material facts which are relevant ...". Further on in its submissions in reply it suggests that "... the process of discovery will allow the Defendant to adduce documents to be relied on as evidence concerning the negotiations...and that certain terms be implied into the Agreement". The Court is not clear what is the purpose of such submissions. It is clear from the Defence filed and the cross-claim that the critical documents for the Defendant are within its possession. These have not been annexed to its affidavits. In its Defense the Defendant states, inter alia, that:

(a) it gave formal notice to vacate the premises on or about 2 November 1998 (para 2 Statement of Defense)

(b) by letter dated September 1997 the Defendant informed the Plaintiff that the premises was not in a good and tenable condition due to excessive water leakage and thereby, the Defendant gave notice that it would vacate the premises if the Plaintiffs failed to remedy the defects (para 4).

The Plaintiffs deny receiving any formal notice to vacate. In its cross claim the Defendant lists letters in the Particulars to para 7 requesting service, repair or remedy of the situation re: the water leakage. The various letters noted in the particulars may be relevant to a denial of the Defendant's breach. However, none of the letters are annexed in the Defendant's affidavit.

The Supreme Court Practice.1997 (White Book) is clear as to the requirements of the Defendant's affidavit at para 14/3 - 4/4 it states:

"Defendants affidavit - The Defendant's affidavit must "condescend upon particulars," and should, as far as possible, deal specifically with the Plaintiff's claim and affidavit, and state clearly and concisely what the defence is, and what facts are relied upon to support it. It should also state whether the defence goes to the whole or part of the claim, and in the latter case it should specify the part.

A mere general denial that the Defendant is indebted will not suffice (Wallingford v Mutual Society (1880) 5 App. Cas. 685, per Lord Blackburn, p.704.

Indeed in all cases, sufficient facts and particulars must be given to show that there is a triable issue (see r.3(l))."

At para 14/3 - 4/8 it is further stated:

"It is trite law that the mere assertion in an affidavit of a given situation does not, ipso facto, provide leave to defend, since the Defendant must satisfy the court that he has a fair or reasonable probability of showing a real bona fide defence, i.e. that his evidence is reasonably capable of belief (per Ackner L.J, in Banque de Paris et des Pays-Bas (Suisse) S.A. v Costa de Narray [1984] 1 Lloyd's Rep. 21, 28). See also per Bingham L.J. in Bhopal v Punjab National Bank [1972] 2 All ER 286, 303; Standard Chartered Bank v Yacob 1990, C.A. Transcript No. 699 per Lloyd LJ."

It is clear from the materials put before the Court that the Defendant has not discharged the onus placed on him to satisfy the Court that there is some issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial. The Plaintiff's application for summary judgment is granted in terms of its summons of 18/05/99 with costs to be taxed if not agreed.

Application granted.

Marie Chan