Siwan v Millers Limited [1977] FJSC 172; Action 54 of 1977 (27 May 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
CIVIL JURISDICTION

Action No. 54 of 1977

BETWEEN:

SADA SIWAN s/o Gundu Mani Gounder
Plaintiff

AND:

MILLERS LIMITED
Defendant

Mr. C. Gordon for the Plaintiff
Mr. Ram Krishna for the Applicant/Defendant

COURT:

This application is made by the defendant to strike out the plaintiff's Statement of Claim on the ground that the plaintiff has not shown a cause of action. The Statement of Claim is certainly a curious document. Paragraph 1 avers that the plaintiff purchased of defendant a secondhand caterpillar tractor in November 1972 for $5000, paying a deposit of $1800 and leaving $3200 secured under Bill of Sale. Paragraph 2 alleges that the defendant agreed to insure the machine and although the Statement of Claim is somewhat delphic in this respect, the use of the word 'charged' implies that defendant did in fact insure the tractor and charge the cost of insurance to the plaintiff. Paragraph 3 recites that three weeks after the purchase the tractor was damaged by flood, and the inference to be drawn from what is said is that as a result of being so damaged by flood it was seized by the defendant. However, there is no allegation that is was wrongfully seized. Then the plaintiff alleges that he called upon defendant to repair the tractor - presumably from damage caused by the flood - and eventually the defendant and the insurance company agreed to settle the plaintiff's claim. What the plaintiff claims has not been disclosed, but if it was a claim for reimbursement of damage by flood, which is the most likely conclusion from what has been set out in the Statement of Claim, then it would be a claim against the insurance company and I cannot see how the defendant has come into it. Then the Statement of Claim goes on to say that the defendant then secured judgment against the plaintiff for $4204. 32. I assume, although it is certainly not stated, that this was done instead of repairing the tractor in pursuance of the settlement. So far it is difficult to work out what wrong the plaintiff alleges himself to have suffered. He does not say how that judgment came to be obtained, but reference to the Court file shows that it was entered in default of defence. Plaintiff entered an appearance to the writ but did not file a defence and judgment was entered against him. No application has ever been made to set aside that judgment. Then the last paragraph says that the defendant has failed to account to the plaintiff for what happened to the tractor, and so he claims $5000. I think that in looking at the Statement of Claim I should not take into account what the defence has said, and if I do this, I am left with the plaintiff claiming damages because defendant has apparently still has his machine and has not told the plaintiff what had been done with it. It is quite true that if I then look at the defence I see that the machine was sold for $400 and the amount credited to the plaintiff, but the fact that a machine which cost $5000 in November 1972 should be worth only $400 in September 1974, not quite two years later, would appear to require some explanation. It is true that the plaintiff is unlikely to succeed unless he can show wrongful seizure and deposition, yet at the core of it there might be a cause of action and I should not prevent him from putting his story before the Court. The defendant's application must accordingly fail, and the plaintiff must have his costs of the application $8.40. Nevertheless I think that plaintiff's solicitor might be wise to consider his own position carefully because if it turns out that there is in fact no cause of action he may find himself paying the costs of the action.

(SGD.) K.A. STUART
JUDGE

LAUTOKA,
27th May, 1977.