Prasad v Sundar [1999] FJSC 6; CBV0004U.1998S (10 March 1999)

Fiji Islands - Prasad v Sundar - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

AT SUVA

ON APPEAL FROM THE COURT OF APPEAL, FIJI

CIVIL APPEAL NO. CBV0004 OF 1998S
(Court of Appeal, Fiji, Civil Action No. ABU0022/97S)

BETW/p>:

CHANDRIKA PRASAD
Appellant

AND:

PETER SUJENDRA SUNDAR
CONCAVE INVESTMENTS LIMITED
Respondents

&n/p>

Coram: The Rt. Hon. Lon. Lord Cooke of Thorndon
The Hon. Sir Anthony Mason
The Hon. Sir Gerard Brennan

Hearing: Tuesday, 2 March 1999
Date of Judgment: Wednesday, 10 March 1999

Counsel: Mr. H. K. Nagin for the Appellant
Mr. M. S. Sahu Khan for the Respondents

JUDGMENT OF THE COURT

On 28 November 1996 in the High Court at Suva Scott J. gave judgment in an action tried by him on 30 and 31 July 1996. [The trial have been followed by written submissions from counsel]. The principal relief claimed in the action was a decree for specific performance by the vendor (Mr. Prasad) of an agreement for the sale and purchase of a residential property in Suva. The vendor, who claimed to have rescinded the argument for failure by the purchaser to complete, counter-claimed for certain monetary relief. The first plaintiff in the action is the purchaser, Mr. Sundar, whose daughter is married to Mr Prasad’s son. The second plaintiff, Concave Investments Limited, is a company controlled by Mr Vijay Kumar, who is the first plaintiff’s brother-in-law. The second plaintiff claimed under an assignment in 1993 by the first plaintiff of his alleged rights under the agreement. The case is an acrimonious family dispute.

The judge dismissed both claim and counterclaim, but on appeal by the plaintiffs the Court of Appeal (Kapi, Thompson and Tompkins JJ) on 15 May 1998 set aside the judgment and ordered a retrial before a different judge. They also decided that the plaintiffs should have been given leave to amend the statement of claim, which leave Scott J. had refused both before the trial and at the end of the defendant’s case at the trial. The essential ground of the Court of Appeal’s decision to order a retrial was that Scott J. should not have refused, as he did initially on 29 May 1996, an application that the evidence of the first plaintiff be taken by examination on commission in Australia. At the outset of the trial itself Scott J. in effect confirmed that refusal in refusing leave to appeal from it after hearing further argument. As it was, the only evidence called for the plaintiffs at the trial was from Mr Kumar, whom the judge did not regard as credible witness. The defendant now appeals to this Court from the Court of Appeal decision ordering a retrial. It has not been contended on behalf of the defendant that, on the appeal from the substantive judgment after the trial, the plaintiffs were not entitled to advance the argument that before the trial the judge should have allowed the evidence to be taken on commission. What is contended is that the Court of Appeal should not have disturbed his discretionary decision to refuse to allow this.

A special feature of the case is that according to an affidavit by him the first plaintiff had been convicted in Sydney of uttering forged documents relating to immigration affairs and had been sentenced to imprisonment for four years effective from 11 February 1994. At some stage he was released on licence, to enable him to look after his ill wife, but on condition that he did not leave Sydney; not until February 1998 was he allowed to leave Australia.

It was basically the first plaintiff’s imprisonment, together with the obvious importance of his evidence, that led the Court of Appeal to take the unusual course of interfering with the trial judge’s refusal to allow his evidence to be taken in Australia before trial. Whether evidence will be ordered to be taken in that way is very much a discretionary question. Traditionally it has been rare for a plaintiff to be permitted to have his own evidence so taken. But now that the videotaping of evidence is practicable -- and there was evidently no reason why it should not have been videotaped in this case -- the disadvantage that the trial judge would not have the opportunity of observing the witness under examination and cross-examination can be largely overcome. The Court of Appeal were alive to all the foregoing considerations. In particular they were well aware that a judge’s discretionary decision on such a question should not be disturbed except in a case where this is clearly demanded by justice. Nevertheless they saw the present as just such a case; and despite all that counsel has urged on behalf of the appellant we are satisfied that they were entitled to take that view.

As there is to be a retrial it is undesirable that we should appear to prejudge any of the issues in the case, but, merely to demonstrate the importance of the first plaintiff’s evidence, we mention the following matter. The agreement for sale and purchase was made in writing on an unrecorded date in 1989. It provided for a purchase price of $51,000, of which $1000 was to be paid forthwith (as it was) and the balance was to be paid not later than settlement date, namely 30 April 1992. On 8 June 1989 the same parties entered into a further written agreement drawn up by a solicitor in Punchbowl, New South Wales, which modified, to some extent at least, the sale and purchase agreement. The outstanding purchase price of $50,000 was thereby treated as a loan, and a further loan of $50,000 from the defendant to the first plaintiff was recited. It was then provided that the borrower should pay the lender the sum of $100,000, with interest at ten percent per annum on monthly rests, no later than 13 April 1992. It was also agreed that the borrower should repay the principal in the minimum sum of $1,000 per month commencing from 13 July l989.

At the trial, the judge admitted in evidence for what it might be worth a page of figures in the nature of an account (exhibit 6) about which Mr Kumar gave evidence. Mr Kumar said that the defendant had told him that the defendant’s son had prepared the original of this document and had given it to the first plaintiff. The document purports to show certain payments and calculations, the payments culminating with one of $74,000 shown as having been made on 19 April 1991. A balance of $24,649 is shown as remaining due. In his evidence, however, the defendant denied discussing the property or any accounts with Mr Kumar and said that he first saw the alleged account when a copy of it was annexed to affidavit sworn by Mr Kumar in September 1993. The defendant’s evidence appears to be that the initial $1,000 was the only payment ever received by him from the either plaintiff. As already mentioned, the judge regarded Mr Kumar as an unreliable witness. He dismissed Mr Kumar’s evidence about the alleged account as, in effect, worthless.

That is an example of a major issue which it was unsatisfactory to determine without hearing or having the first plaintiff’s evidence. We repeat that we do not think it right to discuss the issues further in this judgment, although of course we have had regard to the range of them in reaching our conclusion.

The appeal will therefore be dismissed, subject however to the two following variations of the Court of Appeal’s decision.

First, although the defendant did not appeal from the judge’s dismissal of the counterclaim, we think that in fairness any retrial should be a complete one. The defendant will therefore be at liberty to resurrect the counterclaim if he is so minded.

Secondly, the Court of Appeal, considering with justification that there had been a history of procedural shortcomings or unreasonableness on the part of both sides, ordered that each party should bear his own costs of the appeal to that court. The trial judge appears to have made no order as to costs. There is a possibility that after all the evidence has been heard it will be determined by the judge at the retrial that one party or the other has knowingly given false evidence. In that event it might be just to order that party to bear the costs throughout all stages of the case other than the present stage or at least to bear, in addition to the costs of retrial, some part of the previous costs. Having regard to such possibilities, we think it best to order that all costs to date other than the costs of the appeal to this Court be costs in the cause. We should make it clear that we are not suggesting what order as to costs should be made by the trial judge. Our only concern is to leave the trial judge unfettered in that regard. The respondent must pay the costs of this appeal.

Lord Cooke of Thorndon

Sir Anthony Mason

Sir Gerard Brennan

Solicitors:

Messrs. Sherani and Company, Suva for the Appellant
Messrs. Sahu Khan and Sahu Khan, Ba for the Respondents

CBV0004U.98S