Naidu v D Chand Brothers [1992] FijiLawRp 36; [1992] 38 FLR 64 (23 March 1992)

[1992] 38 FLR 64

COURT OF APPEAL OF FIJI

VENKAT SAMI NAIDU

v

D CHAND BROTHERS

Tikaram P, Quilliam, Amet JJ.A.

23 March 1992

Contract - building contract - effect of engineer's certificate - value of unsupported allegation of fraud.

The Respondents obtained summary Judgment under the provisions of RHC O. 14 in respect of moneys certified due by engineer's certificate. On appeal the Court of Appeal HELD: dismissing the appeal, a mere unsupported allegation of fraud could not afford a genuine issue to be tried in answer to a C claim founded on an engineer's certificate.

No cases were cited.

Appeal against summary Judgment entered in the High Court.

Dr. M S Sahu Khan for Appellant
V Maharaf for Respondent

Judgment of the Court:

On 1l February 1985 Respondent contracted to carry out certain work for the Appellant at an agreed price of $53,931. The contract provided for progress payments to be made on the certificate of the Appellant's engineer. Upon this basis a progress payment of $16,023.40 was made.

The Respondent then applied for a further progress payment of $23,959.22 and the engineer's certificate was issued for that payment. The Appellant paid $800 of that sum but has never paid the balance of $15,982.72. That sum, together with retention money of $2,104.35 comprised the Respondent claim against the Appellant of $18,087.07.

The Respondent applied for Summary Judgement for that amount. After a number of adjournments Summary Judgement for the amount claimed was given 20 November 1987.

The Appellant applied for this judgment to be set aside and asked that he be given leave to defend. On 17 March 1989 Jesuratnam J dismissed the application in a written and reasoned judgement.

The grounds of appeal are, in general terms, that the Judge erred in not granting leave to defend when there was a proper and arguable defence. The Appellant had filed a Statement of Defence which incorporated a Counterclaim for an unliquidated sum.

The Court record shows that a question arose as to whether the Appellant had, since filing his appeal, admitted liability for the amount claimed. There is considerable support for the view that the Appellant had admitted liability and was concerned only with obtaining time in which to make payment. Because of the decision to which we have come, however, it is unnecessary for us to pursue that matter any further.

On behalf of the Appellant it was argued that there was evidence before the Court that the Appellant had an arguable defence to the claim, and also a counterclaim, based on fraud on the part of the Respondent and the failure of the Respondent to carry out certain of the works in the contract.