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Westpac Banking Corporation v Singh [1998] FJHC 173; HBC0009j.95b (16 January 1998)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. 9 OF 1995

Between:

WESTPAC BANKING CORPORATION
Plaintiff

and

PRITAM SINGH
s/o Ujagar Singh
Defendant

-------------------------------------------------------

CIVIL ACTION NO. 17 OF 1993

Between:

WESTPAC BANKING CORPORATION
Plaintiff

and

ANWAR MAHABOOB
s/o Rashul Buksh
Defendant

Mr. A. Kohli for the Plaintiff
Mr. V.P. Ram for the Defendants

JUDGMENT

There are two applications by summons by the Plaintiff (the "Bank") for summary judgment against the respective defendants in the above two actions pursuant to the provisions of Ord 14 of The High Court Rules.

In each case there is claim for recovery of moneys alleged to be due and owing by the respective defendants to the Bank.

The history of the two cases is as follows (as stated by Mr. Ram in his written submission herein):

"1/ The writ of summons was issued and served.

2/ The Acknowledgment of Service notifying an intention to defend was filed.

3/ A Statement of Defence was filed and served.

4/ A Summons for Directions issued

5/ An order for Directions made and sealed

6/ Requests for Pre Trial Conference

7/ Application for dispensation of Pre Trial Conference.

On the hearing of the application to dispense with the P.T.C. in the Action No. 17/93 it was pointed out that the minutes had been signed and lay with the Plaintiff's Solicitors. The hearing of the applications to dispense with the P.T.C in each case was then abandoned and the Plaintiff in both actions has now applied for Summary Judgment under the provisions of Order 14."

In neither case has the defendant filed an affidavit in reply to the application for summary judgment.

The defendants contend that the procedure of applying for summary judgment at the stage the proceedings have reached is inappropriate and that the summons should be struck out.

The plaintiff argues that the procedure is appropriate and the learned counsel for the plaintiff referred the court to two cases (BRINKS LTD v ABU-SALEH AND OTHERS (No 1)(1995) 4 All E R 65 and McLARDY v SLATEUM [1890] UKLawRpKQB 34; (1890) 24 QBD. 504 in support of their arguments.

The defendants on the other hand say through their counsel Mr. Ram that all that the Plaintiff says is that it "verily believes that there is no defence to this action to which this application relates". Mr. Ram says that a defence has been filed and the plaintiff cannot seek an order in the face of that defence. He submits that there are triable issues in both the cases and therefore summary judgment cannot be entered.

The Court had on 22 May 1997 made an order that counsel file written legal submissions. The defendants filed theirs on 6 June 1997 and the plaintiff on 24 October 1997. The files were received by me in Suva from Labasa High Court on 24 November 1997.

Consideration of the issue

Upon a careful consideration of the submissions made by counsel, and upon my reading of the provisions of Ord.14 r1(1) of The High Court Rules I am of the view that these applications are in order even at the stage the proceedings have reached in the two cases. The said Ord.14 r.1 provides, inter alia:

"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 a claim included in the writ, or to a particular part of such a claim, or 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."

In the case before me, the point in effect taken by Mr. Ram is that the applications ought to be refused on what amounts to 'delay' in making the applications particularly because they are made after the Statements of Defence have been filed in each case. In this regard it is pertinent to note the remarks of JACOB J in BRINKS LTD (supra) at p.68:

"What then is the rule as regards delay and Ord. 14? It is said that the Plaintiffs have delayed so much, and the case is so close to trial, that I should regard the application as an abuse of process. Now it is true that normally Plaintiffs used Ord 14 shortly after they commence proceedings, normally, but not always, before a defence is filed. But there is nothing in the rules precluding an application at a later stage in the proceedings. I do not see why delay, of itself, should be a relevant matter. If there is no 'defence to the claim' or the Defendant cannot show 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' then delay can make no difference."

The case of SLATEUM (supra) was referred to in BRINKS (supra). In the former the issue was whether or not an application under Ord.14 could be made after a defence had been served. Except for the following statements of POLLOCK B as obiter, it was held that it could:

"If a plaintiff makes his application after the ordinary time, the onus is on him to show that the delay is justification under the special circumstances of the case"

On the above statement I note the following comment of JACOB J in BRINKS (supra) at p.69:

"He gave no reason for so saying. Whilst this may well have been apposite in the 1890s, when trials were quick and cheaper and I suspect Ord 14 was more restricted in its case, I do not think it appropriate today".

It has been held that in a proper case, a summons for summary judgment under Ord. 14 may be issued after the issue of a summons for directions following the close of pleadings (BATH PESS LTD. v ROSE, THE TIMES, July 13, 1987, C.A.,). In the two cases before me the parties have got to the stage of holding a pre-trial conference.

Having decided that the plaintiffs are entitled to apply as they have done, the question that arises now is whether on the pleadings I ought to grant the applications.

Order 14 r 2 provides for the manner in which application under Rule I must be made, namely, by 'summons' supported by an 'affidavit'. This was done; and under Or 14 r4(1) all that the defendants have to do to obtain leave to defend is they "may show cause against an application under rule I by affidavit or otherwise to the satisfaction of the Court".

Although the defendants have not filed affidavits in reply to show cause, the Court has before it Statement of Defence which has been filed in each case. The Court must look at these defences.

As has been put by Mr. Ram in Action 17/93 the defence shows as follows indicating that they are substantive defences which need to be investigated:

(a) that there is a dispute as to the propriety of the agreements and documents.

(b) the arrangements made by the Bank have been breached by the Bank.

(c) there is a dispute as to the true balance.

(d) a plea of estoppel is raised.

Similarly in Action No. 9/95 the issues raised are as follows (as stated by Mr. Ram) showing that there is an arguable defence:

"(a) The allegation in Paragraph 2 of the Statement of Claim that the Defendant "operated accounts" at the Plaintiff's Labasa Branch is denied and particulars are sought through the defence. If "accounts" were operated then these should have been detailed out in the claim. This is not done.

(b) No agreement to pay interest has been detailed. Was there or was there not interest and if so was there any agreement on the rate of interest? No specific agreement has been pleaded other than a claim for interest which could be unilateral or by agreement.

(c) No particulars of accounts or copies of statements showing the final balance have been attached and the defence is relevant as to how the claim is made up. After all the Plaintiff is saying that an amount is owing and that amount is what it says is owing without showing to the court just how the balance is made up".

On the pleadings I find that there are triable issues and therefore subject to what I say hereafter judgment cannot be entered against the defendants. The following passages from the judgment in POWSZECHNY BANK ZWIAKOWY W POLSCE v PAROS (1932) 2 K.B. 353 are worth noting in this regard:

There at p. 359 GREER L.J. said:

"It has long been the rule that in proceedings under Order XIV, what the Court, whether this Court or the King's Bench Division, has to ascertain is whether there is a triable issue. If there is, no matter how strongly the Court may anticipate that it will be decided in the plaintiff's favour, it must order a trial."

He goes on to say that:

"All the defendant need say is that he requires the plaintiff to prove his case, and the law puts upon the plaintiff the onus of proving it. When the defendant says he does not admit the claim he need not carry the case any further than to say: 'There is a triable issue and I want to have it tried'."

Great care should be exercised in granting summary judgment and should not be exercised unless there is no real question to be tried (FANCOURT v MERCANTILE CREDITS (1983) HCA 25; (1983) 154 CLR 87 at 99; THESEUS EXPLORATION N Z v FOYSTER (1972) 125 CLR 507).

On the purpose of Ord.14, the following passage from the judgment of PARKER L.J. in HOME and OVERSEAS INSURANCE CO. LTD v MENTOR INSURANCE CO (UK) LTD (in liq) (1989) 3 All E.R. 74 at 77 is pertinent:

"The purpose of Ord 14 is to enable a plaintiff to obtain a quick judgment where there is plainly no defence to the claim. If the defendant's only suggested defence is a point of law and the court can see at once that the point is misconceived the plaintiff is entitled to judgment. If at first sight the point appears to be arguable but with relatively short argument can be shown to be plainly unsustainable the plaintiff is also entitled to judgment. But Ord 14 proceedings should not in my view be allowed to become a means for obtaining, in effect, an immediate trial of an action, which will be the case if the court lends itself to determining on Ord 14 applications points of law which may take hours or even days and the citation of many authorities before the court is in a position to arrive at a final decision."

Also on the affidavit evidence before me I am satisfied that judgment should not be entered against the defendant after bearing in mind the principles as to the burden of proof as stated by THOMAS J in HIBISCUS SHOPPING TOWN PTY LTD v WOOLWORTHS (Q'LAND) LTD [1993] NTSC 21; (1993) 113 FLR 106 at 109. He said:

"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:" see Australian & New Zealand Banking Group v David [1991] NTSC 74; (1991) 105 FLR 403; 1 NTLR 93.

Subject to what I say on the facts of this case, I conclude in the words of SOMERS J in AUSTRALIAN GUARANTEE CORPORATION (NZ) LTD v WYNESS (1987) 2 NZLR p.326 at p.330 which are as follows:

"We do not consider this case lays down any general rule that where a defence is raised which invokes the discretion of the Court under some statutory provision the power to enter summary judgment should not be exercised. So to hold would we think add a gloss to the rules about summary judgment. Where, as in the two cases mentioned, the evidence before the Court shows that an inquiry is necessary, or there is insufficient to enable the Court to be satisfied the defence must fail or that discretionary relief will not be given, the proper course will be to refuse to enter summary judgment. If, however, it is apparent that there is no further evidence available, and that the defence cannot succeed, then judgment should be entered."

Conclusion

So much for the law on the subject of Order XIV.

On the facts and circumstances of the two cases, considering the affidavits filed herein, it is abundantly clear that the defendants have not cooperated with the Plaintiff in finalising the Pre-trial Conference as required under Ord 34 of The High Court Rules. It appears that the matters are being unnecessarily dragged along. Had the parties complied with the Orders in Summons for Directions and with Ord 34 these actions would have been finalised long ago.

I have been seriously considering that the defendants in each case should have leave to defend the actions if they brought a sum of money into Court within a certain time. That this kind of Order can be made there is no doubt (vide headnote to PAROS (supra) at p. 353). However, in considering whether the leave to proceed to defend should be conditional or unconditional I must look at the facts surrounding the two cases. The defendants allege that particulars have not been given regarding the claims.

They could have easily applied for particulars long ago instead of dilly-dallying. The Plaintiff is no less to be blamed. It does not elaborate on its belief that there is no defence but instead is leaving it to Court to guess for itself the ground on which to grant the applications.

Defects in affidavit in support of an application for summary judgment pursuant to Ord.14 can be fatal and there it is incumbent on the applicant to ensure that the case was a proper case for summary judgment (BARCLAYS BANK plc v PIPER (The Times 31 May 1995): The following passage from the judgment of ROCH L.J. is apt in this case:

"Order 14 proceedings were unlike applications for interlocutory injunctions in which liberty to the defendant to apply to set aside the order would be a standard term. An Order 14 judgment finally disposed of the action in a summary manner.

The purpose of the rules relating to the contents of the affidavit in support was to ensure that the plaintiffs had demonstrated that the case was a proper case for summary judgment."

In deliberating on this aspect of the case I have noted the following passage from the judgment of DENMAN J in MANGER AND ANOTHER, SYNDICS UNDER THE BANKRUPTCY OF N. RODRIGUES ET CIE., v CASH (5 TLR at p271-272)

"The jurisdiction was one to be exercised with great care, so as not to preclude a party from raising any defence he may really have. The Judge was not to make the order if either he was satisfied that there was a defence, or that the defendant should be allowed to defend. There had been many cases decided on this Order, and especially two which appeared to support this view. One was, "Ray v. Barber," in the Court of Appeal in 1879, in which it was laid down that the Judge had a discretion if facts were shown on which he thought the defendant should be allowed to defend the action, conditionally or unconditionally, even though a defence was not clearly established. So in the case of, "Wallingford v. Mutual Assurance Company," in the House of Lords, in which a similar view was adopted. It was a hard thing to hamper a man who might probably have a defence by requiring him either to pay money into Court or find sureties for a large sum, which he might not be able to find. It was sufficient if facts were shown which made it very probable that there might be a defence, even though a defence was not clearly shown."

There DENMAN J agreed on appeal that it should not be just and fair to require the defendants to bring money into Court or find security. He said allowing this appeal that the Court should not shrink from exercising their own judgment in the case.

In that case MANISTY J at p.272 concurred with DENMAN J and said that:

"if there was a real and bona fide defence, the plaintiff ought not to be allowed to take a summary judgment, nor the defendant required to find money or security. In some cases it had been found that this ought not to have been required, and this showed how cautious the Courts should be in making such orders. Now, he could not say in this case that the defence set up was a sham; on the contrary, he thought it was bona fide, and, that being so, he felt compelled to concur in allowing the appeal."

In the exercise of my discretion on the facts and circumstances of this case, for the above reasons, I refuse the applications for summary judgment under Ord. 14. It is however ordered that the parties should without further undue delay proceed with due diligence to have the matter entered for trial. To facilitate this, as the parties have been dilatory in the past, I order that Pre-trial Conference in each case be held within 14 days of the delivery of this decision and to comply in all respects with Ord. 34 of the High Court Rules. Liberty is reserved to either party generally to apply to Court on matters incidental to this order. The costs are to be costs in the cause.

D. Pathik
Judge

At Suva
16 January 1998

HBC0009J.95B & HBC0017.93