| Fiji Islands - See Dee Timber Ltd v ANZ Banking Group Ltd - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC 0167 OF 1999
BN:
:
SEE DEE TIMBER LTD. & ANR.
Plaintiffs
AND:
ANZ BANKING GROUP LTD. & ANR.
Defendants
Counsel: Messrs Sahu Khan & Sahu Khan for Plaintiff
Parshotam & Company for Defendant
Hearing: 28th May 1999
Decisiosup>st June 1999
REASONS FOR DECISION
On 28thth May 1999 this court granted an application by the 2nd Defendant to dismiss Civil Action No. 167 against him, for want of prosecution, pursuant to Order 25 Rule 1(4) of the High Court
Rules. These are the reasons for that decision.
On 16th October 1997 a writ of summons was issued by the 1st and 2nd Plaintiffs, See Dee Timber Limited and Raj Mati f/n Saraf Raj, against the ANZ Bank the 1st Defendant and Bruce Sutton as Receiver, as 2nd Defendant.
The Statement of Claim alleged that in 1994 the 1st Plaintiff had executed a debenture over its assets, and a Mortgage over Crown Lease No. 11845 in favour of the ANZ Bank. The Bank
appointed the 2nd Defendant as Receiver, and he advertised the property of the 1st Plaintiff for mortgagee sale with tenders closing on 19th September 1997. It was claimed that the 2nd Defendant did not properly advertise the property for sale and did not attempt to ensure the best market value. The supporting affidavit
of one Permallu Law clerk deposes that the Defendants had refused to arrange for the transfer of the mortgage.
On the basis of the writ, affidavit and ex-parte summons, Lyons J granted an interim injunction ex-parte until 24th October 1997 restraining the defendants from exercising their powers of mortgagee sale.
On 27th November 1997 the injunction was dissolved by consent. An affidavit sworn by Christopher Robin Griffiths, Bank Manager deposed at
paragraph 10 that the 1st Plaintiff owed to ANZ Bank $371, 684 as of 21st October 1997 with interest accruing at $124.70 per day. It further deposed that the 1st Defendant had defaulted in its payments since November 1996, that other related companies of the Plaintiff had been wound up and
that despite many meetings between the Plaintiff, the Bank and the Receiver, no monies had been received from the 1st Plaintiff to discharge the debt.
On 7th November 1997 the 1st Defendant filed a Statement of Defence. On 12th December 1997 the 2nd Defendant filed a Statement of Defence giving details of advertisement, denying any agreement to the transfer of the Mortgage to
a nominee of the 1st Plaintiff, and stating that the Plaintiffs had not, at any time tendered any money to redeem the mortgage or to seek transfer of
the same.
On 8th January 1998 the action was transferred from Lautoka to Suva. No further action was then taken until the 2nd Defendant applied for dismissal for want of prosecution by way of summons and affidavit on 20th April 1999.
The application was listed before the Deputy Registrar on 5th May 1999. Counsel appeared for the Plaintiff and for the 2nd Defendant. Counsel for the Plaintiff asked for time to file an affidavit in reply. The matter was adjourned to 19th May 1999. On 19th May 1999, again before the Deputy Registrar, there was no appearance for the Plaintiff. Mr H. Lateef appeared for the 1st Defendant, Ms Neelta for the 2nd Defendant. The matter was again adjourned to 21st May 1999.
On 21st May 1999, the matter was called before this court. Again there was no appearance for the Plaintiff. The counsel for the 2nd Defendant was asked to file a supplementary affidavit deposing as to any prejudice caused to the defendant by the delay. The matter
was again adjourned to 28th May 1999 when the application was heard in chambers. There was no appearance for the plaintiff. Counsel for the 2nd Defendant made submissions to support the application.
Counsel argued that the plaintiffs had shown no interest in the proceedings since the interim injunction was dissolved and the matter
transferred to Suva. She argued that the delay was intentional and that the purpose of the original writ was to get interim relief.
She argued that even if the delay was not intentional, it was inordinate and inexcusable, and that the 2nd defendant’s duties as receiver was hampered by the existence of the writ. She submitted that the plaintiff had been given time
to file an affidavit to respond to the summons for dismissal, but had failed to comply. The 2nd Defendant now wished to complete the duties associated with the receivership. Further the 2nd Defendant’s witnesses had been posted abroad and the delay had affected his ability to defend the action. Counsel therefore
submitted that the delay would prevent a fair hearing.
The principles guiding the consideration of a summons for dismissal for want of prosecution are that the court should only dismiss
when the plaintiff’s default had been intentional and contumelious, or whether there had been inordinate and inexcusable delay
on the plaintiff’s part which gave rise to a substantial risk that a fair trial would not be possible or to serious prejudice
to the Defendant (Birkett -v- James (1978) AC 297).
Furthermore, an application for dismissal should not normally be considered within the limitation period unless the plaintiff’s
conduct has been intentional.
In Merit Timber Products Ltd -v- Native Land Trust Board Civil Appeal No. 52 of 1994, the Supreme Court, in considering a delay of some 12 years, approved the approach adopted by both the
High Court and the Court Approach when they asked whether firstly there was inordinate and inexcusable delay and secondly whether
such delay prevented a fair trial or had caused serious prejudice to the defendant.
Applying those principles to this case, I consider that the plaintiff’s failure to take steps to proceed to trial, to file an
affidavit in response to the present application, or to appear in response to the Deputy Registrar’s order, are sufficient grounds
for a finding that the conduct of the plaintiff has been intentional.
However, although this may dispose of the application, in any event if such delay was not intentional, I am satisfied that the delay
was inordinate and inexcusable and that such delay has caused prejudice to the 2nd Defendant in his duties as receiver.
For these reasons I grant the 2nd Defendant’s application. I make no order for costs.
Nazhat Shameem
JUDGE
At Suva
1st June 1999
HBC0167D.99S
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