| Fiji Islands - HP Kasabia Brothers Ltd v Khan - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
p class=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> CIVIL ACTION NO: HBC 460 OF 1999
BETWEEN:
H.P. KASABIA BROTHERS LIMITED
Plaintiff
AND:
SHAMEEMA KHAN
t/a G. KAY CONSTRUCTIONS
1st Defendant
G. KAY CONSTRUCTIONS LIMITED
2nd Defendant
SULTAN MOHAMMED KHAN aka GEORGE KHAN
AND SHAMEEMA KHAN
3rd Defendant
COUNSEL: Mr. G. Keil for Plaintiff
Mr. D. Sharma for Defendants
Mr. R. Gordon for Credit Corporation
Mr. T. Tuitoga for Merchant Bank of Fiji
Ms. V. Narayan for Sheriff of Fiji
Hearing: 11th January 2000
Judgment: 14th January 2000
DECISION
The Sheriff filed Inter-Pleader Summons pursuant to Order 17 of the High Court Rulesespect of chattels seized by the sheriff under
a writ of fiof fifa from the premises of G.K. Constructions Limited (the judgment debtor).
At the hearing of the summons, the execution creditor conceded that thims made by Credit (Corporation) Fiji Ltd, were validly made.
Heed that the moto motor vtor vehicles specified in the inter-pleader summons were under bill of sale/hire purchase agreement to
these companies, and that they should be withdrawn from the auctf chattels seized from G.K. G.K. Construction Ltd. By the Sheriff
of Fiji. The court made an orccordicordingly.
The only remaining issue ssue is that of costs. Credit Corporationchant Bant Bank and the Defts (the judgment debtor) submitted that
they were entitled tled to the costs of the inter-pleader summons procedure on the ground tha claims had been made in November last
year. They argy argued tf the vehe vehicles had been pulled out of the auction at the outset and if the execution creditor had agreed
that the claims were valued at that time, the Order 17 procedure would have been ussary.
Ms. V. Narayan for the Sheriff submitted that whilst the execution cor disputed the claims, the vehicles could not be so withdrawn,
and that any costs were paye payable by the execution creditor.
Mr. G. Keil submitted that the claims made in November and December 1999, were my letter and provided insufficient evidence to enable
the ethe execution creditor to make any concessions at all. In particulareferred to thto the affidavit of Sanjay Chand, sworn on
7th January 2000, for Credit Corporation which disclosed for irst time that the vehicles in question had been hired initially to the
Defendants, then laen later to The Fantasy Company (Fiji) which they entered into a hiring agreement with the Defendants.
17 Rule 7 of the High Court Rules provides that the court ourt “may in or for the purposes of any interpleader proceedings make suchr
as to costs or any other ther matter as it thinks just.”
The White Book (Supreme Court Practice (1997) Para 17/8/1)is helpful on the issue of costs. It says:
“As a gena general rule in a sheriff’s interpleader, where the claimant fails, the ff is entitled to his costscosts (including possession
money) from the time of the notice of the claim or from the sale whichever be the earlier. Where the cla succeeds, ths, the sheriff
is entitled as against the execution creditor to costs from the time when the latter authorised the interpleader summons - i.e.,
generally from the return of the interpleader summons. But in eithse the sheriff riff gets its costs from the execution creditor,
who (if successful) obtains a remedy over against that claimant.; Similarly a successful claimant gets its costs against the execution
creditor from the rehe return of the interpleader summons.” p p> &nnbsp;; &nsp;
O-GB>Order rder 17 Rule 2 of the High Court Rules provides:
“(1) Any person making a claim to or in respect of any money, goods or chattels, taken or intended to be taken in execution under
process of the Court, or the proceeds or value of any such goods or chattels, must give notice of his claims to the sheriff charged
with the execution of the process and must include in his notice a statement of his address,
ass=MsoN=MsoNormal style="margin-left: 36.0pt; margin-right: 72.0pt; margin-top: 1; margin-bottom: 1"> (2) On receipt of a claim made under this rule a sheriff must forthwith give notice thereof to the execution creditor and the execution
creditor must within 7 days after receiving the notice, give notice to the sheriff informing him whether he admits or disputes the
claim.
An execution creditor who gives notice in accoe with this paragraph admitting a claim shall only be liablliable to the sheriff for
any fees and expenses incurred by the sheriff before receipt of that notice.”
In this matter Ms. Narayan concedes that no notice was given to the execution creditor by the sheriff until the amended interpleader
summons was filed. However, thereafter on return of the amended summons the execution creditor disputed both claims.
In the circumstances it would be unjust to require the execution cred creditor to pay costs preceding the returthe inter-pleader summons,
ons, since no proper notice of the claims was given to him. Indeed, the claimants fils filed affidavits verifying their claims,
the execution creditor did not admit or dispute the claims.
I have not been told how the affidavits filed, ded, differed from the original claims made to the sheriffs by the two clai. However,
I see no r no reason why the execution creditor should not pay the costs for the hearing of 11th January 2000 for the Merchant Bank of Fiji. The letters annexed to the affidavit of Satendra Nandan sworn on 30th December 1999, clearly show that the Merchant Bank had disclosed the nature of its claim with copies of hire purchase schedules as
early aup>nd December 1999.&999. The affidavit of Satendra Nandan discloses very little additional information.
It is clear therefore that the general rule that the exec execution creditor must pay the claimant’ts in respect of the inter-pleader
summons, must prevail inil in the case of the Merchant Bank.
In respect of Credit Corporation I note that the Defendants in a letter to the Chief Registrar dated 29th
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> As such, the execution creditor’s inability to admit or dispute the claim prior to the filing of the affidavit, is ctly understandable.
bsp; In thcumstances I decI decline to order costs against the execution creditor in respect of Credit Corporation Fiji Ltd.
In respect of the Sheriff’s costs, I note that the execution tor undertook to indemnify the Sheriff for costs in respect of the vehicles
claimed, in then the event that the claims were sucul.
I therefore order that the Sherifferiff’s costs from the return of the amendterpleader summons be paid by the execution creditor.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> I therefore orhe execution creditor to pato pay $100 costs to the Merchant Bank of Fiji and $100 to the Sheriff of Fiji, to be paid
within 14 days of this judgment. Credit Corpor must pay itsy its own costs.
Nazhat Shameem
JUDGE
At Suva
14th January 2000
HBC0460D.99S
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