IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0344 OF 2002

Between:

SHANTILAL BROTHERS (AUST) PTY LTD
Plaintiff

and

DEWAN CHAND
Defendant

Mr. H. Lateef for the Plaintiff
Mr. D. Sharma for the Defendant

DECISION

By summons filed 1 October 2002 the plaintiff is applying to Court under Order 14 of The High Court Rules for an order that summary judgment be entered for the Plaintiff on the grounds contained in the Affidavit of Peni Navu.

Background facts

On 20 August 2002 the plaintiff issued Writ of Summons against the defendant for the sum of A$21,894.58 allegedly pursuant to a Memorandum of Guarantee dated 7 January 1997 executed by the defendant in favour of the plaintiff in consideration of the plaintiff not proceeding with the Winding up Petition No. 198 of 1996 against Dee Cees Retreading Limited.

Pursuant to the said guarantee the plaintiff says that it withdrew the said winding up petition and the abovementioned sum of money remains outstanding as at 11 April 2002.

The Statement of Defence was filed on 27 September 2002 in which the claim is denied and a number of defences have been raised.

The issue

I agree with Mr. Lateef that from the pleadings and affidavits filed, the only issue for the Court’s determination is:

Is the guarantee valid and enforceable against the Defendant and is the Defendant liable to pay interest as stated on the Bills?

Consideration of the issue

The parties were discussing settlement and hence the written submissions as ordered were not filed until 3rd January 2003.

It is the defendant’s submission that, “although we signed the document headed Guarantee on 7th February 1997 on behalf of Dee Cees Retreading Ltd” he disputes the allegations as to consideration for the said Guarantee. He says that the ‘amount claimed by the plaintiff is not pursuant to the Guarantee’. He has raised a large number of defences through his counsel in his written submissions.

In this case the defendant has already filed a Statement of Defence but that will not in a proper case, necessarily prevent the plaintiff from making the requisite affidavit swearing to the belief that there is no defence and proceeding under Order 14 (McLardy v Slateum (1890) 24 QBD 504).

However on the affidavit evidence before me and after considering the written submissions it would be difficult to grant the order sought. I am not satisfied that there is no defence or no fairly arguable point to be argued on behalf of the defendant. The defendant has shown that he has some reasonable ground of defence to the action. His defences are spelt out in the counsel’s written submissions and I do not consider it necessary to reiterate them here.

On the facts and circumstances of the case I bear in mind the purpose behind the power to give summary judgment under Order 14, namely, that it is:

“………………intended only to apply to cases where there is no reasonable doubt that a plaintiff is entitled to judgment and where therefore it is inexpedient to allow a defendant to defend for mere purposes of delay” (Jones v Stone [1894] A.C. 122).

It has been held that:

“As a general principle, where a defendant shows that he has a fair case for defence, or reasonable grounds for setting up a defence, or even a fair probability that he has a bona fide defence, he ought to have leave to defend” [Saw v Hakim (1889) 5 T.L.R. 72].

On the authorities it is quite clear that:

‘leave to defend must be given unless it is clear that there is no real substantial question to be tried’ (Codd v Delap (1905) 92 L.T. 510 H.L.) that there is no dispute as to facts or law which raises a reasonable doubt that the plaintiff is entitled to judgment (Jones v Stone (1894) A.C. 122).

Here on the facts the defendant has filed a defence and on merits he cannot be shut out from laying his defence before the Court.

Conclusion

In opposing the application the defendant has, in my view and to my satisfaction shown cause through his Defence that the orders should not be made. There are triable issues and in these circumstances judgment cannot be entered against the defendant. In this context the following passages from the judgment in Powszechny Bank Ziwakowy W. Polsce v Paros (1932) 2 K.B. 353 are worth noting:

Greer L.J. at p.359 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’.”

In the light of the above I am of the view that the defendant meets the threshold requirements as enunciated by Greer L.J. and hence there ought to be a trial of the issues.

It is an important principle of the summary judgment procedure that the onus remains on the plaintiff throughout to establish that the defendant has no defence. The Court is not satisfied on this point. In the light of the evidence it could not be shown that there is no defence and therefore a full hearing is required. The defendant does not have to prove his case on a summary judgment application.

In the outcome, for the above reasons and on the principles applicable to summary judgment procedure, the summons is dismissed with costs to the defendant’s solicitor in the sum of $250.00 to be paid within 14 days of this decision. 

D. Pathik
Judge

At Suva
20 June 2003