IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0216 OF 1997

Between:

SAMISONI TUI BALE
aka TUIMASI LUTU
T/A General Food Marketing Fiji Limited
Plaintiff

and

NATIONAL BANK OF FIJI
Defendant

Mr. I. Tuberi for the Plaintiff
Ms. R. Lal for the Defendant

DECISION

This is the plaintiff’s summons ‘for an Order of final judgment against the defendant in the sum of $251.935.00 constituting the first part of the Statement of Claim, with interest if any, and costs’ under the provisions of Order 14 r.1(1) of the High Court Rules 1988.

I have before me for my consideration an Affidavit in Support of Samisoni Tui Bale aka Tuimasi Lutu, the plaintiff, sworn 15 March 2002, an Affidavit in Opposition by Trevor Seeto, Manager Legal sworn 13 September 2002 and Affidavit in Reply by plaintiff sworn 17 September 2002.

Plaintiff’s contention

Essentially the plaintiff’s complaint is that the defendant has not accounted to him for the remittance from Westpac Banking Corporation the sum of $251,935.00 sent to his account No. 02-236847 – 2001-2 with the defendant. This amount was transferred to the defendant on 13 September 1993 but the records do not show this sum in the plaintiff’s statement of account for the period in question.

The plaintiff says that the defendant does not give any explanation for the disappearance of this sum of money. He says that the said sum was transferred to his said account with the defendant ‘which did not arrive at my account but was diverted somewhere else by the defendant’s employees, employee or agents and no explanation has been given to me even though I have made enquiries verbally and in writing.’

The plaintiff’s counsel submits that the defendant is ‘vicariously liable’ for the disappearance of the said sum and that there is no defence to explain why it has gone missing.

In his affidavit in reply the plaintiff rejects all the explanations given by the defendant in the affidavit filed on its behalf. The plaintiff has given answers to the issues and points made by the defendant.

Defendant’s contention

The defendant denies owing any sum at all but it accepts that it received the sum of $251,935.00 and disbursed it to three accounts of, namely, Mosese Waqavonovono &$200,000.00), Lutu Tuimamasi ($1925.00) and Tui Ta Importers Limited ($50,000.00).

Mr. Seeto deposes that the plaintiff knew how the fund was disbursed, with the plaintiff himself receiving the said sums of $1935.00 and $50,000.00 making a total sum of $51, 935.00.

The defendant says that it has filed its defence and will not only rely on documentary evidence at trial but also on oral evidence. The defendant questions that ‘if what the plaintiff says is true that it was cleared in 1998 of any wrongdoings why has it taken so long to bring this application for summary judgment some four years later’.

Counsel submits that this application is not within Order 14 [vide Or.14 r.(1)(2)(b)] and in the alternative the defendant has a good defence on the merits to this portion of the claim and the balance of the Plaintiff’s claim as stated in the Statement of Claim and Reply to Statement of Defence. It submits that this summons be dismissed and that it be given unconditional leave to defend.

Consideration of the issue

The plaintiff seeks summary judgment herein for the sum of $251,935.00. I have apart from the said affidavits filed in this action, the written submissions, inter alia, on law from both counsel as ordered. I must say that these submissions are very comprehensive and of assistance to Court in the determination of the issue before it.

The application is made under Or.14 r.1 of The High Court Rules which provides:

“Where in an action to which this rule applies a Statement of Claim has been served on a Defendant and that Defendant has given a notice of intention to defend the action, the Plaintiff may, on the ground that that Defendant has no defence to a claim included in the writ, or to a particular part of such 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 the Defendant.	

And in Or.14 r.1(2) which has also been raised in argument it is provided:

“Subject to paragraph (3), this rule applies to every action begun by writ other than 

(a)	an action which includes a claim by the Plaintiff for libel, slander, malicious prosecution or false imprisonment,

(b)	an action which includes a claim by the Plaintiff based on an allegation of fraud, [emphasis mine]

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 it has some reasonable ground of defence to the action. Its 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).

In this case the defendant has filed a Defence and Counterclaim and has raised an arguable defence and it should not be shut out from defending the part of the claim in question in this action.

The following Or.14 r.3 is pertinent when considering this application:

“Unless on the hearing of an application under rule 1., either the Court dismisses the application or the Defendant satisfies the Court with respect to the claim, or the part of a claim, to which the application relates 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 or part, the Court may give judgment for the Plaintiff against the Defendant on that claim or part as may be just having regard to the nature of the remedy or relief claimed.”

Conclusion

In opposing the application the defendant has to my satisfaction shown cause through its Defence that the orders sought 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
11 July 2003