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Loks Crane Rigging Piling Contractors Ltd v Australia and New Zealand Banking Group Ltd [2005] FJHC 549; HBC0372.2004L (30 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0372 OF 2004L

BETWEEN:

LOKS CRANE RIGGING PILING CONTRACTORS LIMITED
Plaintiff

AND:

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
Defendant

Ms. S. Muir for the plaintiff
Mr. K. Kumar for the defendant

Date of Hearing: 30 September 2005
Date of Judgment: 30 September 2005

EX TEMPORE JUDGMENT

The plaintiff by Summons filed on the 21^st June 2005 seeks summary judgment in this matter. The details of the judgment is set forth in the sum of $730.00.

In support of the Summons, the plaintiff relies upon an affidavit of its Managing Director, Chandar Lok, filed on the 27^th May 2005 and further affidavit of that same deponent filed on the 31^st January 2005.

The Summons is opposed and the defendant relies upon the affidavit of Vijendra Singh filed on the 12^th May 2005.

Both counsel have placed before the Court their skeleton submissions and addressed those submissions and have supported their submissions by relevant authorities.

I think that the fundamental position with respect to summary judgment applications pursuant to Order 14 of the High Court Rules is perhaps expressed by Fatiaki J in Fiji Development Bank v Inoke Moto & Ors where His Lordship referred to a decision of the New Zealand Court of Appeal in Pemberton v Chappel [1986] NZCA 112; (1987) 1 NZLR 1 (C.A.) where that Court was that considering provisions equivalent to Order 14 of the Rules of the High Court of Fiji and the Court said:

“The High Court Rules casts onto the plaintiff the onus of convincing the Court that the defendant has no fairly arguable defence. Normally that onus will be satisfied by the plaintiff’s affidavit verifying the allegations in the statement of claim and his oath that he believes that the defendant has no defence to the claim...If a defence is not evident on the plaintiff’s pleadings and the defendant wishes to resist summary judgment, the defendant must file an affidavit raising an issue of fact or law and give reasonable particulars of the matters which he claims ought to be put in issue. Where the only arguable defence is a question of law, which is clear-cut and does not require findings on disputed facts or the ascertainment of further facts, the Court may, and normally should, decide it on the application for summary judgment. But where the defence raises questions of fact on which the outcome of the case may turn it will not often be right to enter summary judgment.”

His Lordship then went on and said:

“Over a century earlier in 1880 Lord Blackburn in Wallingford v Mutual Society [1895] UKLawRpAC 39; (1895) A.C. 675 said of the nature of the affidavit filed when the defendant opposing the Order 14 application at page 704.

I think that when the affidavits are brought forward to raise that defence they must, if I may use the expression, condescend upon particulars. It is not enough to swear, “I say I owe the man nothing.” Doubtless, if it was true, that you owed the man nothing, as you swear, that would be a good defence. But that is not enough. You must satisfy the judge if there is reasonable ground to saying so and in like manner as to illegality, and every other defence that might be mentioned.”

The difficulty that I face with this application is that it is always extremely difficult, apart from in exceptional circumstances, to conclude that defence whether it be raised in a pleading or in an affidavit does not raise questions of fact on which the outcome of the case may turn.

In the facts of this matter before the Court, the plaintiff argues that the defendant in relying on a Bill of Sale as the basis for seizing the motor vehicle cannot, as that Bill of Sale has no standing. It was void as the borrower had no title to the motor vehicle offered as security.

The only evidence in support of the sale and who owns the motor vehicle at the relevant time is that contained in the annexure to the affidavit of Chandar Lok, that is a letter to the solicitors for the vendor stating that she sold the vehicle to Chandra Lok. The letter says that the vehicle was sold in 1999 but is no more specific than that.

The Bill of Sale was registered on the 17^th March 2000 and is dated 6^th March 2000. At the time the Bill of Sale was executed and registered, it is acknowledged that Chandar Lok was not the registered owner of the motor vehicle but it is contended by the plaintiff that he was the legal owner.

The defendant says both in submission and in the affidavit of Vijendra Singh that the purposes of the advance of the sum of $12,000.00 was for Nasib Ali, the borrower, to purchase the subject motor vehicle and that on purchase the vehicle became security. Whilst the defendant raises the issue if Nasib Ali was in fact the lawful owner of the motor vehicle at the time the Bill of Sale was given and registered, there is no evidence placed before the Court to this effect. The defendant submits that this is a question of fact on which the outcome of the case might turn and whilst on the material available at this time, it would appear that the plaintiff may well succeed, there is a question of fact on which the outcome of the Court might turn, that is, a question as to whether Nasib Ali did have legal ownership of the motor vehicle at the time the security was given to the defendant.

I can’t be certain of the answer to that question and on the basis of the authorities to which I have referred, I am of the opinion that there is no choice but to dismiss the plaintiff’s Summons.

Costs to be costs in the cause.

John Connors
JUDGE

At Lautoka
30 September 2005