IN THE HIGH COURT OF FIJI
[WESTERN DIVISION] AT LAUTOKA
CIVIL JURISDICTION

Civil Action No.: HBC 008 of 2013

BETWEEN:

HIROKAZA TAKAYANAGI also known as TAKAYANAGI HIROKAZU formerly of Martintar, Nadi presently Ichihara-Shi, Chiba, Japan, Businessman.
PLAINTIFF

AND:

SSS INTERNATIONAL HOTEL (FIJI) LIMITED a limited liability company having its registered office at 70 Cumming Street, 3rd Floor, 2nd Suite, Brijlal Building, Suva.
DEFENDANT

Appearances:	Mr Kitione Vuataki for Defendant/Applicant
Mr Roopesh Singh for Plaintiff

JUDGMENT

Introduction

1.	This is an application by way of Summons dated 5th November, 2013 by which 
the Defendant seek leave to appeal part of the Order made by the Master of High Court on 21st October, 2013 wherein the Master ruled in favour of the Plaintiff's Summary Judgment application and ordered:

Summary Judgment against the Defendant in the sum of $178,748.00 with costs 
summarily assessed at $1,650.00 and the Defendant to pay interest at the rate 
of 6 percent from 12th December, 2012 till date of payment in full."

2.	The application is supported by Affidavits of You Chang Cao and Yang Yu both
sworn on 30th October, 2013.

3.	The Defendant has sought to adduce fresh evidence by way of the same 
Summons and this Court has disallowed the said application and refused to entertain any fresh evidence by its ruling dated 5th June, 2014.

4.	Due to the said Order the following Affidavits which involves fresh evidence are 
disallowed.

The Affidavit of Ravikash Nand deposed 26th August, 2013.
The Affidavit of You Cheng Cao deposed 26th August, 2013.
The Affidavit of Joytika Devi deposed 26th August, 2013.
The Affidavit of Jone Bula Namakadre deposed 26th August, 2013.
The Affidavit filed in Support sworn by You Cheng Cao on 30th October, 2013.

5.	Furthermore I will disregard paragraph 7 to the 26 (inclusive) of the Affidavit 
filed in Support of this application sworn by Yang Yu on 30th October, 2013 as the said paragraphs also involves fresh evidence.

Leave to Appeal

6.	The Defendant has filed the application for leave to appeal pursuant to Order 59 
Rules 8(2), of the High Court Rules. The Rules require leave of a single Judge of the High Court to appeal from an Interlocutory Order or Judgment of the Master.

7.	When this matter was taken up for hearing on 26th August, 2015 Counsel 
appearing for both parties made Oral Submissions and tendered Written Submissions as well. They also submitted that both leave and appeal be considered together to save time and costs. Therefore I will first determine whether leave ought to be granted and if I decide to grant leave then delve into the merits of the grounds of appeal.

Leave Principles

8.	In Kelton Investments Ltd v Civil Aviation Authority of Fiji [1995] FJCA 15; 
Abu0034d.95C [18 July 1995) Hon Justice Moti Tikaram said:

"I am mindful that Courts have repeatedly emphasized that appeals against interlocutory orders and decisions will only rarely succeed. As far as the lower courts are concerned granting of leave to appeal against Interlocutory Orders would be seen to be encouraging appeals (see Hubbal v Everitt and Sons (Limited) [1990] 16 TLR 168). 	Even where leave is not required the policy of appellate courts has been to uphold Interlocutory decisions and Orders of the trial Judge – see for example Ashmore v Corp of Lloyd's [1992] 2 All ER 486 where a Judge's decision to order trial of a preliminary issue was restored by the House of Lords."

9.	In Ex parte Bucknell [1936] HCA 67 1936 56 CLR 221 at 224 the Court said:

"But, in the case of Orders from which an appeal does not lie without leave only because they are Interlocutory, it is clear from the terms of the section that the existence of special circumstances is not made necessary in order to justify the grant of leave to appeal. At the same time it must be remembered that the prima facie presumption is against appeals from Interlocutory Orders, and, therefore, an application for leave to appeal under sec. 35(1) (a) should not be granted as of course without consideration of the nature and circumstances of the particular case. It would be unwise to attempt an exhaustive statement of the considerations which should be regarded as a justification for granting leave to appeal in the case of an Interlocutory Order, but it is desirable that, without doing this, an indication should be given of the matters which the Court regards  as relevant upon an application for leave to appeal from an Interlocutory Judgment."

10.	In Darrel Lea (VIC.) Pty. Ltd. v. Union Assurance Society of Australia Ltd Full 
Court of the Supreme Court of Victoria said:

"With regard to the second condition relating to substantial injustice, Mr Stephen, who appeared with Mr Bingeman for the Defendant, submitted that in the light of the decision in Perry v. Smith it was not sufficient for the Applicant to show error in law in the making of the order and that the effect of the order was to deprive the Applicant of a chance or opportunity to obtain the Order it sought, but that the conditions required that it should be shown not merely that there was error in the Order, but also that substantial injustice would flow from the erroneous order if it were permitted to stand. We accept the submission so made by Mr Stephen; we think it is plain from the terms of the judgment to which we have already referred that the Full Court was stating that error of law in the Order does not in itself constitute substantial injustice, but that it is the result flowing from the erroneous Order that is the important matter in determining whether substantial injustice will result. We think that is plain from the Court's statement that the principle it was enunciating will apply even if the Court is satisfied as to the first condition, namely, that the Judge's Order was wrong. The problem is, therefore, to apply the principles established by Perry v. Smith as we understand them, to the circumstances of the present case."

11.	It is clear from the guidelines set out by the above mentioned authorities that the 
prima facie presumption is against appeals from Interlocutory Orders. Therefore in granting leave from Interlocutory Order, it is necessary to consider the nature and circumstances of the case and to see whether the case involve matters of procedure or substantial rights. If the Order is clearly wrong the Court should consider whether substantial injustice will result from it.

Determination

12.	In this case the Plaintiff claims from the Defendant FJD260,000 and a sum of 
JPY 196,727,000 as special damages. The action is based on a claim that Defendant bought Certificate of Title 24749 from Plaintiff at purchase price of FJS480,000 and paid $220,000 leaving a balance of $260,000.00.

13.	The Defendant filed defence on the 19th of February, 2013 that it only owed 
$178,748.00 to the Plaintiff.

14.	The Plaintiff by Summons dated 1st May, 2013 sought Summary Judgment 
against the Defendant in the sum of $260,000 and sum of JPY 196,727,000 or in the ALTERNATIVE Judgment to the Plaintiff in the sum of $178,748.00.

15.	The Defendant filed Summons dated 18th June, 2013 and sought the following 
Orders.

(i)	That the Plaintiff's Summons dated 01st May, 2013 be dismissed with costs.

(ii)	That the Defendant be granted leave to amend defence.

(iii)	That the Plaintiff's claim be struck out.

16.	By his Order dated 21st October, 2013 the Master granted leave to the Defendant 
to file Amended Statement of Defence and also entered Summary Judgment against the Defendant in the sum of $178,748.00 with costs summarily assessed at $1,650.00 and the Defendant to pay the interest at the rate of 6 percent from 12th December, 2012 till the date of payment in full.

17.	It is evident from the aforementioned proceedings that the Plaintiff has 
made the application for Summary Judgment following the admission by the Defendant in its first Statement of Defence that only $178,748.00 is due. In the amended Statement of Defence the Defendant states that they have paid all installments and the total payment made to the Plaintiff is $481,250.00. It is also stated therein that the total balance to be paid is a goodwill payment of $18,750.00.

18.	The Learned Counsel for the Defendant submits that the Master's Orders 
affected the Defendant's substantial rights as it is now ordered to pay a sum that it avers in its Amended Defence it has paid. He also submits that substantial injustice will result if the Defendant has to pay twice.

19.	The Learned Acting Master raises the following questions in his Judgment:-

(i)	Why were two cheques drawn on the same day on 12th February 2013?

(ii)	Why were these cheques not mentioned in the 1st Statement of Defence?

(iii)	Why were they in cash?

(iv)	Why two cheques on 12th March, 2013.

(v)	Why the 12th March cheques not paid into Court or through Defendant's Counsel.

20.	The questions Master raises in his Order as above are questions or issues arising 
out of the Amended Statement of Defence. In the Order wherein Summary Judgment was entered in favour of the Plaintiff the Master also grants leave to the Defendant to file the Amended Statement of Defence.

21.	While allowing the Amended Statement of Defence to be filed the Master in his 
Judgment poses questions on the payments averred in the proposed Amended Statement of Defence and come to the finding that such averred payments as "an afterthought" and "a mere assertion." In other words he has tried the issues arising out of the Amended Statement of Defence and entered Summary Judgment in favour of the Plaintiff. Though the Defendant is given the chance of filling the Amended Statement of Defence the Summary Judgment would prevent the Defendant to rely on the Amended Statement of Defence at the trial as the issue on the payment of $160,000.00 by cheques is already tried by the Master. 

22.	Due to the nature and circumstances of this matter, I find that substantial 
injustice would flow from the Summary Judgment if it were permitted to stand. 
Therefore I grant leave to appeal the Learned Master's Order in terms of prayer (a) of the Summons dated 5th November, 2013.

The Appeal

23.	I will now delve into the merits of the Grounds of Appeal annexed marked 
"YY10" to the Affidavit in Support sworn by Yang Yu on 30th November, 2013.

24.	Ground No. 1:

"The Learned Acting Master erred in law and in fact in not finding the date of payment and issued cheque numbers on disputed fact of further payment of $160,000.00 to Plaintiff's Attorney Mr Cao You Cheng by two cash cheques of $40,000.00 each on 12th February, 2013 and two cash cheques of $40,000.00 each on 12th March, 2013 and the facts deposed in the affidavits filed by Defendants as not being sufficient particulars for a triable issue."

25.	It is clear from Ground of Appeal No. 1 that the issues raised are not issues of 
Law but issues of fact. The Learned Master accepts in his Judgment that he must proceed on the Amended Statement of Defence. In paragraph 21 of the Judgment the Learned Master said:

"The issue to be decided by the Court in these proceeding is that whether the Defendant has an issue or question in dispute which ought to be tried. In other word the Court must determine that whether the Defence disclose an issue or question in dispute which ought to be tried. I must decide this issue on the assumption that the Defendant had filed this proposed amended Statement of Defence."

26.	Having said that he must decide the issue on the assumption that the Defendant 
has filed the proposed Amended Statement of Defence the Learned Master possess questions on the payments averred in the said Amendment. He then comes to the finding that the payments averred in the Amended Statement of Defence is an afterthought and it is a mere assertion.

27.	The Learned Master accepts that he must proceed on the Amended Defence but 
failed to consider that the Amended Defence possess triable issues. The Court of Appeal in Chand v Weddel Crown Corporation Ltd [1990] FJCA 4 Abu 0013 v 88S (18 May 1990) questioned the Summary Judgment of the High Court when it was found that the Learned Judge has tried the issues raised by the Statement of Defence. The Court of Appeal said:

"On our perusal of the Statement of Claim and the Statement of Defence there were issues raised by the Defendant/Appellant which ought to be tried. The learned Judge was not required to 'try' those issues."

28.	In ANZ Banking Group Limited v Buckley [2004] FJHC 317; HBC 272 of 2000L 
Honourable Justice Gates as he was known then said:

"[23].	The situation here is far less convincing of the existence of an arguable defence than that of Natawawa and Sadole v National Bank of Fiji (unreported) Court of Appeal Civil Appeal No. ABU0057.1999s, 17 May, 2002. In that case the two appellants had guaranteed advances to a company. The guarantors resisted summary judgment proceedings by filing an affidavit. The affidavit raised sufficiently credible facts of the existence of a trade practice concerning the ordering of chemicals and the issuance of letters of credit to an overseas seller. The Court of Appeal found that the affidavit had raised "a trade practice coupled with a fiduciary relationship between the respondent and the company which could be raised as a defence by the appellants as guarantors." (p3) In that sense, the appellants had discharged the onus.

[24]	Usually it is particulars that are required, not corroborative evidence. The Court of Appeal continued (at p.4-5):

"No doubt the provision of particulars is important in identifying an argument and delineating its scope and there may well be occasions when some kind of corroboration is required of the assertions even when set out in such detail as to amount of particulars.

In the end however, the proposition for which Lord Blackburn may be cited is that the Judge must be satisfied that there is a reasonable ground for the defence raised. There may be circumstances where this only can be established by providing corroborative evidence. But there may also be occasions when an assertion by a defendant is in context sufficient to make it plain to a Judge that there are reasonable grounds for a defence being explored in the ordinary way through an action."

29.	Though the Defendant in this matter has admitted that a sum of $178,748.00 is 
due, the Amended Statement of Defence refers to four other payments made by cheques to the Plaintiff. In my view the Defendant need not adduce corroborative evidence on the said payments in opposing the application for Summary Judgment. The Amended Defence discloses the cheque numbers and the amounts paid after filing the first Statement of Defence. I think it shows a bona fide defence which should be explored in the ordinary way through an action. 

30.	Even with no Affidavit in opposing Summary Judgment the Court of Appeal in 
Naidu v Carpenters Ltd [1992] FJCA 38 [1992] 38 FLR 215 (27 Nov 1992) considered the Defence and held there were triable issues and quashed the Summary Judgment ordered by the High Court. The Court of appeal said:

"We are of the opinion that, while the trial Judge was justified in his criticism Of the lack of an affidavit, he fell into error when he failed to consider the Statement of Defence and the issues pleaded therein. The Statement of Defence was filed on the 28th March, 1991. As we have pointed out earlier in our judgment, a defendant under 0.14 may show cause by affidavit or otherwise. A Statement of Defence may be a sufficient mode of showing cause. See Maganlal Brothers Limited-v-L.B. Narayan & Company (supra). The Statement of Defence pleaded the following: ………………………………………………………….."

Ground 2 and Ground 3

Ground No. 2:	

"The Learned Acting Master erred in law in making findings of doubt on disputed fact of further payment of $160,000.00 to Plaintiff's Attorney Mr Cao Cheng by two cash cheques of $40,000.00 each on 12th February, 2013 and two cash cheques of $40,000.00 each on 12th March, 2013 as not being genuine to raise triable issues by having those doubts put to the Defendant's witness by the Court under Order 14 Rule 4(b) of the High Court Rules or at trial and the Defendant's Counsel re-examining on those questions."

Ground No. 3:

"The Learned Acting Master erred in law and in fact in not finding the averment of payment of $160,000.00 to Plaintiff's Attorney Mr Cao You Cheng by two cash cheques of $40,000.00 each on 12th February, 2013 and two cash cheques of $40,000.00 each on 12th March, 2013 and the facts deposed in the Affidavits filed by Defendants as not being some other reason for a triable issue when such averment denied by Plaintiff was one for cross examination by Defendant as to such denial."

31.	The other two grounds of appeal raises the issues why the Master questioned the 
credibility of the evidence adduced by the Plaintiff in regard to the payment of $160,000.00 by cheques. As mentioned above, the questions Master raised in regard to the said payments should not have been tried in a summary manner. They are issues which ought to be tried at a Trial. The Learned Master allowed to file the Amended Defence which was to cater for the later payment of $160,000.00. Therefore, there cannot be a inconsistency of the defence as the earlier defence is abandoned with the amended defence.

Conclusion

32.	Due to the reasons set out above I make the following Orders:

(a)	The appeal is allowed.
(b)	The Part of Judgment of the Learned Acting Master given on 21st October, 
2013 that "Summary Judgment against the Defendant in the sum of $178,748.00 
with costs summarily assessed at $1650 and the Defendant to pay interest at the rate of 6 per cent from 12th December, 2012 till the date of payment in full" is set aside.
(c)	I make no order as to costs.
(d)	Orders accordingly.

Lal S. Abeygunaratne
[Judge]

At Lautoka
28th September, 2015