IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 320 of 2016

BETWEEN	: 	CONSORT SHIPPING LINE LIMITED a limited liability company of Lot 4 				Matua Street, Walu Bay, Suva, Fiji Islands.
PLAINTIFF

AND	:		ADRIAL RAJEEV PRASAD and IMOVE LOGISTIC LIMITED both of Lot 1-2 	Matua Street, Walu Bay, Suva, Fiji Islands, Businessman and limited liability company 	respectively.

1ST DEFENDANT

AND	:		RONALD AVINASH PRASAD present address and occupation unknown to the 	Plaintiff.

2ND DEFENDANT

BEFORE:			Master Vishwa Datt Sharma
COUNSEL:		Mr. Filipe 	 - for the Plaintiff
Mr. Amrit Chand   - for the 1st & 2nd Defendants

Date of Ruling:		27th February, 2018

JUDGMENT
[Summons for Summary Judgment pursuant to Order 14 and 59 (2) (b) of the High Court                                                                                                Rules,1988, and the Inherent Jurisdiction of this Honourable Court]

INTRODUCTION

1.	The Plaintiff filed the Summons for Summary Judgment on 20th January, 2017 and sought for the following orders against the Defendants-

(i)	Judgment in the sum of $52, 789.26 (Fifty Two Thousand Seven Hundred Eighty Nine Dollars and Twenty Six cents).
(ii)	Interest of 12% per annum on the sum of $52, 789.26 calculated monthly beginning 17th January, 2017 and every other 17th day of the month thereafter until the amount owing is paid in full.
(iii)	Costs to be summarily assessed and paid by the Defendants to the Plaintiff within a prescribed period.
(iv)	Such further or other relief as the Court may deem just. 
2.	The application is made pursuant to Order 14 Rules and 59 (2) (b) of the High Court Rules, 1988 and the Inherent Jurisdiction of this Honorable Court.  

THE LAW 

3.	Order 14 of the High Court Rules, 1988 deals with Summary Judgment applications which states-

1.-(1) Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has given 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 a 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 that defendant.

(2) 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.
(3) This Order shall not apply to an action to which Order 86 applies.

4.	Order 59 (2) (b) of the High Court Rules, 1988 deals with applications for summary judgment. 

PLAINTIFF’S CASE

5.	The Plaintiff submitted that there is no evidence or valid defence whatsoever before this Court to show why judgment should not be entered against the Defendants.
6.	There is no denying that there was an Asset Sale Agreement dated 6 May 2015 which was executed by both parties. The terms of the Asset Sale Agreement are very clear on roles of the purchaser and the vendor.
7.	The agreed purchase price of the assets was $373,750.00 (VIP). Clause 3.1 (a) of the Agreement required the First Defendant to pay the Plaintiff the Purchase Price as follows:
(i)	$325,000 by Bank cheque on or before 17th May,2015;
(ii)	The balance purchase price of $48,750.00 (consisting of VAT portion of the transaction) on or before 16th May, 2016. 
8.	The Plaintiff had delivered to the first Defendant the various assets on or about 1st June, 2015 in exchange for the sum of $325,000.
9.	The remaining balance of the purchase price, $48, 750 was to be paid by the first Defendant on or before 16th May, 2016 but remains unpaid to date.
10.	Under Clause 3.19 (c) of the Asset Sale Agreement, the Defendant agreed to pay the Plaintiff interest of 12 % per annum on the remaining balance and the same is admitted to by the Defendant in the Affidavit in Answer.
11.	The Defendant failed to settle the outstanding balance of the purchase price on or before       16th May, 2015. Hence, the interest on the unpaid balance was charged at the rate of 12%.
12.	The terms of the Asset Sale Agreement are very clear and the Defendants and the Plaintiff were aware and understood the context of the Agreement. Therefore, the Defendant has no valid defence in this matter. 
13.	The also Plaintiff relies on its Affidavit evidence and the written submissions filed herein.
14.	Summary Judgment is sought for accordingly.   

DEFENDANT’S CASE 
14.	This claim is a debt recovery claim which has in fact arose from the Asset Sale Agreement between the Plaintiff and the First defendants for purchase of the Plaintiffs Truck and other business assets when the Plaintiff were closing its operation and the first defendants were commencing their new set up and the business.
15.	Summary judgment against the defendant cannot be entered as there is a substantial defence of the Defendants.
16.	The Plaintiffs themselves have failed and are continuing in failing to follow their own agreement which they had in fact entered with the first named first defendant.
17.	There are lots of tribal issues which actually by way of oral evidence can be resolved and sorted out.
18.	This court cannot make its decision on summary judgment just by looking at the affidavit and hearing to the counsel's submission. Proper trial and evidence needs to be produced.
19.	There are many discrepancies with the Plaintiff themselves first needs to sort it out with the defendants just to have the proper reconciliation.
20.	It would be presumptive of this court to grant summary judgment on the facts as presented when there is clearly substantial, valid and reasonable defence together with the counter claim.
21.	The court shall refuse the summary judgement and the matter to proceed with its normal course since Summary Judgment is only given where it is clear that there is no arguable defence to the claim. If there is an arguable issue to be tried, in particular where there are matters of fact to be resolved which can only be resolved at trial, the court gives leave to defend and the case goes to trial to be heard out.
22.	The Defendants also rely on the Affidavit evidence and the written submissions filed herein.
23.	The Defendants seeks the costs of $1500.00 in this matter against the Plaintiff
ANALYSIS and DETERMINATION
20.     On 20th January, 2017 the Plaintiff filed the Summons seeking for Summary Judgment against the Defendants.
 
21.	The Plaintiff’s contention after perusal of the statement of Defence, Affidavit in Answer and Supplementary Affidavit that there is no valid Defence whatsoever before the Court to show why judgment should not be entered against the Defendants.
22. 	There is no denial by the Defendants that there was an Asset Sale Agreement executed by both parties on 06th May, 2015.
23.	The 1st Defendant admits at paragraph 10 of his Answering Affidavit that Clause 3.1 (a) of the Sale Asset Agreement required the 1st Defendant to pay the Plaintiff the purchase price as follows-
(i)    $325,000 by Bank cheque on or before 17th May, 2015;
	(ii)    The balance purchase price of $48, 750 on or before 16th May, 2015.
24.        Pursuant to the Agreement, the 1st Defendant also admits at paragraph 10 of his Answering Affidavit that the Plaintiff delivered to the 1st Defendant the various assets on or about 01st June, 2015 in exchange for the sum of $325,000.   
25. 	However, the 1st Defendant’s contention is that the Plaintiff had further duty to ensure that all assets as stipulated in the Asset Sale Agreement in terms of Schedule 1 and 2 are delivered to the 1st Defendant.
26. 	The Plaintiff had failed to deliver all the assets mentioned within the schedule and therefore the payments were on hold.  About fifteen (15) of the trucks within the Asset Sale Agreement were in a deteriorating condition and therefore were not in a transferable state as per the requirements of the Land Transport Authority.
21.	According to the principles of summary judgment, the Defendants are required to file an affidavit that deals specifically with the Plaintiff’s claim and state clearly the defence and facts it relies upon to support it. If there is no affidavit filed at least the Statement of Defence must clearly set out the Defence.

In Coral Surf Resort Ltd v Yam Civil Action No. 66 of 2008, Master Tuilevuka  (as he was then) stated as follows-	
‘Once a claim is established, the evidential and persuasive burden shifts to the Defendant (see Thomas J in Hibiscus Shopping Town Pty Ltd v Woolworths Ltd [1993] FLR 106 at 109) who must adduce affidavit claim and affidavit and also state clearly and precisely what the defence is and what facts he relies on to resist the entry of summary judgment: Magan Lal Brothers Ltd v L. B. Masters & Company Civil Appeal No. 31/84.’

22.	The defendants resisting the summary judgment must establish that there is an issue or question in dispute with respect to the Plaintiff’s claim or part of the claim which ought to be tried or there ought for some reasons to be a trial of that claim or part. If the defendants fail to do so, then the court will enter summary judgment against the defendants on that claim or part pursuant to Ord. 14, r.3 of the HCR. 1988.

23.	Pursuant to Ord. 14, r. 1 (1) of the HCR, 1988, where in an action to which this applies, a statement of claim has been served on a defendant and that defendant has given 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 particular part of such a claim, apply to the court for summary judgment against that defendant.

24.	Further, pursuant to Ord. 14, r.1 (2), subject to paragraph (3), this rule applies to every action begun by Writ other than an action which includes a claim by the Plaintiff for libel, slander, malicious prosecution or false imprisonment, and an action which includes a claim by the Plaintiff based on an allegation of fraud.
Sub paragraph (3) stipulates that this order shall not apply to an action to which Order 86 applies.
25.	Bearing in mind the above provisions of the law, it is therefore important that I must decide whether summary judgment is available to the plaintiff in this case with regards to the nature of the claim.

26.	In this case, the writ of summons was served and the defendants have filed an acknowledgement of service giving notice of intention to defend the action. Thereafter, on 26th January, 2017, the 1stand 2nd Defendants filed their Statement of Defence and Counter-Claim. Therefore, the Plaintiff is entitled, pursuant to Ord.14, to apply for summary judgment against the defendants. Further, the filing of a statement of defence and the counter-claim before an application for summary judgment does not preclude an application being made, nor does it prevent summary judgment being granted if the court is of the view that there is no defence to the claim.

27.	The Fiji Court Appeal in Carpenters Fiji Ltd  v  Joes Farm Produce Ltd [2006] FJCA  60; ABU 0019U of 2006S (10 November 2006), Case dealing with summary judgment application, laid down the well-established principles in relation to the entry of summary judgment under paragraph 21 as follows:

(a)	"The purpose of 0.14 is to enable a plaintiff to obtain summary judgment without trial if he can prove his claim clearly and if the defendant is unable to set up, a bona fide defence or raise an issue against the claim which ought to be tried.

(b)	The defendant may show cause against a plaintiff's claim on the merits e.g. that he has a good defence to the claim on the merits or there is a dispute as to the facts which ought to be tried or there is a difficult point of law involved.
(c)	It is generally incumbent on a defendant resisting summary judgment, to file an affidavit which deals specifically with the plaintiff's claim and affidavit and states clearly and precisely what the defence is and what facts are relied on to support it
(d)	Set off, which is a monetary cross claim for a debt due from the plaintiff, is a defence. A defendant is entitled to unconditional leave to defend up to the amount of the set off claimed. If there is a set off at all, each claim goes against the other and either extinguishes or reduces it Hanak  v  Green (1958) 2 QB  9  at page 29 per Sellers LJ.
(e)	Likewise where a defendant sets up a bona fide counter claim arising out of the same subject matter of the action, and connected with the grounds of defence, the order should not be for judgment on the claim subject to a stay of execution pending the trial of the counter claim but should be for unconditional leave to defend even if the defendant admits whole or part of the claim. Morgan and Son Ltd – v - Martin Johnson Co (1949) I K 107(CA).
       See 1991 The Supreme Practice Vol 1 especially at pages 146, 147,152 and 322."
28.	Reference is also made to the Halsbury’s Law of England (4th Ed) Volume 37 para 413-415, which states as follows-

		413: Defendant showing cause:		
	Where the Plaintiffs application for summary judgment under Order 14 is presented in proper form and order, the burden shifts to the defendant, and it is for him to satisfy the court and 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. Unless the defendant does so, the court may give such judgment for the plaintiff against the defendant as may be just having regard to the nature of the remedy or relief claims.	
	The defendant may show cause by affidavit or otherwise to the satisfaction of the court. He must “condescend upon particular”, and, in all cases, sufficient facts and particulars must be given to show that there is a genuine defence. The defendant must serve his affidavit on the plaintiff or his solicitor at least three days before the return day. The affidavit may contain matters of hearsay provided the sources of information and grounds of belief are disclosed. The court has power to order a defendant showing cause or an officer of a body corporate to produce any document, and to attend and be examined on oath if there are special circumstances making it desirable to do so. By necessary implication, the obligation on the defendant to dhow cause allows the plaintiff to answer the defendant’s case.

		414: Unconditional leave to defend:
	The power to give summary judgment under Order 14 is intended to apply only in clear cases, where there is no reasonable doubt that the plaintiff is entitled to judgment and where it is entitled to judgment and where it is inexpedient to allow a defendant to defend for mere purposes to delay.Leave to defend will therefore be given where the defendant shows that he has a fair case, that there is an issue or question which ought to be tried, or that there are reasonable grounds for setting up a defence or even a fair probability that he has a bona fide defence.
	However, the defendant does not have to show a complete defence, but only a fair probability of a defence, or that there is a real substantial issue or question to be tried, or that there is a dispute as to facts or law which raises a reasonable doubt whether the plaintiff is entitled to judgment. The procedure under order 14 was not intended to shut out a defendant who could show that there was an issue or question that ought to be tried or that for some other reason there ought to be a trial.
	Leave to defend will be given where the amount recoverable to be clearly subject to a reasonable inquiry or to an account being taken.
		415: Conditional leave to defend:
	The court may give a defendant against whom an application for summary judgment is made under Order 14 leave to defend the action with respect to the claim, or the part of the claim, to which the application relates either unconditionally or conditionally, that is, on such terms as to giving security or time or mode of trial or otherwise as the court thinks fit. Conditional leave to defend will be granted where the court forms the view, on the material before it, that the defence set up is a sham defence or it is shadowy, or that there is little or no substance in it or that there is something suspicious in the defendant’s mode of presenting his case or the master is very nearly prepared to give judgment for the plaintiff. However, if there is no sign of bad faith nor anything to show that the defence is a sham nor any suspicious circumstances as to the mode of presenting the case, leave to defend should not be conditional, nor should it be conditional where the practical result would be likely to deprive the defendant unjustly to his defence. The usual form of conditional leave to defend requires the payment of the whole or part of the claim into court.
29.	Reference is also made to the case of Metal works & Joinery Limited v Fiji Islands Revenue & Customs Authority, Justice Pathik applying the Court of Appeal decision delivered by Greig J in Australia Guarantee Corporation (NZ) Ltd-v- Mc Beth [1992] 3 NZLR 54 at 58 held in determining the issue before him on the facts and circumstances of this case:-

‘The summary judgment procedure is a simple expeditious way to enable a plaintiff to obtain judgment where there is no real defence to the claim made see Pemberton v Chappell [1987] 1 NZLR 1 at 2. The essence of the procedure is the plaintiffs own verification by affidavit of his own statement of claim and the allegation made in it: Harry Smith Car Sales Ltd v Clay com Vegetable Supply Co Pty Ltd [1978] 29 ACTR 21. There has to be balancing between the right of the defendant to have his day in court and to have his proper defences explored and the appropriate robust and realistic approach called for by the particular facts of the case: see Bilby Dimock Corporation Ltd v Patel {1987] 1 PRNZ 84 and Cegami Investment Ltd v AMP Financial Corporation [NZ] [1990] 2 NZLR 308 at p. 313. Although the onus is upon the plaintiff there is upon the defendant a need to provide some evidential foundation for the defences which are raised. If not the plaintiffs verification stands unchallenged and ought to be accepted unless it is patently wrong.’
30.	I have perused the 1st and 2nd Defendants Statement of Defence as well as the Counter-Claim filed on 26th January, 2017. The Defendants either admit in part or completely deny various paragraphs of the Plaintiff’s Statement of Claim and further clarifies and explains what transpired between the parties to this proceeding.
31.	The Plaintiff filed a Reply to the Defence and Defence to Counter-Claim joining issues with the Defendants on paragraphs 1-12 of their Defence save in so far as the same consists of admissions. Once the Plaintiff joins issues with the Defendants on their Defence and Counter-Claim, it becomes obvious that the Plaintiff acknowledges that the Defendants have raised a dispute for this Court’s determination. 

32.	The Defendants have admitted paragraph 5 of the Plaintiff’s claim which states “By Asset sale Agreement dated 06th May, 2015, the 1st Defendant agreed to purchase various assets from the Plaintiff for the sum of $373,750.00”  but further says “that all assets had not been delivered to the 1st Defendant and the vehicles/trucks that were part of the sale, 15 vehicles out of 26 were not transferred on the 1st Defendant’s name but are still registered under the Plaintiff’s name since the vehicles were not in a transferable condition. “Also numerous items from the plants and fixtures listing were not supplied to the 1st Defendant as well.”
33.	The 1st Defendant admits paragraph 6 of the Plaintiff’s claim that the 1st Defendant was to pay money as stated in the claim. However, he says that the full settlement was to be finalized when all the assets which the Plaintiff has sold pursuant to the Asset Sale Agreement was fully delivered  and were in road worthy condition and transferrable in terms of the requirements of the Land Transport Authority. 
34.	Further response to the Plaintiff’s claim at paragraph 6, the 1st Defendant states that upon receipt of the first payment of $325,000, the balance payment of $48, 750.00 was to be paid as per the prescribed date upon a proper completion of settlement by the Plaintiff.
35.	In response to paragraph 7 of the Plaintiff’s claim, the 1st Defendants payment of $325,000 to the Plaintiff but denies the rest of the paragraph and puts the Plaintiff to strict prove to the worth of items delivered in exchange of, for the sum of $325,000. 
36.	The 1st Defendant denies paragraph 8 of the Plaintiff’s claim and his contention is that the Plaintiff has breached the Asset Sale Agreement when he failed to deliver the full assets and ensured that the vehicles were in a road worthy condition and transferable. 
37.	In summing up the Defence, the 1st Defendant says that the Plaintiff is not entitled to any such interest of 12%, Judgment and cost as the Plaintiff is jointly a party to delay caused in full settlement of the assets.  
38.	However, the Plaintiff submitted otherwise that there is no evidence or valid defence before this Court whatsoever to show why judgment as sought for by the Plaintiff should not be entered against the Defendants.
39.	The Plaintiff confirms and the 1st Defendant doesn’t deny that the Plaintiff had in fact delivered various assets to the first Defendant on or about 1st June, 2015 in exchange for the sum of $325,000. 
40.	Further, it is also not denied by the 1st Defendant that the remaining balance of the purchase price, $48, 750 was to be paid by the first Defendant on or before 16th May, 2016.
41.	Under Clause 3.19 (c) of the Agreement, the Defendant agreed to pay the Plaintiff interest of    12 % per annum on the remaining balance and the same is admitted to by the Defendant in the Affidavit in Answer.
42.	The Defendant failed to settle the outstanding balance of the purchase price on or before       16th May, 2015. Hence, the interest on the unpaid balance was charged at the rate of 12%.
43.	The terms of the Asset Sale Agreement are very clear and the Defendants and the Plaintiff were aware and understood the context of the Agreement. Therefore, the Defendant has no valid defence in this matter.   
44.	The 1st Defendant maintains the stand that full settlement was to be finalized when all the assets which the Plaintiff has sold pursuant to the Asset Sale Agreement was fully delivered  to the 1st Defendant in road worthy condition and transferrable in terms of the requirements of the Land Transport Authority. The balance payment of $48, 750.00 was to be paid as per the prescribed date upon a proper completion of the settlement by the Plaintiff and the Plaintiff’s failure has led to the current proceedings before this Court.
45.	This alleged non-compliance of the Agreement has further prompted the Defendants to file and serve a Counter-Claim and seek substantial amount of Damages and Judgment accordingly.
46.	The Court in having to decide whether the Defendant’s Defence is a meritorious one or not, then the Court has to consider at all the circumstances of this case in its entirety (per Brown L.J, Blaiberg v Abrams, 77 L.T.J 55 C.A.)
47.	In this case, I find that the Defendants do not deny the fact that in terms of the Asset Sale Agreement a balance sum of $48,750 remains unpaid, the sum claimed by the Plaintiff for which summary judgment is sought herein. However, they are of the contention that the Plaintiff has failed to deliver all the Assets to the Defendants in terms of the Agreement in time and therefore the balance amount is being held up by them. 
48.	The Defendants have raised both legal and triable issues together with some questions of dispute as discussed hereinabove. Further, the Defendants are alleging breach of contract on the part of the Plaintiff in not finalizing the settlement in terms of the asset Sale Agreement. Therefore, these triable issues and questions in dispute cannot simply be dealt with in a summary manner rather ought to be tried in a proper trial. The matter can then be determined in a just and fair manner where both parties to the proceedings will be able to give evidence, tender documentary evidence to support their respective cases and examine the witnesses to test out the evidence before the Court. 

49.	The Plaintiff’s application in this particular case is related to summary judgment under Order 14 of the High Court Rules, 1988. Reference is made  to the following Notes to Or.14 or 5 in the Supreme Court Annual Practice 1958 p263 which is very much appropriate and ought to be taken into consideration:
“The power to give summary judgment under Order 14 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). 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 (Ward v Plumbley,         (6 T.L.R. 198). 
50.	Taking into consideration all above and in exercise of this Court’s discretion whilst applying the appropriate applicable principles to the nature of the Plaintiff’s application, the Defendants have shown grounds that they have a fair case for defence and therefore ought to be allowed to defend this action at a full hearing accordingly. The Defendants have the basis to resist summary judgment in the current application.

51.	Further, bearing in mind the manner in which the matter before this Court has been conducted and the rational for bringing in proceeding by way of a summary judgment interlocutory application, the Defendants are entitled to reasonable costs accordingly which is summarily assessed at $650.

52.	In conclusion,  I make the following orders:

ORDERS 

(i)	The Plaintiffs’ application seeking an order for summary judgment is hereby refused and accordingly dismissed.

(ii)	Costs against the Plaintiff is summarily assessed at $650 and to be paid within 14 days.

(iii)	Substantive matter to take its normal cause of action.

(iv)	Orders accordingly.

Dated at Suva this    27th Day of February, 2018

					
………………..…………………………………….
							MR VISHWA DATT SHARMA
				         Master of High Court, Suva

cc:  Haniff  Tuitoga, Suva
       Amrit Chand Lawyers, Suva