IN THE MAGISTRATE'S COURT
AT SUVA
IN THE CENTRAL DIVISION
REPUBLIC OF FIJI ISLANDS
CIVIL JURISDICTION

Civil Action No: 116 of 2012

Kenneth Richard Brown
Plaintiff

v

Resina Nafrue Merutu Katafono
Defendant

For Plaintiff : Mr. Gavin O'Driscoll
For Defendant : Ms. Laurel Vaurasi.

Judgment

Introduction

In this matter the Plaintiff had filed a Writ of Summons seeking judgment in the sum of $22,533.07, costs on a solicitor/client indemnity basis and such other orders as this Court deems necessary (all to be within the jurisdiction of the Court). The Plaintiff and the Defendant were previously married and during the marriage the Plaintiff claimed that he had loaned the sum he is now claiming to the Defendant for her education (tuition fees for Masters Programme). 

The Defendants position is that the Plaintiff had gifted the money to her during the marriage to assist pay for her tuition fees while she was studying. 

This Court has noted that matters were also before the Family Court and this issue was not dealt with there. The issue of Res-Judicata was pursued by the Defendants in this Court and this Court ruled that this matter had not been adjudicated upon and no determination was made. 

Pleadings Filed and the Evidence in Court

The Plaintiff filed a Writ and the Defendant filed a Statement of Defence. The Plaintiff also filed a reply to the Statement of Defence.

The Plaintiff and the Defendant gave evidence in Court.

Analysis

The Plaintiff and the Defendant were married on or about 14th December 2005. The Defendant enrolled at the Australian National University (ANU) as a Masters Degree Programme Student to study for the period February 2006 to December 2007. 

Following the completion of her studies the Defendant returned from Australia she and the Plaintiff separated sometime soon after that. 

The position of the Plaintiff is that the money sent to the Defendant was a loan to her which she is to re-pay. The Defendant had asked the Plaintiff to seek FNPF assistance, but according to the Plaintiff he did not qualify for the FNPF Assistance. This Court notes that in cross-examination the Plaintiff stated "when I gave it to the Defendant did not tell Defendant it was a loan. No understanding that Defendant will pay me. Did not discuss with Defendant about interest. Loan was not mine was hers. Discussed when she came back. We talked on the phone. We had talked about it. Not a loan from me to her – "correct". We were married when given to her. She asked me to find money for her." In re-examination he stated "to my knowledge Defendant did not ask anyone else for the money. I am not forgoing the debt."

The Defendant stated in Court "I contacted the Plaintiff that would need money to pay fees… he sent me $14,000 Aud… we did not discuss too much where money came from…only came to know of borrowing from Cherly. We had separate accounts… when I returned he did not ask for money. I asked for re-payments… he did not say loan from him to me… After I filed divorce he asked for money. Did not agree to interest or installments." In cross-examination she stated "… did not ask Plaintiff the source of funds. Assumed funds from commercial bank… he did not ask money be paid back… knew it was loan of Plaintiff from his sister. Not a loan between me and him until filed in Court. Knew no loan between Plaintiff and sister. Commercial bank loan which I will repay. Not loan from him to me… he has been asking me to pay… he never said not to re-pay. He said donot care. I assumed he did not want it back." 

From the evidence before it this Court finds that there is no dispute that the sum claimed was expended in the Defendants education. The money was sent to the Defendant in Australia. One of the foremost issues before this Court is whether it was a loan or a gift? If it was a loan the Defendant will need to repay the Plaintiff. If it was a gift, the Plaintiff cannot seek re-imbursements for the money (gift) given to the Defendant in this civil proceedings. 

Loan or gift?
The money according to the Plaintiff was sourced from his sister and brother-in-law. The monies were sent to the Defendant in Australia. The reasons advanced by the Plaintiff for not securing the loan from FNPF were that he was not eligible for the sum required. Similarly his explanation for not sourcing the funds from a commercial bank was that he did not qualify for a loan. The Defendant told the Court that they did not discuss much where the money she received came from. However, she had asked the Plaintiff to check with FNPF.

The Defendant in this case had asked the Plaintiff for monies but according to her she did not ask him the source of the funds. She assumed the funds came from a commercial bank. In any event based on her assumption if the funds were sourced from a commercial bank it would have been a loan to the Plaintiff. The Plaintiff would have repaid the bank. Similarly, the money taken from the Plaintiff's sister and brother-in-law was a loan to be repaid to them. The Plaintiff took the loan for the Defendants education. 

This Court finds that the money was sought upon the request of the Defendant. The money was sourced for the Defendant (for her educational needs) at her request. The Defendant agreed in Court that if the loan was from a commercial bank she would repay. Since it was from Plaintiff's sister she would not repay. She has problems with the money being taken as a loan from The Plaintiff's Sister and brother-in-law. As the money was sourced from the she takes it as a dealing between the Plaintiff and them. This is correct. However, she should understand that her then husband took the loan which would be re-paid to the lenders. He did not take the loan and gift it to her. He took the loan which was to be repaid by them. After completing the studies she is walking away from the repayment of the loan. She is liable for the repayment of the loan which was for her use and benefit. The Plaintiff had facilitated the loan for her. 

This Court also noted that from the evidence in Court that both maintained separate accounts. The Defendant told the Court that the Plaintiff never said not to repay. She assumed he did not want it back. This Court notes that at the time of the arrangement for the money for the Defendant, the Plaintiff and the Defendant were married and in good terms. Both of them would be responsible for any monies that would be sourced from a Bank or from any individual for their use. In this case the Defendant had requested additional monies which she requested the Plaintiff to arrange, the Plaintiff did so. He did so for the use and benefit solely for the Defendant. The Defendant cannot later on say that she will not be responsible for the monies if it was a loan from the Plaintiff's sister as opposed to, if it came from a commercial bank. 

From the evidence before it this Court finds that the monies given to the Defendant was a loan which she is responsible to re-pay. From the evidence in Court the Court finds that the Defendant knew it was expected of her to re-pay the loan that was sourced for her. This Court further finds that money given to the Defendant by the Plaintiff was not a gift to the Defendant. The money was given to her to pay for her educational expenses (tuition, etc) and she was responsible upon her return to repay the same. The Plaintiff facilitated her request for funds and is entitled to recover the monies he sent to the Defendant upon her failure to repay the same.

This Court for the above-mentioned reasons orders as follows:

(a)	Defendant to pay Plaintiff the sum of $22, 533-07.
(b)	Costs of $500.00 to be paid by the Defendant.

Chaitanya Lakshman
Resident Magistrate
14th February 2014