Leave to defend in summary suits fails where the defence is sham, illusory and unsupported by the commercial record.
In a summary suit, leave to defend is available only where the defendant shows a triable issue or a fair, bona fide defence. Applying that settled test, the court treated the defendant's plea of full cash repayment without receipts as unsupported and inconsistent with the written commercial record, including acknowledgments, promissory note, account confirmations and post-dated cheques. The defence was therefore characterised as sham, illusory and moonshine, and the leave to defend application was rejected. The plaintiff was consequently entitled to proceed to decree with interest and costs.
Issues: (i) Whether the defendant had disclosed a triable issue or a fair and bona fide defence entitling him to leave to defend in the summary suit; (ii) Whether the defence raised was sham, illusory or moonshine so as to justify rejection of the leave to defend application.
Issue (i): Whether the defendant had disclosed a triable issue or a fair and bona fide defence entitling him to leave to defend in the summary suit.
Analysis: The dispute arose in a commercial transaction in which the defendant had admittedly purchased goods on credit and had executed acknowledgments and post-dated cheques. The court applied the settled principles governing leave to defend in a summary suit, namely that unconditional leave is available only where the defendant shows a good defence or at least a fair, bona fide or reasonable defence raising a triable issue. On the material placed, the defendant's plea that the entire liability had been discharged in cash without receipts was found unsupported by any credible foundation in the face of the written agreements, promissory note and account confirmations.
Conclusion: The defendant did not disclose any triable issue or bona fide defence.
Issue (ii): Whether the defence raised was sham, illusory or moonshine so as to justify rejection of the leave to defend application.
Analysis: The court found the defence to be inconsistent with the admitted commercial documents and the repeated acknowledgments of liability. The assertion of full cash payment without receipts was treated as inherently improbable and unsupported, while the documentary record showed an agreed rate of interest and continuing liability. In these circumstances, the defence was characterised as frivolous and not worthy of trial, attracting the category of sham or moonshine defence under the summary suit framework.
Conclusion: The defence was sham, illusory and moonshine, warranting rejection of leave to defend.
Final Conclusion: The summary suit was maintainable and the defendant was not entitled to defend the claim unconditionally; the plaintiff succeeded on the summary procedure and was entitled to decree with interest and costs.
Ratio Decidendi: In a summary suit, leave to defend must be refused where the defendant fails to disclose a triable issue or a bona fide defence and the defence is found to be sham, illusory or moonshine on the basis of the written commercial record.
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