TMS Global Services Ltd v Hole [2010] CKHC 47; PLT29.2009 (6 May 2010)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)

PLT NO. 29/2009

BETWEEN

TMS GLOBAL SERVICES PTY LIMITED of Unit 604, 370 St Kilda Road, Melbourne, Victoria, Australia
Plaintiff

AND

TONY HOLE of Rarotonga, Cook Islands
Defendant

Mr Gibson for Plaintiff
No appearance for Defendant (Consent filed)

INTERLOCUTORY JUDGMENT OF WILLIAMS CJ

Thursday the 6th day of May 2010

[1] This morning Mr Gibson appeared in support of an application for an order that the Defendant file a fuller and more explicit statement of defence.

[2] On 5 May 2010 the Defendant filed a consent to the application. The application is granted. However, to avoid any further problems, I make the observations which follow.

[3] I have examined the statement of defence. It is completely unacceptable and evasive and does not qualify as a statement of defence within the Rules. A proper statement of defence should have the following features:

[a] The statement of defence must either admit or deny the allegations of fact in the statement of claim, but a defendant does not have to plead to an allegation that does not affect that defendant;

[b] A denial of an allegation of fact in the statement of claim must not be evasive. Points must be answered in substance. If, for example, it is alleged that the defendant received a sum of money, it is not sufficient to deny receipt of the particular amount. Rather, the defendant must deny receipt of that sum or any part of it, or set out how much was received. When a matter is alleged with circumstances it is not sufficient to deny it as alleged with those circumstances. In all cases a fair and substantial answer must be given;

[c] An allegation not denied is treated as being admitted;

[d] An affirmative defence must be pleaded;

[e] The statement of defence must give particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances sufficient to inform the Court, the Plaintiff, and any other parties of the Defendant's defence.

[4] The record of the hearing before Hugh Williams J last year seemed to indicate that the Defendant wished to argue that the Tatslotto business in question was an illegal enterprise because it did not possess a licence under the relevant Development Act legislation. If so, that would be an affirmative defence which requires explicit pleading.

[5] The following other matters need attention:

[a] As to paragraph 2, the Defendant is required by the Court to state whether it is alleged that T & H Enterprises Ltd carried on business under the name of Tatslotto;

[b] As to paragraph 4, I direct in this particular case that the Defendant indicate whether the Defendant or T & H Enterprises Ltd had any dealings with the Plaintiff;

[c] As to paragraph 5, I require the Defendant to state whether he alleges the Plaintiff supplied T & H Enterprises Ltd with the lottery products;

[d] As to paragraph 6, the Defendant must plead whether demand was made on T & H Enterprises Ltd if demand was not made on the Defendant;

[e] In addition, if it is indicated that some sum of money is owing by either the Defendant or T & H Enterprises Ltd other than the amount of $NZ105,920.32 the lesser amount should be stated.

[6] The defence, must in addition to the foregoing matters, strictly comply with the requirements set out in paragraph [3] [a] – [e] above.

[7] Mr Gibson applied for costs. His client is fully entitled to costs. His client should never have been put to the trouble of coming back to the Court to get an order forcing the filing of a proper statement of defence. Defendant ordered to pay costs of $125.00 to the Plaintiff within 21 days from the date of service of this Judgment.

[8] I understand that Mr Brian Mason is acting as McKenzie Friend and continues to do so. The Court appreciates his willingness to undertake this role. However, since this McKenzie Friend is an experienced and competent lawyer, he is expected to advise the Defendant at all times of the Defendant's obligations under the Rules. The Court trusts that Mr Mason will carry out such duties as a McKenzie Friend in the future.

David Williams CJ

May 6 2010

Editorial Note: Derived from the Court’s electronic records and believed to be correct and final.