Lawlor v National Bank of Fiji [2000] FJHC 33; Hbc0337d.96s (28 February 2000)

Fiji Islands - Lawlor v National Bank of Fiji - Pacific Law Materials

IN THE HIGH COURT OF FIJI

(AT SUVA)

CIVIL ACTION NO. HBC 337 OF 1996S

Between:

DECIMA JOYCE LAWLOan>

and

GREGORY ROBERT LAWLOR

Plaintiffs

and

NATIONAL BANK OF FIJI

Defendant

J. Howard for the Plaintiff

W. Clarke for the Defendant

DECISION

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The Plaintiffs are trustees of the Estate of Mrs. E.H.M. Lawlor deceased. The writ was issued on 12 July 1996 and the Statement of Claim was filed on 26 November 1996.

The Plaintiffs say that Mrs. Lawlor deposited the sum of $320,000 with Burns Philp Trustee n about 1984. It is said thid that Burns Philp Trustee Co. then advanced Mrs. Lawlor’s funds to a group of companies known as the Stinson-Pearce Group.

Some time later the Stinson-Pearce Group experienced financial difficulties and the eventual outcome of these, so far as material to the action, was that the Defendant was granted a mortgage over the only substantial asset of the Stinson-Pearce Group namely lands at Soqulu.

In due course the Defendant exercised its mortgagee’s powers of sale and the lands were The Plaintiffs say that that the consequence of the exercise of the power of sale by the Defendant was that Mrs. Lawlor lost the funds which had been deposited on her behalf with the Stinson-Pearce Group. The Plaintiffs’ case is that by acting in the way it did the Defendant breached a duty of care and a fiduciary duty which it owed to Mrs. Lawlor. There is also an allegation of fraud against the Defendant. Mr. Howard told me that the value of the Plaintiffs’ claim amounted to between approximately $900,000 and $1.8 million depending on the calculation of interest.

On 16 December 1996 a Defence was filed. The Defendant denied that itacted improperly, asserted rted that the proper defendant was not itself but Burns Philp Trustee Co and suggested that Mrs. Lawlor had volunteered herself as an unsecured creditor and that the Plaintiffs’ were guilty of contributory negligence.

The Summons frections was heard on 19 February 1997 and the Defendant was given 21 days to file its list list of documents following the 21 days given to the Plaintiff to file its own list. The Plaintiff’s list was filed on 6 May 1997 and a supplementary list followed on 10 May 1997.

By 4 July 1997 the Defendant had still not filed its list of documents and accordingly the Plaintiff issued a summons pursuant to O 24 seeking a 7 day unless order striking out the Defence for failure to comply with the order of 19 February 1997.

On 4 July 1997 an order in terms of the summons, substituting only the figure 14 for the figure 7 was made by consent.

p class=MsoBodyText Text style="margin-top: 1; margin-bottom: 1"> On 24 Ju97 the Defendant filed an “interim list of documents”. How the interim nature of this list list could be reconciled with the statement contained in paragraph 5 of the list was not explained.

On 3 December 1997 both the Plaintiff and the Defendant jointly appfor an order that the Fiji Fiji Police Force produce documents in their possession relating to the action. This application was presumably made under the provision of O 24 r 7A of the English Supreme Court Rules applied by Section 18 of the High Court Act (Cap. 13). The affidavit in support of the application stated that the Police had 1,500 relevant documents on their files. An order in terms was made by the Deputy Registrar on 10 December 1997.

On 13 November 1998 a second summons seeking further discovery e Defendant was filed, this time relating to the documents ents obtained from the Fiji Police Force. The Plaintiffs sought a 7 day unless order striking out the Defence.

On 29 January 1999 the Defendant filed a second list of documents apparently intended toace the “interim” list file filed out on 24 July.

On 4 February 1999 I heard argument on the 13 November 1998 summons. Mr. Clarke me that the Defendant did ndid not object in principle to discovery of the documents sought but that since some 10,000 documents were involved there had simply not been time examine them all in order to establish their relevance and admissibility. After discussion the 7 day period was extended by consent to 28 days and the application was adjourned to 4 March 1999.

On 3 March the Deft filed a third list of 33 documents. On 4 March Mr. Clarke told me that about 300 to 400 m400 more documents had just been received from the Fiji Police. By consent the summons was again adjourned to 27 April.

On 27 April the summons was adjourned by consen again to 24 May. On 24 May a fourth list of documents was was produced by the Defendant, this time being handed up to the Court from the Bar table. This brought the total number of documents disclosed by the Defendant to 557. Mr. Howard and Mr. Clarke told me that they had agreed to an order being made in the terms of the summons dated 13 November 1998 subject only to the figure 28 being substituted for the figure 14 appearing in paragraph 5. Paragraph (i) of the summons requires the Defendant to provide the Plaintiff with an affidavit verifying the supplementary list (the fourth list).

On 24 June the Plaintiffs searched for the verg affidavit without success. On the same day Judgment in dein default of compliance with the Order of 24 May was entered, the principal complaint being that the verifying affidavit, which should have been filed by no later than 28 days after 24 May had still not been filed.

On 29 June the Plaintiffs issued a summons seeking a hearing date for assessment of damages. On the return date, 18 August, I fixed 17 and 18 February 00 for the hearing although Mr. Clarke indicated that he would be moving to set aside the Judgment entered on 24 May. He told me that he had that morning provided Mr. Howard with the consolidated list of documents.

On tember 1999 three documents were filed by the Defendant: a consolidated list of documents ants and two affidavits verifying the supplementary list and further supplementary list of documents.

On 15 December the Defendants filed a Notice of Motion seeking to the Judgment of 24 May “revoked”. The application was supp supported by an affidavit by Mohammed Khan, the Defendant’s Solicitors Managing Clerk. An affidavit in answer was filed by the second Plaintiff.

There is really no dispute as to the facts. Mr. Howarmits that the Defendant has been guilty of contumelious behs behaviour by its failure to comply with the unless order of 24 May in that it failed to file the required verifying affidavit and failed to provide the executed copy of the Pre-Trial Conference minutes as was required by paragraph (v) of the Order. Relying principally on Samuels v. Linzi Dresses [1981] QB 115 he invited me to strike out the application to set aside or revoke the Judgment. He pointed out that, apart from anything else, the defendant had waited for over 6 months before asking to set aside the Judgment thus further contributing to the intolerable delays for which it had been responsible throughout the course of the litigation.

Mr. Clarke was characteristically frank and brief inort of his motion. He accepted that his firm had blundered ered in not providing the affidavit on time but pointed out that it was provided on 21 December. As to the minutes of the Pre-Trial Conference these had not been provided because the Judgment in Default had been entered. He suggested that the Defendant had a good arguable case and that it should not be deprived of the opportunity to present that case at trial merely because of fault by its legal advisers.

As already seen, this is an action involving aable sum of money. It is not, on the face of the pleadings,ings, an easy case. There are allegations of negligence, fraud and breach of fiduciary duty. Mrs. Lawlor has died, Burns Philp Trustee Co. no longer exist, the National Bank of Fiji has been sold and so far as I am aware the Stinson Pearce Group has also ceased to function. There have been criminal investigations involving the Bank and many thousands of documents were seized by the Fiji Police Force and have had to be obtained from them. Both parties recognised the difficulty in obtaining documents and instructions when previous time limits were extended by consent.

Although Mward was quite correct to stress that the breach of an unless order is a serious matter ther the Court undoubtedly has power to extend the time (see Samuels (supra). With respect to Mr. Clarke it is not good enough to blunder in this way, serious litigation should be treated seriously and Court Orders once made are there to be obeyed. On the other, this is clearly not a case where a Defendant who has a palpably unarguable case has deliberately disobey an express and peremptory order. Rather, as I see it, it is a case of legal advisors being overwhelmed by the extent of the litigation in which they are involved and overlooking an order of the Court. Mr. Howard suggested that without the affidavit the list of documents in fact now finally produced by the Defendant was valueless. I do not agree.

In all the circumstances of this case I am satisfied that I should extend the time for iance with my order of 24 M 24 May to midday 3 March 00. The only document yet to be delivered are the minutes of the Pre Trial Conference. I should make it clear that 3 March 00 is the final deadline.

The application is allowed but the Plaintiffs are to hav costs of the application which I assess at $700, to be paie paid by midday 3 March 00.

M.D. Scotan>

Judge

28 February 00

HBC0337D.96S