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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC0312 OF 2002
Between:
VIVRASS DEVELOPMENT LIMITED
Plaintiff
and
THE FIJI NATIONAL PROVIDENT FUND BOARD
Defendant
Mr. H. Nagin for the Plaintiff
Mr. G. P. Lala for the Defendant
DECISION
The plaintiff Vivrass Development Limited (VDL) filed a Writ of Summons on 22 July 2002 against the defendant The Fiji National Provident Fund (FNPF) seeking orders: (a) restraining the defendant from proceeding further with the mortgagee sale of the plaintiff’s property comprised in C.T. 24128; (b) a declaration that Demand under Mortgage issued by the Defendant against the Plaintiff is bad in law and (c) to (f) damages in respect of the purported sale of the property at under value, exemplary damages, punitive damages and costs.
The Motion
After acknowledging service of the writ the defendant filed a Notice of Motion (as amended) seeking the following orders pursuant to Or18 r18(1)(d) of the High Court Rules:
same issue which are subject matter of this Writ of Summons and Judgment in this matter was given by Honourable Mr. Justice Pathik and Injunction was refused. The first Injunction was granted on the 21st of June 2001.
(b) That there was consent order made under the ‘terms of settlement’ in Civil Action No. 277 of 2001, and Plaintiff breached the condition of the consent order and asked for another Injunction and the said application was refused by the Honourable Mr. Justice Pathik and Judgment was given on the 20th of June 2002.
I have before me for my consideration the affidavit of Olota Tulumani Rokovunisei, the General Manager of the National Provident Fund in support of the motion. I also have the affidavit in reply of Asish Kumar Narayan the Property Manager of the plaintiff company. As ordered both counsel filed written submissions.
At the time of writing this Decision, Notice of Discontinuance of Appeal to Court of Appeal in 277/01 was filed by the plaintiff on 3 February 2003.
Defendant’s/Applicant’s submission
The defendant is merely pursuing this application pursuant to Order 18 rule 18(1)(d), namely, abuse of process.
It is the defendant’s case that the claim for injunctive relief has already been litigated to conclusion and the plaintiff cannot resurrect it either in the same or in some other form. Its other grounds, namely, that the notice of demand is bad in law and for damages for sale of mortgage property at alleged under value have both been compromised by a prior Terms of Settlement between the parties and those causes cannot now be subject of new proceedings.
The defendant therefore submits, that this action of the plaintiff is an abuse of the process of the Court and ought to be struck out.
Plaintiff’s submission
In his affidavit in reply, the said Narayan submits, inter alia, that the said action No. 277/01 was based on entirely different grounds than the present action. He says that the ‘present action is based on facts subsequent to the facts based in C.A. No. 277/01’.
He further states that the Order as sealed under the Terms of Settlement ‘is not in accordance with the Terms of Settlement and omits certain important parts. The Order will need to be corrected.”
Consideration of the application
As ordered, useful written submissions were filed by counsel and I have given these due consideration.
In his submission Mr. Nagin outlined in detail the background facts surrounding the said action No. 277/01 and the Orders made thereunder including the dissolution of two injunctions and finally the making of a Consent Order under the Terms of Settlement filed in that action. Then in paragraph 1.09 of his submission Mr. Nagin gives his reasons for instituting the present proceedings (C.A. No. 312/02), inter alia, as follows:
The Plaintiff filed the Writ in this action on 22nd July, 2002. Unlike Civil Action No. 277 of 2001 apart from the Plaintiff and the Defendant there are no additional parties to this action. The Plaintiff’s claim in this case essentially is one of breach of duty as a Mortgagee and the negligence on the part of the Defendant for accepting a tender of $3.3M when this was well below the market price and valuation for Vivrass Shopping Plaza. The particulars of breach of duty and negligence are set out in paragraph 10 of the Statement of Claim. There is no interlocutory application filed by the Plaintiff in this case. If the Plaintiff had filed another interlocutory application for injunction then the Defendant may well have argued that it was an abuse of process. However, the Plaintiff’s substantive rights have been reserved in the Terms of Settlement entered into and filed in Court in Civil Action No. 227 of 2001S. Also this action is based on events subsequent to the High Court Action No. 277 of 2001S. This action arises out of the purported acceptance of tender of $3.3M. Almost immediately after this action was filed the Defendant, instead of filing a Statement of Defence, has filed a Notice of Motion on 24th of July, 2002 seeking to strike out the Plaintiff’s claim on the ground discloses no cause of action.
The affidavit evidence reveals that the reliefs claimed in C.A. 277/01 are the same as the ones in the present action No. 312/02. In 277/01 interim injunction was dissolved by me on 10 August 2001 in favour of the defendant.
Thereafter on 3 December 2001 the defendant accepted an offer of $3.3 million from Challenge Engineering Limited (the “Challenge”) for the sale of the said C.T. 24128 and a formal Agreement for Sale and Purchase was entered into on 10 December 2001. It was after that that the plaintiff without the defendant’s consent as mortgagor accepted an offer from Tai Momo Holdings Limited for $5 million and forwarded an Agreement for Sale and Purchase to the Plaintiff with settlement by 28 February 2002. It was then that the plaintiff on 15 February 2002 applied for a second injunction seeking to restrain the defendant from proceeding with the sale of the property to Challenge. But before the hearing on 4 March 2002 the parties reached a written ‘Terms of Settlement’ signed by them and filed in Court. A formal Order approving the Settlement was made by the Court on 4 March 2002. It is pertinent that I set out the contents of the said Order for a clear understanding of the circumstances under which the issue before the Court is to be considered. The order reads as follows:
mortgage (up to the date of payment) on or before 30th April, 2002.
There was failure on the part of the plaintiff to comply with paragraph I of the Order. The defendant was therefore at liberty to proceed with the sale of the mortgaged property. The Challenge confirmed the Agreement of 10 December 2001 and agreed to settle the purchase by 30 June 2002.
Thereafter on 28 May 2002 the plaintiff made a third application for injunction restraining the defendant from proceeding with the sale but this application was dismissed by the Court on 20 June 2002.
In the present action the plaintiff is seeking injunctive relief the fourth time and also disputing the demand under the mortgage.
The law – consent order and res judicata
The said Order of 4 March 2002 settled the issues between the parties. Neither the question of the amount owing under the mortgage nor the plaintiff’s assertion that the demand under the mortgage was bad in law was left to be determined as the Order determined these issues and the mode of payment under the mortgage was incorporated in the Order. Even the default provision was included therein.
The Order which was sealed was made by consent and it finalised the matters in issue between the parties. The Writ herein is not an action to set aside the said Order but it is a fresh action seeking the same reliefs that were sought previously and a determination had been made thus finalizing the issues in the action (CA 277/01).
The present action is like having four bites at the cherry and this cannot be encouraged just because the first three bites did not result in the plaintiff’s favour.
The parties are entitled to agree upon terms to settle or compromise their disputes and to consent to an order or judgment embodying such terms. This is what the parties did in this case by filing Terms of Settlement and it was made an Order of this Court. Such order will have all the consequences of the court judgment or order although the terms agreed are contractual in character, in form and effect.
The plaintiff and its counsel submit that this present action is ‘based on events subsequent to the High Court Action No. 277/01’. Nowhere in the affidavit and in the written submission of counsel could be found any such subsequent events as alleged. There was one such action on subsequent discovery of fresh facts in Law v Law Vol 12 TLR (1903 –04) 295 which was a case of purchase by one partner of share of another partner and there was alleged false misrepresentation but then there was settlement of action. There was thereafter a subsequent discovery of facts and an action was brought to set aside agreements. Mr. Justice Kekewich in giving judgment of the Court said as follows and I adopt the same statements in the case before me:
The plaintiff was minded to reopen the sale. To do that he knew that by the course he had taken he must not only prove misrepresentation, but must open the whole of the accounts. Therefore, whether he brought his action in one form or another, it was necessary for him to go fully into the accounts and ascertain what his rights were. He brought that action knowing at that time that there had been what he called fraudulent misrepresentations, knowing that there were assets outstanding which had not been taken into account, and knowing that he had not received his full share of the assets. Then with that knowledge, and with the knowledge that he could get full discovery in the action, he chose to take ₤3,500 in settlement of all claims. That was the sum which the plaintiff was prepared to take to put an end to this litigation. In his Lordship’s opinion it was against common sense and common honesty that he should be allowed to turn round and say, “I only accepted that in settlement of my claim in respect of the non-disclosure of certain assets, and I now claim to go into the question of the non-disclosure of other assets.” There must be judgment for the defendants, with costs. (emphasis mine)
On all the facts and circumstances of this case as stated hereabove the plaintiff is estopped from bringing this action.
A similar view was expressed by Sir Samuel Evans P in Stokes v Stokes [1917] p 195 at 199 when he said:
“If a wife makes a complaint of desertion, places her case before the justices, adduces the evidence on which she relies, and asks for their decision, and they decide against her, she cannot afterwards, whatever further evidence she may obtain, issue another summons for the same cause of complaint. (emphasis mine)
In the present case, as I said before, the issues between the parties had already been settled by consent and made an Order of this Court.
Consent judgment or order
The Order herein was a ‘consent order’ and it is binding until set aside. The principles as set out below governing the application of consent orders ought to be borne in mind on the facts of this case. The Supreme Court Practice 1988 Vol. 2 at para 4607 on this aspect states that:
A judgment by consent is binding until set aside, and acts as an estoppel (Kinch v Walcott [1929] A.C. 483; but if an agreement is, by consent, embodied in a Judge’s order, but no judgment is signed, there is no estoppel (Rice v. Reed [1899] UKLawRpKQB 183; [1900] 1 Q.B. 54 see judgment of Vaughan Williams L.J., p.66). Although no order made by consent of parties is appealable without leave, a consent order can be set aside in an action commenced for the purpose on any ground that would invalidate an agreement (Huddersfield B. Co. v Lister [1895] 2 Ch.273, C.A.
A Court has no power to vary a consent judgment or order made previously in that Court and therefore the only means open to a party to set aside a consent judgment or order on the ground of fraud or mistake is to bring a fresh action for that purpose (see de Lasala v. de Lasala [1979] UKPC 10; [1980] A.C. 546; [1972] 2 All E.R. 1146, R.P.C.).
A party cannot arbitrarily get out of a consent order but such an order, even if approved by the Court, may be set aside where it appears that the consent was given under a misapprehension or upon a misrepresentation, however innocent, or from want of materials, provided that the order has not been perfected (Dietz v Lennig Chemicals Ltd. [1969] 1 A.C. 170, H.L.). In Law v Law (1904) 20 T.L.R. 295, an action was brought to set aside an order on the ground that new facts had been discovered.
On Order by consent the following principles of law as stated in Supreme Court Practice (ibid) at para 4608 apply:
An order by consent in an action is not a contract, but it is sufficient evidence of the contract upon which it is based, and such contract is not less a contract and subject to the incidents of a contract because there is superadded the command of a Judge (Wentworth v. Bullen (1840) 9 B. & C. 840; Lievesley v. Gilmore (1866) [1866] UKLawRpCP 83; L.R. 1 C.P. 570; and see Conolan v. Leyland [1884] UKLawRpCh 210; (1884) 27 Ch.D. 632, p.638). The contract is one by which all parties to the order are bound, and is not to be looked upon as a series of separate agreements between the plaintiff and the several defendants (per Eve Worthington etc., Co. v. Abbot (1910) 1 Ch.388). It stands on the same footing as a release, per Cotton L.J, in Goring v. Lloyd (1887) 3 T.L.R. 455, p.456. Where a consent order embodies an agreement which amounts to a contract between the parties, the Court will only interfere with it on the same grounds as it would with any other contract, and therefore where it appears that the order embodies the conclusion of negotiations between the parties, the Court will give effect to it where one party is in breach, and will not vary it, by e.g. giving extra time to perform its terms (Tigner-Roche & Co. v. Spiro (1982) 126 S.J. 525, C.A.). (emphasis mine)
A consent order may be pleaded as an estoppel (vide Kinch v Walcott [1929] A.C. 483.
Res judicata
The learned counsel for the defendant Mr. Lala in his written submission raised the doctrine of ‘issue estoppel’ and ‘res judicata’ and I uphold him in this regard in considering the matter before me.
According to Halsbury Vol. 16 4th Ed. para 1527 the doctrine of res judicata ‘is a fundamental doctrine of all courts that there must be an end to litigation’; it is a ‘branch of the law of estoppel’.
In this case I find that the essentials of res judicata have been fulfilled as Halsbury (ibid) at para 1528 said:
In order that a defence of res judicata may succeed it is necessary to show not only that the cause of action was the same but also that the plaintiff has had an opportunity of recovering, and but for his own fault might have recovered in the first action that which he seeks to recover in the second. A plea of res judicata must show either an actual merger, or that the same point has been actually decided between the same parties.
Here, as I stated hereabove, the issues are the same in both the actions and they have been determined resulting in a Court Order pursuant to the Terms of Settlement filed herein by consent. Therefore, the plea of res judicata should succeed. The order and decision herein are, I agree, sufficiently final and certain to give rise to issue estoppel. No new matter subsequent to order or decision has been raised to allow the plaintiff another attempt to raise the same issue.
On this aspect I conclude with the following extract referred to by defendant’s counsel from the judgment of Tipping J in Joseph Lynch Land Co. Ltd v. Lnych [1955] 1 NZLR 37 at 41 (CA) which I consider pertinent:
“The expression “res judicata” means the matter has been adjudicated. The concept of res judicata is often applied to both cause of action estoppel and issue estoppel. Traditionally its use was confined to the former. Cause of action estoppel is different from issue estoppel which can arise where a plea of res judicata in the strict sense is not open because the causes of action are not the same......Cause of action estoppel is more precise than issue estoppel.....Issue estoppel is concerned with prior resolution of issues rather than causes of action. In the same paragraph of Halsbury as that referred to above, it is said that issue estoppel precludes a party from contending the contrary of any precise point which, having once been distinctly put in issue, has been solemnly and with certainty determined against him. Cross on Evidence (4th NZ ed, 1989) by Mathieson discusses issue estoppel at para 12.8 on p 315. The learned author cites the judgment of Lord Denning MR in Fidelitas Shipping Co Ltd v. V/O Exportchleb [1965] 2 All ER 4, 9:
“.......within one cause of action, there may be several issues raised which are necessary for the determination of the whole case The rule then is that, once an issue has been raised and distinctly determined between the parties, then, as a general rule, neither party can be allowed to fight that issue all over again.”
Conclusion
In the outcome, for the above reasons I find that the institution of this action is an abuse of the process of the Court. I therefore allow the application under Order 18 r.18(1)(d) of the High Court Rules and pursuant thereto order that the action be dismissed with costs to the defendant which I summarily fix at $400.00 (four hundred dollars).
D. Pathik
Judge
At Suva
2 May 2003
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