Dee Cee's Bus Services Ltd v Credit Corporation (Fiji) Ltd [2004] FJHC 315; HBC0480.2000s (3 October 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 480 OF 2000

Between:

DEE CEE’S BUS SERVICES LIMITED
Plaintiff

and

CREDIT CORPORATION (FIJI) LIMITED
Defendant

Mr. D. Sharma for the Plaintiff
Mr. N. Arjun for the Defendant

DECISION

This is a summons filed by Credit Corporation (Fiji) Limited (the “defendant”) seeking orders as follows:-

1. That paragraphs 1 and 2 of the Reply to Defence and Defence to Counterclaim may be amended or struck out as tending to embarrass fair trial of this action and that it is irregular as it does not comply within the rules of Order 18 of the High Court Rules.
   
2. That further and better particulars be given for paragraphs 9 and 10 of the aforesaid Reply to Defence.
   
3. That the Defendant be given an extension of time in which to file a response until satisfactory pleadings have been provided.
   
4. Alternatively, the Plaintiff do have 7 days’ further time in which to serve their reply after such amendment.
   

An Affidavit in support sworn 30 January 2002 was filed stating, inter alia, that the plaintiff either amend or alternatively pleadings be struck out particularly paragraphs 1 and 2 of the plaintiff’s Reply to Defence and Defence to Counterclaim. The defendant also asks that the plaintiff replead paragraphs 1, 2, 9 and 10 of the said document and supply further and better particulars of the said paragraphs 9 and 10.

The said paragraphs 1 and 2 read as follows:-

1. “The Plaintiff takes issue with paragraph 4 of the Defence and objects to the usage of a “standard form contract” when the Plaintiff is supposed to have specific individual contracts which are in the Defendant’s possession or custody. Furthermore, the Plaintiff has at no stage given any notice in writing that it wanted to terminate the hiring agreement with the intention of purchasing the goods. The Rule espoused by the Defendant only pertains to the situation covered under paragraph 10(i) and not the rewriting of the Plaintiff’s contract.”
   
2. The Plaintiff takes issue with paragraph 5 of the Defence.
   

Paragraphs 9 and 10 read:

9. “IN response to paragraph 22 of the Defence, the Plaintiff has overpaid the Defendant so there is now no question of “rewriting” arrears.
   
10. IN response to paragraph 23 of the Defence the Plaintiff only admits that a Repossession Notice was issued. The Plaintiff says that the Repossession Notice was unlawful”.
    

Consideration of the application

It is the defendant’s submission that:

“one of the important issues in this case, and perhaps the central issue in the whole case, concerns the terms on which the Plaintiff is entitled to payout asset hire contracts in respect of its buses and replace those contracts with extended asset hire contracts on more favourable terms”

Further, the defendant submits that:

7. “it is not clear from the Plaintiff’s response, as quoted above,whether the Plaintiff is admitting or denying that the contracts between the Plaintiff and the Defendant were in a standard form, a contention which the Plaintiff, itself, pleaded in the Statement of Claim, to start with. Also whether it admits or denies that the Defendant used “Rule of 78” in calculation of the payout figure in the course of refinancing.”
   

The plaintiff repleaded paragraphs 1, 2, 9 & 10 by filing an Amended Reply to Defence and Counterclaim on 21 February 2002.

The Defendant says that neither paragraph 9, particulars of overpaying are stated nor in paragraph 10, particulars of the respect in which the repossession notice is alleged to be unlawful are stated.

It is the defendant’s contention that the plaintiff has not still provided particulars of the overpayment, as alleged by it, and particulars as to why they allege that repossession notice was unlawful. It says that a general denial is not sufficient traverse of the paragraphs.

The defendant further submits that the defects have not been cured by the filing of the Amended Reply to Defence and Counterclaim and the pleading remains “embarrassing” for the following reasons:

(a) “The pleadings do not clearly specify the nature of the case on which the Plaintiff intends to rely.

(b) The Defendant cannot prepare for trial until and unless the Plaintiff clearly states whether it admits or denies that the contracts between the Plaintiff and Defendant were common form contracts and usage of Rule of 78 is a standard clause in the common form contract.

(c) That until (b) is clarified a fair trial of the action would be delayed or prevented and the time of the Court would be wasted.”

It further submits that:

(a) “If, the Plaintiff contends that a clause different from the one the Defendant quoted was used by the parties in their common form contracts than the Plaintiff should say so and quote it.

(b) The pleadings should also briefly state what the Plaintiff contends is the effect of the clause, and how it differs from the “Rule of 78”.

(c) If, on the other hand, the plaintiff agrees that the clause the Defendant has quoted is in fact the one that appears in the common form contracts that fact should be admitted. The trial of the action and the preparation for that trial will concern the proper meaning to be given to those words.”

In the light of the affidavit evidence before me and considering the submissions of counsel I consider that there is merit in the defendant’s application.

The pleadings in any civil case ought to be such that the parties to an action are able to answer to the pleadings clearly and concisely.

The defendant has raised some pertinent issues and I am inclined to agree with Mr. Arjun in his above submissions to enable him to prepare for trial.

Counsel should be aware that after pleadings are closed there must be a Pre-trial Conference at which, inter alia, issues are stated for Court’s determination as well as stating what facts are admitted. Therefore, unless the pleadings are properly framed and the Court is in a position to see clearly what the issues are there will be difficulties in setting the case down for trial.

For these reasons the Counsel for the plaintiff should reconsider the matters raised by the defendant’s counsel and attend to the matters which are creating difficulties to the defendant in preparing for the trial.

I therefore grant the relief sought in items 1 and 2 of the defendant’s said summons and it is so ordered within 14 days with costs in the cause.

D. Pathik
Judge

At Suva
10 March 2004