Singh v Singh [2004] FJHC 447; HBC0381.2000L (13 August 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0381 of 2000L

BETWEEN:

SANT SINGH
RANJIT SINGH
Plaintiffs

AND:

GYAN SINGH
Defendant

Counsel: Mr. K. Qoro for the plaintiffs
Mr. A. Patel for the defendant

Date of Hearing: 8 June 2004
Date of Ruling: 13 August 2004

RULING

This matter comes before the court by way of Originating Summons wherein the plaintiffs, as beneficiaries of their father’s estate seek various orders against the administrator of that estate including an order for the removal and replacement of the defendant as trustee of the estate.

The plaintiffs make assertions as to the distribution of the estate. There is conflict in the evidence of the parties.

It is not possible to determine the truth of the competing allegations on the affidavits filed by the parties.

Order 5 of the High Court Rules enables proceedings of this type to be commenced by Originating Summons but such proceedings may also be commenced by way of writ.

Claims of a contentious nature by beneficiaries against trustees, charging breach of trust or default in performance of their duties should normally be commenced by writ – Re Sir Lindsey Parkinson & Co. Ltd’s Trusts Deed. Bishop & Ors v Smith & Anor 1965 1 All E.R. 609.

To enable the matter to proceed, the Originating Summons is deemed a Writ of Summons and the plaintiff is to file and serve a statement of claim within 28 days.

JOHN CONNORS
JUDGE

AT LAUTOKA
13 AUGUST 2004