Basic Industries Ltd v Ali [2005] FJHC 299; HBC0057.2005 (22 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0057 OF 2005

BETWEEN

BASIC INDUSTRIES LIMITED
a limited liability company having its registered office at
Ra Marama House, Gordon Street, Suva, Fiji.
PLAINTIFF

AND:

JAFAR ALI
(father’s name Abdul Gafar Ali)
of Lot 3, Imambi Subdivision, Martintar, Nadi, Businessman
trading as JEFF BUILDING CONSTRUCTION AND CIVIL WORK
DEFENDANT

FUEL PLUS PTY LTD
a limited liability company having its local registered office at
HLB Crosbie & Associates, 1st Floor, Hira Lal Building, Main Street, Nadi.
THIRD PARTY

Messrs Gordon & Co for the Third Party
Messrs Babu Singh & Associates for the Defendant (City Agents S B Patel & Co)

Date of Hearing: 11 November 2005
Date of Ruling: 22 November 2005

INTERLOCUTORY RULING OF FINNIGAN J

The Third Party herein has applied for an Order to set aside the Third Party notice. The Defendant was granted leave on 29 June 2005 to issue the third party notice. It was duly issued and served and the third party filed an Acknowledgement of Service and a Notice of Intention to defend on 22 August 2005.

The High Court Rules Order 16 Rule 4 provide that the Defendant who issued the third party notice must thereupon within 7 days apply to the Court by Summons for directions. The Defendant has never done so. The third party in entitled to be dismissed from the action.

Excellent submissions were filed by Counsel for the Defendant and with them copies of all authorities upon which he relies. This is appreciated. The solicitors for the Defendant have filed an affidavit by the Defendant and Counsel made oral submissions at the hearing.

Mr D. Gordon, Counsel for the third party is entirely right in all his submissions except that relating to the Defendant’s affidavit. In an application of this sort where the Court exercises its discretion to maintain an action or to dismiss it then it must have before it a clear statement of what the party under threat would do if allowed to maintain its standing in the action. In this case the Defendant has shown the nature and some detail of the claim which it would make against the third party.

I conclude (as Mr Gordon conceded I might) that it would be unjust to strike the third party from the action for failure to comply with the High Court rules. This is a case for application of Order 2 and the third party’s application to be dismissed from the action is refused. It will nonetheless be paid costs by the Defendant on this interlocutory application.

The Defendant must now file and serve its summons for directions within 7 days of this ruling. It must pay costs to the third party which I summarily assess at $500.00. These costs must be paid before the defendant will be permitted a hearing on his third party claim.

This is yet another interlocutory distraction forced upon the Court by dilatory legal practice. There are a large number of substantial actions awaiting trial and interlocutory matters that arise in this way are unwelcome.

D.D. Finnigan
JUDGE

At Lautoka
22 November 2005