Matasawa Properties Ltd v National Bank of Fiji [2005] FJHC 360; HBC0111.1998 (14 October 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0111 OF 1998

BETWEEN:

MATASAWA PROPERTIES LIMITED
a limited liability company having its registered office in Lautoka.
FIRST PLAINTIFF

TERENCE REX BUCKLEY and LOUISE ANN PETERSEN
both of Nadi, Fiji, Company Directors.
SECOND PLAINTIFF

AND:

NATIONAL BANK OF FIJI
a body corporate under the provisions of the National Bank of Fiji Act.
FIRST DEFENDANT

WINSTON THOMSON, ESALA DELANA KAMA,
VISANTI MAKARAVA, TAINA UQE, KALIVATI TURAGACA BAKANI, DANIEL ELISHA and FRANCIS CHUNG
all of Suva, Fiji, Directors.
SECOND DEFENDANTS

Solicitors for the Plaintiff: Muaror & Company (City Agents Yash Law)
Solicitors for First Defendant: Mishra Prakash & Associates
Solicitors for 4 of the 7 Second Defendants: Suresh Maharaj & Associates

Date of Hearing (for Leave to Appeal etc):17 June 2005
Dates for Affidavits: 8 July and 29 July 2005
Dates of Submissions: 12 August, 2 September and 9 September 2005

Date of Hearing (For re-hearing and setting aside application): 22 June 2005
Dates for Affidavits: 13 July and 27 July 2005
Dates of Submissions: 12 August, 2 September & 9 September, 2005
Date of Ruling: 14 October 2005

INTERLOCUTORY RULING OF FINNIGAN J

On 8 March 2005 I issued an interlocutory ruling on various applications by most of the Defendants to have themselves struck out of the Plaintiffs’ proceedings. On 3 June 2005 the Plaintiffs filed two applications. One is to have that interlocutory ruling set aside and all the applications reheard. The other was for leave to appeal against that interlocutory ruling and for extension of time to appeal and for stay of the ruling.

The applications were dealt with separately on the dates given above. Affidavits and written submissions were to be filed in accordance with the timetables also above. It now falls to me to issue further interlocutory rulings on the two applications.

At the outset it can be said that in my interlocutory ruling I was critical of the Plaintiffs for their distinct lack of energy quite apart from the lethargy shown in the process by the Court since the action was filed on 14 April 1998. They had however filed written submissions. They did not appear at the interlocutory hearing so did not add oral submissions as the other parties had done.

In the interlocutory ruling I found grounds under Order 18 Rule 18 (1) (a), (b) and (d) to strike out the First Defendant and the Second Defendants. In a separate application by the First Defendant I found all four of the Order 18 Rule 18 grounds established. I described this as a shameful thing and well below the standard expected of practitioners. That was expressed as subject to hearing their point of view, and that has now occurred. What now remains after my ruling is one claim by the First Plaintiff against the First Defendant for setting aside or other relief from its Deed of Release. Costs for the First Defendant on the striking out application were for that reason reserved. An order for costs was made for all the other Defendants, as a pre-condition of a hearing of that application about the Deed of Release.

The essence of the Plaintiffs’ applications seems to be that if they are successful in obtaining relief from the Deed of Release which they gave then that will benefit them nothing if their other claims have been struck out. In particular they wish to pursue a cause of action based on a claim that the directors of the National Bank of Fiji had a fiduciary duty to them as bank customers. In my opinion that is a fanciful and insupportable claim.

I have spent a considerable time re-acquainting myself with this file and with all of the affidavits and submissions filed in respect of these two applications. Without intending discourtesy to Counsel I shall deliver this ruling in short form. Their ample submissions and cited authorities are admirably comprehensive and make this course possible.

First the applications for leave to appeal, for extension of time and for stay. I accept the submissions of Defence Counsel that I have no jurisdiction. Rule 27 of the Court of Appeal Cap 12 Rev. 1985 (Subsidiary Legislation) provides that this application can be considered in this Court only if the application is made before the expiration of the period for filing and serving the Notice of Appeal given by Rule 16. I determine the issue raised by Counsel for the Plaintiffs’ about whether my ruling was interlocutory or not by holding that it undoubtedly was interlocutory. The time period was 21 days. The order was perfected on 12 May 2005 and that period expired on 2 June 2005. The application is one day out of time. I have no power to extend time. All three applications in respect of the proposed appeal are dismissed.

I now consider the applications for setting aside and rehearing of the matters in my 8 March 2005 ruling. At the outset it has been pointed out in the submissions that an early hearing date had been given (22 June 2005) for decision of the Plaintiffs remaining course of action (relief from the Deed of Release). Had the Plaintiffs accepted that date instead of filing these applications then a simple trial would have resolved that issue. Thereafter they had remedies by way of substantive appeal against the whole of this Court’s determinations. They have chosen once again a course of action which delays once more the final resolution of their substantive claims.

To succeed in these applications the Plaintiffs must show that they have been denied justice and that they had substantial submissions that would have been made orally which could have lead to a result more favourable to them. Nothing in the submissions and affidavits made by their solicitors on their behalf causes me to think that was the case. The applications for setting aside and rehearing of the interlocutory matters are refused.

I urge the Plaintiffs to come to Court for a hearing of what remains of their action. I will list the matter for appearances by all Counsel on Friday 28 October 2005 so that a special hearing date may be arranged and the matter finally determined if possible before the end of this year.

On these two applications the Plaintiffs must pay, if not indemnity then at least substantial costs. I assess costs summarily on both applications together. For the First Defendant I fix costs at $1,000.00 and for all of the Second Defendants who participated there is a further order for one single payment of $1,000.00.

D.D. Finnigan
JUDGE

At Lautoka
14 October 2005