Joes Farm Produce Ltd v Carpenters Fiji Ltd [2005] FJHC 386; HBC0437R.2005S (15 December 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0437R OF 2005S

BETWEEN:

JOES FARM PRODUCE LIMITED
DALMAX INVESTMENTS LIMITED
PLAINTIFFS

AND:

CARPENTERS (FIJI) LIMITED
CARPENTERS PROPERTIES LIMITED
PROPERTIES TRUST (FIJI) LIMITED
DEFENDANTS

Counsel for the Plaintiffs: G.O. Driscoll ) O’Driscoll & Seruvatu

: Ms Seruvatu )

Counsel for the Defendants: C. Lateef) Lateef & Lateef

Ms Bale )

Date of Ruling: Thursday, 15 December 2005
Time of Ruling: 10.50 a.m.

RULING

Order 4 Rule 2 deals with consolidation of proceedings. The principles the Court will take into consideration are as set out under paragraphs (a), (b) and (c) of the rule, namely:

(a) That same common questions of law and fact arise on all of the causes or matters pending;

(b) That the rights to relief arise out of the same transaction or series of transactions;

(c) That it is desirable to do so.

There are, in this instance, 3 matters before the Court, CA 437/05, CA 455/05 and CA 533/05. In CA 437/05, the Plaintiff seeks restitution of property on the ground of fraud and breach of contract. In addition, the Plaintiff seeks damages for losses resulting from breach of contract. CA 455/05 and CA 533/05 represent the Plaintiff’s claims for non payment of goods and services that remain unpaid by the Defendants. The parties to these series of transactions are the same and their rights, obligations and duties arise out of an Agreement dated 19 August, 2002.

It is readily conceded by the Counsel for the Plaintiff, that CA 455/05 and CA 533/05 are a series of transactions that raise the same questions of law and fact arising out of the same Contract of Service. Insofar therefore as these two causes are concerned, the Court will Order their consolidation.

The remaining question is whether CA 437/05 should also be included and consolidated with the other two. In this action, the Plaintiff seeks restitution of CT.18470, representing the Defendant’s supermarket situated at Flagstaff known as MH Premium. The Plaintiff claims that the land was transferred to the Defendant on the clear understanding between the parties, that the Plaintiff would become the exclusive supplier of fresh fruits and vegetables to the Defendant, as manifested in the contract of 19 August, 2002. In other words, the Plaintiff was induced into selling CT.18470 by the Defendants promise of exclusivity of its supplies of fruits and vegetables. He, at the end is alleging fraud and misrepresentation.

The difficulty in trying to distinguish or isolate CA 437/05 from the other 2, arises I suggest from the confused nature of the Plaintiff’s claims.

In its details of Statement of Claim, the Plaintiff identifies 2 causes of action. The first cause of action is based on the same contract for supplies of goods and services to which CA 455/05 and CA 533/05 rely. The second cause is purportedly based on breach of promise or agreement by the Defendant to give exclusive rights to the Plaintiff to supply fruits and vegetables, the consideration of which was the 2^nd Plaintiff’s consent to transfer CT.18470 to the Defendant.

The link of the sale of the property to the issue of the exclusivity to supply does in fact provide the common thread between all the 3 actions. However, the fact remains that the Plaintiff’s allegation of fraud against the Defendant in respect of the transfer, makes it and substantially different cause of action as those that give rise to CA 455/05 and CA 533/05, although it could very well be that certain relief’s sought by the Plaintiff maybe repeated in CA 437/05.

Under the circumstance, I will order the consolidation of CA 455/05 and CA 533/05 only. The proceedings under CA 437/05 will remain separate to take its normal causes.

In respect of the Consolidation Order, I direct as follows:

1. That the Plaintiff’s claims are to be categorized as claims 1 and 2

in respect of CA 455/05 and CA 533/05 respectively.

2. That the Plaintiff be at liberty to file his affidavit in response to

the Defendants affidavit in opposition to its motion to strike out

the defence, within 7 days.

3. That the Plaintiff to file submissions by 29^th December.
   
4. Defendant to file submission by 13^th January, 2006.
   
5. Liberty to the Plaintiff to reply by 20^th January.
   
6. Adjourned to 23^rd February, 2006 at 10.00 a.m. for arguments.
   

F. Jitoko

JUDGE

At Suva
15 December 2005