Stephens v Nunnink [2005] FJHC 515; HBC0204r.2004s (7 September 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0204 OF 2004

Between:

1. GARY STEPHENS
2. HELEN STEPHENS
3. HORSESHOE BAY INVESTMENTS PTY LTD
Plaintiffs

and

1. AREN JOSEPH NUNNINK
2. KI MAREN (FIJI) LIMITED
Defendant

Mr. Anand Singh for the Plaintiff
Mr. D. Sharma for the Defendant

Date of Decision: 7.9.05

DECISION

This is an application by the plaintiffs under Or. 20 r.5 of The High Court Rules 1988 for leave, inter alia, to amend their Statement of Claim.

Reliefs sought

The application under the Inter-partes Notice of Motion dated 23 June 2005 reads as follows:

1. That the Counter claim 1 to 6 filed herein by the Defendants be struck off as it discloses no reasonable cause of action and are frivolous and vexations and an abuse of the Court process.
   

This application is made pursuant to Order 18 Rule (1)(a), (b), (c) and (d) and under the Inherent Jurisdiction of the Court.

2. An injunction directed against the 1^st Defendant and 2^nd Defendant restraining each of them, or there servants or agents or howsoever from obstructing and or interfering with the Plaintiffs right either jointly or severally, from using the road access reserve commonly known as Lot 29 on DP 6804, and further restraining the first Defendant and the 2nd Defendant from impeding and or obstructing and or interfering with the Plaintiffs, their invites and licensees from using the aforesaid road reserve for vehicular or pedestrian access to CT 26169 or on the adjourning beach AND FURTHER restraining the Defendants or their servants or agents from erecting roadside notices prohibiting access to the road reserve or the utilization of the road reserve for vehicular and/or pedestrian traffic to access CT 26169 or the adjourning beach by the Plaintiffs their servants or agents or invitees.
   

This application is made under Order 29 Rule (1)(1) Rules of the

High Court.

3. The Plaintiffs herein do have leave to amend the Statement of Claim by adding several new causes of action as set out in the annexure hereto and marked in red on the side and further leave to amend the Statement of Claim generally.
   

This application is made pursuant to Order 20 Rule 5(1)

4. For the dissolution of the order of the court ordering that the proceeds of sale of CT 26169 to be paid into Court.
   

This application is made under Order 29 Rule (1) and (7) of the Rules of the High Court.

5. For an Order for costs to the Plaintiffs.
   

Matters Pending before Court

The following applications are pending before the Court:

The plaintiffs’ application is for:

1. Leave to amend the Statement of Claim
2. Striking-out of the defendants’ Counter-claim
3. Injunction
   

The Defendants’ application is for:

1. A Mareva injunction
2. Striking out of Plaintiffs’ defence to the Counter-claim
3. Striking out the plaintiff’s statement of claim.
   

The Counsel for the plaintiffs (Mr. A.K. Singh) sets out in his skeleton submission the background to the case giving rise to the present application. It is a flow on from an order made by this Court on 29 March 2005 and some of it by consent.

The Court has before it for its consideration Skelton Argument filed 1 June 2005, synopsis of Legal Submissions on behalf of the defendants of May 2005, Defendants’ submissions on Plaintiffs’ application to amend Pleadings and the Plaintiffs’ Response to the Defendants’ submission on application to Amend Pleadings.

The plaintiffs have also filed Notice of Motion (consolidated) dated 1 June 2005 which sets out the Orders sought including in prayer 3 leave to amend the ‘Statement of Claim generally’ under Order 20 Rule 5(1).

In this Motion they say that they ‘will read and rely upon the affidavit of Gary Stephens sworn 12 April 2005 and 24 May 2005 and Archana Sharan on 3 May 2005 and filed herein ...’

The plaintiff sets out in the said Motion the actual amendment sought to the Statement of Claim. They state by way of Note ‘that the proposed amendment by way of addition will commence after the last word “just” in prayer (g) of the original Statement of Claim and will be numbered “13” and will run consecutively thereafter’

Defendants’ opposition to amendment to statement of claim

The defendants oppose the plaintiffs’ Notice of Motion dated 1 June 2005 to amend the Statement of Claim.

At the outset they say that the claim is statute-barred and this is denied by the plaintiffs.

Their first ground of objection is that the plaintiffs are adding new causes of action. Secondly, they say that the amendments are ‘defective in form’. No reasons have been given why they wish to amend their claim at this stage. There should have been some explanation as to what are the compelling reasons why the Court should grant them leave to make amendments at this stage.

The third ground advanced by the defendants is based on the contents of the amendment and the proposed new causes of action. Counsel submits that the proposed amended claim ‘is so badly drafted, so vague and bereft of specific particulars that it would be an abuse of process to allow such amendments.’

Plaintiffs’ response to defendants

The learned counsel for the plaintiffs submits that the plaintiffs are not acting mala fides. The causes that ‘they are raising are matters of real concern to them, and it affects their rights to challenge the defendants’ conduct in the whole transaction and afterwards.’

The counsel submits that the defendants will not be prejudiced in any way if the amendments are allowed. In fact the amendments will allow all the matters in dispute to be resolved in the trial.

The plaintiffs dispute the defendants’ assertion that the action is statute- barred as they say that the cause of action did not arise until 10 March 2004 ‘when the plaintiff surreptitiously and behind the defendants’ back attempted to correct the ‘survey anomaly’ and purportedly grant a legal access to the 3^rd plaintiff.’

Consideration of the application

As stated earlier there are a number of pending applications herein.

It is agreed, if I have understood counsel right, that I hear this application first. In any case it is prudent that I dispose of this first.

On the preliminary issue of ‘statute of limitation’ raised by Mr. Sharma, it is only in exceptional circumstances that the Court will authorize an amendment introducing a new cause of action which is barred by statute of limitation. The plaintiffs dispute this issue and hence I cannot deal with this aspect except during the trial.

General principles for grant of leave to amend

The general principles for grant of leave to amend are set out in The Supreme Court Practice 1988 where under Or. 20/5 – 8/6 it is stated that:

“it is a guiding principle of cardinal importance on the question of amendment that, generally speaking, all such amendments ought to be made ‘for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defects or error in any proceedings’.” (see, per Jenkins L.J. in R.L. Baker Ltd v Medway Building & Supplies Ltd [1958] 1 W.L.R. 1216, p 1231.

It is further stated in the White Book (20/5 – 8/6 ibid):

“It is a well established principle that the object of the Court is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights...I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace...It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of rights on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right” (per Bowen L.J. in Cropper v Smith [1884] UKLawRpCh 91; (1883) 26 Ch D 700, pp.710-711, with which observations A.L. Smith L.J., expressed “emphatic agreement” in Shoe Machinery Co. v. Cultam (1896) 1 Ch. 108. P. 112).”

In Tildesley v. Harper [1878] UKLawRpCh 284; (1876) 10 Ch. D 393, pp 396, 397, Bramwell L.J. said and it is apt:

“My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by his blunder, he had done some injury to his opponent which could not be compensated for by costs or otherwise.” “However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs” (per Brett M.R. Clarapede v Commercial Union Association (1883) 32 WR 262, p263; Weldon v Neal [1887] UKLawRpKQB 161; (1887) 19 QBD 394 p.396. Australian Steam Navigation Co. v. Smith (1889) 14 App. Cas.318 p 320; Hunt v Rice & Son (1937) 53 TLR 931, C.A. and see the remarks of Lindley L.J. Indigo Co. v. Ogilvy (1891) 2 Ch. 39; and of Pollock B. Steward v North Metropolitan Tramways Co., (1886) 16 QBD.178, p.1810, and per Esher M.R. p.558, C.A.). An amendment ought to be allowed if thereby “the real substantial question can be raised between the parties,” and multiplicity of legal proceedings avoided (Kurtz v Spence (1888) 36 Ch,D. 774; The Alert (1895) 72 L.T. 124.”

Conclusion

In this case the application is made under Order 20 Rule 5(1) of The High Court Rules 1988 which provides, inter alia:

“the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.”

Bearing in mind the law on the subject of amendment of pleadings and after considering the helpful submissions made by both counsel I allow the application to amend the Statement of Claim as proposed particularly in the interests of justice so that all the issues are tried in one trial thus avoiding multiplicity of actions.

The Amended Statement of Claim is ordered to be filed within 28 days.

I award costs against the plaintiffs in the sum of $1000.00 to be paid within 14 days.

I adjourn the case until 13 October 2005 upon my return from leave for further directions regarding the pending applications and generally as to the future course of the action.

D. Pathik
Judge

At Suva
7 September 2005