Fairdeal Earthmoving Contractors v Matapo Ltd [2006] FJHC 79; HBC212.2005 (13 October 2006)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. 212 OF 2005

NO. 213 OF 2006

BETWEEN

FAIRDEAL EARTHMOVING CONTRACTORS
Plaintiff

AND

MATAPO LIMITED
1st Defendant

AND

MINISTRY OF WORKS & ENERGY
2nd Defendant

AND

MINISTRY OF FINANCE & NATIONAL PLANNING
3rd Defendant

AND

ATTORNEY GENERAL OF FIJI
4th Defendant

Appearances: Valenitabua S. R. Esq. for plaintiff
Muaror & Co. for 1st defendant

Hearing: 8 August 2006
Ruling: 13 October 2006

JUDGMENT
(Amendment)

[1] The summons which is before me asks for an order on behalf of the plaintiff that it be granted leave to amend its statement of claim.

[2] The application was opposed.

[3] The background facts are set out in the earlier judgment of Connors J delivered on 28 April 2006 and need not be repeated here.

[4] The principal grounds raised in opposition are that:

(i) the proposed amendments are merely cosmetic

(ii) undue delay

(iii) the deficiencies in the plaintiffs pleadings will not be rectified by the proposed amendments.

[5] The relevant principles for consideration in applications to amend are well known and settled. An amendment to pleadings may be permitted by the court at any stage of the proceedings for the purpose of determining the real question in controversy and, if it can be made without injustice to the other side should be allowed however late, and however negligent or careless may have been the first omission. Fiji Electricity Authority –v- Balram & Others (Supreme Court, 1972 (Goudie J) 28 February, 3 March).

[6] The cause of action pleaded against the defendants is premised on an alleged breach of contract in relation to the tender and in relation to the Deed by virtue of the plaintiffs tender. For the plaintiff to be able to succeed, it must prove that there is in fact a contract between it and the 1st defendant. As Connors J has already stated the proposition that as a named party (reference to it as a qualifying contractor) the plaintiff is entitled to enforce the Deed is a tenuous argument. Similarly, the plaintiff’s argument that the submission of a tender, in the circumstances of the tender document, creates a contract is an even more tenuous argument. The proposed amendments do not cure the deficiencies in the propositions relied on by the plaintiff. Nevertheless, it seeks to include a claim that although not named a party in the Deed, it is conferred a benefit, as a qualifying contractor by the Deed, thus creating a right to sue the defendants for breach of the provisions of the Deed and the Tender document. This is an even more tenuous argument than those mentioned by Connors J previously. However this appears to be the main question in controversy between the parties and in the exercise of my discretion I have allowed the application to amend.

[7] Any injustice to the 1st defendant occasioned by the plaintiffs delay can be compensated by an appropriate order for costs.

Order

(i) Order in terms of prayer (1) of the plaintiffs summons

(ii) The plaintiff is to pay the 1st defendant costs assessed in the sum of $400.00 within 14 days

(iii) Case adjourned to 3 November 2006 to fix a hearing date of the substantive action.

Gwen Phillips
JUDGE

At Lautoka
13 October 2006