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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
CIVIL ACTION NO: HBC 449 OF 2007
BETWEEN:
PACIFIC COATINGS LIMITED
a limited liability company having its registered office at
Lot 15-21 Nukuwatu Street, Lami in Fiji.
Plaintiff
AND:
SATENDRA PRASAD INVESTMENT LIMITED
a limited liability company having its registered office at 21 Tui Street, Lautoka in Fiji.
Defendant
Before: Ms. Dias Wickramasinghe J
Counsels Appearing:
Ms. M. Rakai for the Plaintiff
Ms. R. Naidu for the Defendant
Date of Hearing: 17th August 2010
Date of filing of written submissions: 20th August 2010
Date of Ruling: 19th October 2010
RULING
INTRODUCTION
[1] The Defendant by its Summons dated 3rd March 2009 seeks the following Orders from this Court:
(i) Transfer of the instant action to Lautoka High Court and consolidate the case with Lautoka High Court Action No HBC 241/2006 and the Plaintiff be made a Nominal Third Plaintiff in that case;
(ii) Cost order made by the Master on 19th February 2002 (sic) in a sum of $350.00 against the Defendant be vacated, set aside and cancelled.
CASE HISTORY
[2] The Plaintiff by its Writ of Summon seeks inter-alia a judgment against the Defendant in a sum of $84,078.33 for the paint supplied by its company.
[3] The Defendant was the main contractor of Denarau Investments Limited and it is alleged that on the request of the Defendant, the Plaintiff supplied paint to the Defendant at the "Hilton Site".
[4] The Plaintiff further alleges that the Defendant maintained a monthly account with the Plaintiff and the payments for the paint supplied were through this account at the end of each month.
[5] Defendant refutes this position and states that the payment arrangement agreed between the Plaintiff, Defendant and Denarau Investment Limited was for the Defendant to issue Purchase Orders to the Plaintiff and Denarau Investment Limited to directly pay the Plaintiff for all the paint supplied for the project.
[6] The Defendant further states that based on the aforesaid arrangement Denarau Investment Limited paid the Plaintiff directly in the course of the construction work, up until Denarau Investment Limited terminated the Defendant's contract and locked out the Defendant from the construction site on 11th April 2006.
JURISDICTION
[7] When the matter was taken up for hearing, the Defendant strenuously traversed the jurisdiction of this court. Subsequent to the hearing, court ordered both parties to file further written submissions. The Defendant filed further submissions on 20th August 2010. Plaintiff did not file further submissions.
[8] The Defendant first raised an objection to the jurisdiction of this court in paragraph 5 of the Statement of Defence filed on 20/11/2007 which states as follows.
"(5) That the Defendant by further defence pleads that the Plaintiff has no cause of action against it and therefore the instant action ought to be struck out on the following grounds:-
(i) That the agreement/dealing the transaction between the Plaintiff, the Defendant and Denarau Investment Limited had occurred at Denarau, Nadi;
(ii) That the claim has been filed outside the Jurisdiction of this Honourable Court.
(iii) That there is a pending Court action in the Lautoka High Court vide Action No HBC 0241/06 between the Defendant and Denarau Investment Limited whereby the Defendant is seeking for an order that Denarau Investment Limited do pay all the suppliers of the Hilton Villas Project Investment Limited under the arrangement.
The Defendant is now making an application that the Plaintiff's claim also be included in the Action No 241/06 referred above;
(iv) That the Plaintiff was duly informed of the existence of the said Court action but despite that, the Plaintiff chose to commence this action in breach of the rules and outside the jurisdiction of this Court"
[9] In response, the Plaintiff in its Reply to the Defence dated 4th April 2008 states as follows:-
"Save insofar as the same consists of admission, the Plaintiff joins issue with the Defendant on its defence".
[10] O. 18 r 12 of the High Court Rules 1988, as amended by Legal Notice 73/1997 (HC Rules) provides the manner in which pleading should be admitted and denied by the parties which reads thus:
Admissions and denials (O.18, r.12)
(1) Subject to paragraph (4), any allegation of fact made by a party in his pleading is deemed to be admitted by the opposite party unless it is traversed by that party in his pleading or a joinder of issue under rule 13 operates as a denial of it.
(2) A traverse maybe made either by a denial or by a statement of non-admission and either expressly or by necessary implication.
(3) Subject to paragraph (4), every allegation of fact made in a statement of claim or counterclaim which the party on whom it is served does not intend to admit must be specifically traversed by him in his defence or defence to counterclaim, as the case may be; and a general denial of such allegations, or a general statement of non-admission of them, is not a sufficient traverse of them.
(4) Any allegation that a party has suffered damage and any allegation as to the amount of damages.
[11] O.18 r. 12(2) of the HC Rules requires the Defendant to traverse jurisdiction either by a specific statement of denial or by a statement of non-admission either expressly or by necessary implication.
[12] In terms of O.4 r. 1(1) of the HC Rules, proceedings must ordinarily be commenced in the High Court Registry in the division in which the course of action arises.
[13] The onus rests with the Plaintiff to demonstrate the manner in which the Court assumes jurisdiction. The Plaintiff has not submitted or referred to any oral, written or implied contract between the parties in its Statement of Claim, except stating that a payment arrangement existed between the Plaintiff and the Defendant. A court cannot determine the manner in which the cause of action arose solely on such a statement. The Defendant, in any event, alleges that Denarau Investment Limited paid the Plaintiff directly and not as alleged by the Plaintiff and the affidavits filed by the Plaintiff do not deny that it was paid by Denarau Investment Limited.
[14] The Plaintiff in response to the objection to jurisdiction taken by the Defendant, avers at paragraph 6 of the affidavit of Viliame Leqa as follows:
"Arguably the cause of action in this matter arises in Suva. The bulk of the Plaintiffs operations are in Suva and it entered into a contract with the Defendant to supply paints. It is irrelevant that the Defendant chose to use these paints in Nadi."
[15] I find that the aforesaid averment is inadequate for this court to construe the manner in which the cause of action arose. Such a statement is not a non- admission either expressly or by implication to traverse jurisdiction. When the Defendant objected to this court's jurisdiction in its statement of Defense, the Plaintiff merely made a general denial. O.18 r. 12 (3) of the HC Rules specifically states that "a general denial of such allegations, or a general statement of non-admission of them, is not a sufficient traverse of them".
[16] The Plaintiff has failed to traverse jurisdiction pursuant to the requirements stipulated in O.18 r. 12(2). Therefore court concludes that the general denial made in the Reply to the Defence is insufficient to traverse the specific allegation of the Plaintiff in terms of O.18 r. 12 (3) HC Rules.
[17] O.18 r. 12(1) of the HC Rules requires this court to deem an allegation as admitted if it is not traversed by the opposing party. In the circumstances this court deems that the Plaintiff admits that the cause of action arose in the jurisdiction of Lautoka High Court.
TRANSFER AND CONSOLIDATION OF THE CASE
[18] The Court's power to transfer cases to the right Division of the Court is discretionary.
[19] Fatiaki J, in Deo v Patel [1993] FJHC 16, quoted the well established principles set out in Halsbury's Laws of England (4th Edition) Vol 37 at paragraph 123 which guide a court in the exercise of its discretion to transfer cases which reads thus:
"the Court's power to transfer proceedings from one Court to another is a useful corrective to ensure that proceedings, wherever begun or whatever forum the claimant has initially chosen, are dealt or heard or determined by the Court most appropriately or suitable for those proceedings"
[20] I have carefully considered the affidavits, written submissions filed by parties to this action. The Defendant in its further submissions also attached a copy of the claim filed in Lautoka High Court Action No 241/2006 and the Order of Winding Up Action 61 of 2007.
[21] The Plaintiff in High Court Action No 241/2006, (Sathedra Prasad Investment Limited) in its further Amended Statement of Claim has prayed for the said Court to order Denarau Investments Limited to pay all outstanding creditors stated in paragraph 11 of its claim. On a perusal of paragraph 11, I find that the plaintiff has failed to include the Plaintiff in this action; Pacific Coatings Limited as a creditor. No explanation has been given by the Defendant in the action before me for such omission. I am of the view that, had the plaintiff been included as a creditor, the present issues would not have arisen.
[22] Be that as it may, the court finds that considering all factors and surrounding circumstances of this case, especially the nature, character of the proceedings and the interests of all litigants it is expedient to transfer the case to Lautoka High Court for proper administration of justice.
[23] Upon careful consideration of the provisions of O. 4 r. 2 of the HC Rules, and all the documents before me, I find that the action before me and Action 241/2006 before Lautoka High Court have common questions of law and facts and they arise out of the same or series of transaction relating to the construction of "Hilton Site. In the circumstances I order the transfer and consolidation of actions.
Order for Cost made by the Master on 19 February 2002
[24] The defendant by its Summons moves this court to vacate, set aside and cancel the Order of the Master made on 19/02/2002, in a sum of $350.
[25] This action was filed on the 21st of September 2007. The Master has made an Order on 19/02/2009 for the payment of $ 350 as wasted cost. Although the Summons states the year of the impugned order of the Master as 2002, on a consideration of the affidavits and the written submissions filed by the parties, I find that the year had been stated erroneously, when in fact it should be 2009. It is on this basis that I have made the analysis below on the Order made by the Master on 19/02/2009.
[26] I have examined the case record and find that the Master, Mr J Udith had Ordered Summons for Direction on 12/05/2008 with Orders made for filing of Affidavits verifying List of Documents by 02/06/2008, exchange of documents by 16/06/2008, PTC by 30/06/2008, PTC Minutes to be filed by 08/07/2008 and matter to be reviewed on 21/07/2008.
[27] When the matter was called on 21/07/2008, it had been adjourned to 04/09/2008 in order to review Orders for the Defendant to file List of Documents by 09/08/2008, parties to exchange documents by 16/08/2008 and PTC Minutes to be filed by 31/08/2008.
[28] On 04/09/2008, the matter was once again adjourned to 26/09/2008 for compliance as to PTC Minutes and Agreed documents. On 26/09/2008, the matter was further adjourned to 03/11/2008 for mention.
[29] On 3rd November 2008, Master had made an order to file PTC minutes by 31/1/2009 and adjourn the matter to 2/2/2008.[sic]
[30] When the matter was called on 2nd February 2008 [sic], the Master ordered that the Pre-trial conference to be continued before him on 19th February 2009 and further ordered that the counsel conducting the trial to appear before him.
[31] The matter was then called on 19th February 2009, and the Master's minutes read as follows:
R Nand -No documents to prove that there was a contract between DIL and PCL. Statement of claim.
I am disappointed with the counsel of Mr S. Maharaj in this matter. Mr Nand who appeared on his instructions informs me that he advised Mr Maharaj that he was requested to attend the Pre-trial conference. Further Mr Nand informs me that Mr Maharaj is busy in other matters at the Lautoka Court, not knowing which court.
This is a 2007 action. Pre-trial conference is being dragged. Despite an order of the court, Mr Maharaj failed to appear. Certainly, this amounts to a deliberate disobedience and discourtesy to court.
Mr Nand only has the Statement of objections of claim to draft minutes . That is insufficient for PTC.
I am forced to adjourn this matter for hearing due to Mr Maharaj's conduct.
The adjournment come with some costs to the plaintiff and court.
Further the costs to be paid by the solicitor.
Order:
[32] The Minutes of the Master dated 3rd March 2009 are as follows.
Sharma: Mr Maharaj is tied up in court today. He is sending his apology.
Court: Costs for hearing is reserved. Mr Maharaj should have been here. Adjourned to 17/3 to fix date when Mr Maharaj will be here for PTC.
[33] The defendant then filed Summons on 3rd March 2009, which is the subject matter of this Ruling.
[34] PTC of this case is not finalized up to date. The Writ of Summons was filed on the 13th September 2007. The Order on Summons for Directions was made on the 12th May 2008. The parties were required to file the PTC minutes by 8th July 2008. Over 2 years has lapsed since the Master ordered to file the PTC minutes, but for various reasons the PTC minutes have not been finalized.
[35] I have considered the Affidavit of Sathendra Prasad dated 27th February 2009, especially paragraphs 9 and 11 thereof. The attached documents reveal that the PTC was held on the 25th of July 2008 at the Boardroom of Jamnadas & Associates. However, the Solicitor of the Plaintiff has only forwarded copies of the minutes to the counsel of the Defendants on 6th October 2008. By this time the case has been heard before the Master on 3 dates; one date been vacated. The Affidavit states that after perusal of the minutes, the Solicitors wrote back to the Plaintiff with the minutes prepared by them as per the pleadings. Although the affidavit has attached a copy of the same, there is no covering letter or any other documents which disclose how, when or to whom the minutes were transmitted. The reply affidavit of Viliame Leqa dated 23rd April 2009 is also not helpful on the matter. The affidavit further states that the unamended minutes were once again forwarded for their execution on 10th (or 12) of February 2009. The letter of Suresh Maharaj & Associates dated 18th February 2009, sent to Messrs Jamnadas & Associates however reveals that they have sent their observations for amendment to the Solicitors on 13th October 2009.
[36] The Master on 2nd February 2009 ordered the trial counsel to be present before him on the 19th of February 2009 to finalize the PTC. Letter of Suresh Maharaj & Associates dated 18th February 2009 which is attached as Annexure E to the Affidavit of the Sathendra Prasad reveals that the Solicitor's Counsel has on 10th February 2009 sent the PTC minutes to the Defence, but the Defendant has not taken any steps even to reply same until 18th February 2009 just one day before the Master had ordered the trial counsel to be present in court.
[37] The Master observes that the City Agents of the Defendant Solicitor's was not ready to conduct the PTC. Considering the aforesaid documents, it is evident that the City Agents could not have been properly briefed by Suresh Maharaj & Associates to conduct the PTC. I am therefore unable to accept the affidavit evidence of Satendra Prasad at paragraph 11 that the City Agents were ready to conduct the PTC.
[38] Under the High Court Rules, Solicitors are required to conduct the PTC. Needless to say that solicitors of both, the Plaintiff and Defendant have delayed finalizing the PTC minutes in this case. The intervention of the Master was therefore obligatory as the delay affects the rights of the litigants, which does not augur well on the legal system of this country. The Master had thus ordered the trial counsel to be present to clear up the inordinate delay in finalizing the PTC.
[39] When the Master ordered the presence of the trial counsel on 8th February 2009, the Solicitors had two options. If the counsel was preoccupied, in the Lautoka courts as alleged, then steps could have been taken to get the date vacated or else the City Agents should have been properly briefed. The Defendant's Solicitors did neither. The day before the order, they write a letter to the Plaintiff's Solicitors. To me this conduct amounts to laches of Suresh Maharaj & Associates who was required to assist the Master to conclude the PTC. I am inclined to agree with the Master when he noted that the non-appearance of the trial counsel was a deliberate disobedience and discourtesy to court. The Master then made another order requesting Mr Maharaj to appear on the 3rd of March 2009. Even on that date, Mr. Maharaj totally disregarded attending court despite the Master's order.
[40] If the Solicitors and Counsel who are appearing in court have no regard to the Orders made by the Court, it would set calamitous precedence and the litigants would follow suit and totally disregard the Orders made by the court, causing utter chaos in the legal system.
[41] In the circumstances, I do not see any justification to interfere with the Order of the Master in awarding costs.
ORDERS
(i) The transfer of the Suva High Court Action No 449/2007 to Lautoka High Court forthwith and consolidate the case with Lautoka High Court Action No HBC 241/2006 and the Plaintiff be made a Nominal Third Plaintiff in that case.
(ii) The cost order made by the Master on 19 February 2009 in a sum of $350.00 against the Defendant to be paid within 14 days hereof.
COSTS
I have not heard the parties on costs. Accordingly, I do not make an order relating to costs of this hearing.
Ms. D Dias Wickramasinghe
JUDGE
AT SUVA
19th October, 2010
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