Systems Solutions Pty Ltd v Fiji National Provident Fund [2011] FJHC 187; HBC176.2008 (24 March 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 176 of 2008

BETWEEN:

SYSTEMS SOLUTIONS PTY LTD a private company having its registered office at Provident Plaza 1, Level 3, Module 2, 33 Ellery Street, Suva.
PLAINTIFF

AND:

FIJI NATIONAL PROVIDENT FUND a statutory body, established under the Fiji National Provident Fund Act, Cap 129 and having its Head Office at Provident Plaza Two, Ellery Street, Suva.
DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSELS: Lajendra Law for the Plaintiff
M.A. Khan Esq. for the Defendant

Date of Hearing: 8th February, 2011
Date of Ruling: 24th March, 2011

RULING

1. INTRODUCTION
   

1. This is plaintiff's summons to amend the statement of claim since the Plaintiff has discontinued the proceedings against the second Defendant.
   

2. FACTS
   

2. On the 23rd day of May 2008, the Plaintiff has instituted a Writ of Summons together with a Statement of Claim against the Defendant and Decorseal Pty Ltd ("the Second Defendant") prior to the action being withdrawn by the Plaintiff's Solicitors.
   
3. On the 23rd day of May, 2008, the Plaintiff's filed an Acknowledgement of Service to their Writ of Summons by the Defendant.
   
4. On the 3rd day of June, 2008, the Defendant filed an Acknowledgement of Service to the Plaintiff's Writ of Summons.
   
5. The Defendant (known as the First Defendant then filed their Statement of Defence on the 17th day of June, 2008.
   
6. On the 22nd day of September, 2008, the Plaintiffs filed a Reply to the Statement of Defence to the First and Second Defendant's Statement of Defence(s).
   
7. On the 22nd day of September, 2008, the Plaintiff filed a Summons for Direction for parties to file their respective Affidavit Verifying List of Documents, for inspection and to conduct a pre-trial conference.
   
8. On the 5th day of December, 2008, the Plaintiff's Solicitor filed their Affidavit Verifying List of Documents for the Plaintiff.
   
9. On the 17th day of December, 2008, the Second Defendant's Solicitor filed their Affidavit Verifying List of Documents.
   
10. On the 14th day of November, 2008, the First Defendant filed their Affidavit Verifying List of Documents.
    
11. On the 8th day of January, 2009, the First Defendant vide their Solicitors, Messrs M.A. Khan Esq. filed their Notice of Change of Solicitors.
    
12. On the 5th day of October, 2010, the Plaintiff filed their Notice of Discontinuance of their action against the Second Defendant.
    
13. On the 9th day of November, 2010, the Plaintiff filed their Summons and Affidavit in Support for leave to amend their Statement of Claim.
    
14. On the 17th day of December, 2010, the First Defendant (now known only as the Defendant) filed their Affidavit in Reply to the Plaintiff's Summons to amend their Statement of Claim.
    

100. THE LAW AND ANALYSIS
     

15. The Plaintiff has mad e this application for leave to amend their statement of claim in terms of Order 20 rule 5(1) of the Hough Court Rules of 1988. It states as follows:
    

"Subject to Order 15, rules 6, 8 and 9 and the following provisions of this rule, 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."

16. In the case of G.L. Baker Ltd- v- Medway Building & Supplies Ltd (1958) 1W.L.R. 121per Jenkins L.J. held that is a guiding principle of cardinal importance on the question of amend 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 defect or error in any proceedings"
    
17. In this action the Plaintiff has discontinued the claim against 2nd Defendant after the revelations in pre trial conference and it is obvious that the claim should be amended accordingly. The amended statement of claim is filed.
    
18. It is noted that in the case of Clarapede v Commercial Union Association (1883) 32 W.R 262 where per Brett MR has reasoned that "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 compensated by costs. There is not injustice if the other side can be compensated by costs"
    
19. In the circumstances the amendment should be allowed. Any delay can be compensated by cost. The 1st Defendant seeks indemnity cost. But considering the circumstances I do not think that this is a proper instance to grant indemnity cost. So I assess the cost summarily at $1,000.00. The cost to be paid to the Defendant within 14 days.
    

Dated at Suva this 24th day of March, 2011

Mr. Deepthi Amaratunga
Acting Master of the High Court

Suva