Glenore Ltd v Global Premium Services Ltd [2011] FJHC 30; HBC148.2009 (28 January 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 148 OF 2009

BETWEEN:

GLENORE LIMITED
a duly incorporated company having its registered office situate at
c/- HLB Crosbie & Associates, Chartered Accountants. T
op Floor, HLB House, 3 Cruickshank Road, Nadi, Fiji trading as
GARDEN ISLAND RESORT.
Plaintiff

AND

GLOBAL PREMIUM SERVICES LIMITED
a duly incorporated company having its registered office situate at
3 Vesi Crescent, Lautoka, Fiji.
Defendant

Before : Master Anare Tuilevuka

Counsel : Mitchell Keil Lawyers for the Plaintiff
Messrs Young & Associates for the Defendant

Date of Ruling : 28th January 2011

RULING

[1]. Before me is an application by the plaintiff pursuant to Order 18 Rule 18 to strike out various paragraphs of the Amended Statement of Defence and Counter-claim filed on 30th August 2010.

[2]. The grounds for the application are contained in a letter dated 14th October 2010 by Mitchell Keil & Associates to Young & Associates.

[3]. Without setting out what these grounds are, I will simply say here that I agree with the plaintiff's submissions that the particular paragraphs in question which he found offensive, indeed, could be better phrased.

[4]. But for all their inadequacies, these paragraphs do contain certain allegations of fact that raises issues deserving to be aired out properly at the trial of this case.

[5]. The appropriate remedy however is not to strike them out – but to allow the defendants a chance to amend their pleadings so as to accentuate the issues for the Court. The jurisdiction to strike out proceedings and pleadings is guardedly exercised and only in exceptional cases where, on the pleaded facts, the plaintiff could not succeed as a matter of law. It is not exercised where questions of legal importance are raised.

[6]. Having said that – I mention here specifically that during the hearing of this application, Mr. Young did highlight various parts of the plaintiff's pleadings that offend the very rules that they are crying foul over. Mr. Krishna more or less conceded to this.

[7]. So – after having considered all, I direct that the parties revisit their respective pleadings.

[8]. I note that Summons for Directions has already been filed dated 27th October 2010 but no Order has been made on these yet because of the pendency of this application.

[9]. Mr. Young had suggested that the issues about the parties pleadings could be dealt with at Pre-Trial Conference. I see nothing wrong in that. I recall the days when pleadings were revisited and on many an occasion, were revised and amended at Pre-Trial Conference which were all then held before Mr. Justice Gates (now Chief Justice) in Lautoka High Court many years ago.

[10]. The directions are as follows:

I grant leave to both parties to amend their respective pleadings.

The plaintiff firstly is to file and serve its amended pleadings in 21 days.

14 days thereafter to the Defendant to file and its amended defence and counter-claim

7 days thereafter to the plaintiff to file a reply

Adjourned to Friday 11th March 2011 for mention to check on compliance and consider Summons for Directions already filed on 27th October 2010.

[11] Any further more issues about pleadings are to be addressed at PTC in due course. Costs in the cause.

Anare Tuilevuka
Master

At Lautoka
28th January 2011