Niumataiwalu v Patrick [2012] FJHC 1468; Civil Action 131.2008 (20 April 2012)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No. 131 of 2008

BETWEEN:

George Niumataiwalu
Plaintiff

AND:

Ian Patrick Ng and Dale Ng
Defendants

Appearances: Mr K. Muaraor for the plaintiff
Mr R. Nand for the defendants
Date of hearing: 20th April, 2012

JUDGMENT

1. This is an application for leave to appeal out of time by the defendant against an Order of the Master of the High Court and for a stay of execution of the order, until the hearing and determination of this action. The Master had made order striking out the statement of defence and giving judgment for the plaintiff and following the failure of the defendants to comply with the terms of an order in 'unless form'.
   

The Master had made order on 18th March, 2009, as follows:

1. That the Defendant to pay plaintiff's costs in the sum of $600.00.
   
2. That unless the affidavit verifying list of document is filed by 30th April 2009, the statement of defence is struck out and interlocutory judgment for the plaintiff as prayed for in the statement of claim.
   
3. That costs to be paid by 20th April 2009.(emphasis added)
   

On 30th April 2009, since the affidavit verifying list of documents was not filed by 30th April 2009, the Master had made order as follows:

1. The Statement of Defence is struck out;
   
2. The sale for the whole of the land contained in crown lease no. 3123 together with the improvements erected thereon and known as 35 Reservoir Road, Samabula ("the Land"), pursuant to provisions of s.119 of the Property Law Act (Cap 130), be effected immediately.
   
3. The defendant hold their beneficial interest in the land upon resulting trust for the plaintiff to the extent of the difference between the plaintiff's contribution and those of the defendants....
   
2. The action had commenced by writ of summons. The statement of claim recites that the plaintiff and defendant are registered proprietors as joint tenants of a land contained in State Lease No.3123. The plaintiff had granted the first defendant an unconditional Power of Attorney, which it is alleged was used by the defendants to raise money upon the security of the land. It is alleged that the plaintiff and defendant had made unequal contributions to the acquisition and upkeep of the land . The plaintiff sought an order for sale of the land in terms of section 119 of the Property Law Act(cap 130).The defendants filed statement of defence opposing the reliefs sought.
   
3. The first defendant, in his affidavit in support of the application for leave to appeal out of time states that the defendants have been prejudiced by the striking out of the action. It is stated that attempts were being made to comply with the Master's order, to file the Affidavit verifying list of documents. The Affidavit verifying list of documents was filed on 27 May, 2009, upon receipt of the copies of the documents from ANZ Bank on the same day. It is further stated that the delay was caused through the court administration system since there was no Master appointed and the parties were trying to negotiate a settlement .
   

The plaintiff, in his affidavit in reply to the affidavit of the first defendant, states that the summons for directions was filed by his solicitors on 1 July, 2008. On 22nd July, 2008, the Master had made order on summons for directions requiring both parties to file their list of documents and an affidavit verifying such list. The affidavit also states that the plaintiff has not substantiated its claim that it was waiting for ANZ to provide copies of the statements requested. It was "clearly a delaying tactic" for the defendants to claim that they were waiting for the documents from the Bank. The affidavit proceeds to state that when the plaintiff had made a request from the ANZ Bank for statements, these were provided to him within a reasonable time .

The plaintiff agrees that it is important to have records of repayment, but the time taken by the defendants was "totally unreasonable". The property in question has been advertised under mortgagee sale and the process of selling them is under consideration by the ANZ Bank.

4. The determination
   

The defendants, in the submissions filed on their behalf concedes that the Master has powers to make Unless or pre-emptory orders and to award costs, in terms of Order 59 of the High Court Rules .

The defendants primary ground of complaint is that despite this power, a defence could be struck out without a hearing on merit. The defendants, in their submissions, have cited the case of Birkett v James, (1977) 2 All ER 801 .

The locus classicus of Lord Diplock in Birkett v James expounds the principles to be applied in a striking out application at page 805 as follows:

"The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g. disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2)(a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party." (emphasis added)

The principles expounded by Lord Diplock has been restated by the Court of Appeal of Fiji in Pratap v Christian Mission Fellowship, (2006) FJCA 41 and Abdul Kadeer Kuddus Hussein v Pacific Forum Line Limited,(Civil Appeal No. ABU 0024 PF 2000S).

In the present case, the defendants had defaulted in filing affidavit verifying list of document, in terms of the Master's order. There was a deliberate default and "disobedience to a peremptory order of the court". The first of Lord Diplock's conditions in Birkett v James, (supra) applies.

The Supreme Court Practice 1988,Vol 1, pg 439 "White Book" provides

"Contumelious default – By this is meant deliberate default in compliance with a peremptory order of the Court or, perhaps, conduct amounting to an abuse of the process of the Court...A peremptory order is one which makes clear to the other party, either from its terms or from the circumstances in which it was made, that exact compliance with no further argument, is required by the Court within a stated time and indicating expressly or by implication, that default will incur serious consequences".(footnotes omitted)

In Marcan Shipping v Kefalas, [2007] EWCA Civ 463; (2007) 3 All ER 365 at 369, Moore-Bick LJ declared:

"In order to ensure that its process is not subverted so as to become an instrument of injustice every procedural system must place at the disposal of the court the power to manage proceedings before it, if necessary by imposing sanctions on litigants who fail to comply with its rules and orders. The ultimate sanction, of course, is to dismiss the claim or strike out the defaulting party's statement of case. A well –recognised way of imposing a degree of discipline on a dilatory litigant is to make what is known as an 'unless order' by which a conditional sanction is attached to an order requiring performance of a specified act by a particular date or within a particular period"

In Hytec Information Systems Ltd v Coventry City Council,(1997)1 WLR 1666 it was held that where there has been non-compliance with a peremptory order, "a sufficient exoneration will almost inevitably require that (a defaulting party)satisfies the court that something beyond his control has caused his failure to comply with the order," per Ward LJ (with whom Auld LJ and Lord Woolf MR agreed), at pages 1674 to 1675 .

The reason given by the defendants is that they could not finalise their list of documents, since the first defendant was awaiting documents from ANZ Bank. The plaintiff has quite correctly pointed out that the defendants have not substantiated their case, in this regard. The plaintiff's solicitors, in their reply dated 8th December, 2008, to the solicitors for the defendants, (which is attached to the first defendant's affidavit in support) has noted that there was no evidence that a formal request was made to the Bank for the necessary documents. As Mr Muaror, counsel for the plaintiff, submitted at the hearing, the defendant did not make any application for an extension of time to file the Affidavit verifying list of documents.

In my judgment, no satisfactory explanation has been given for the failure to comply with the "unless order". As Roskill J stated in Samuels v Linzi Dresses Ltd, (1981) QB 115 at pg 126 "orders are made to be complied with and not ignored".

That brings me to the application for leave to appeal out of time. It is conceded that this application to set aside has been made after a considerable time . The summons for leave to appeal out of time was filed on 6th October, 2010. The Unless Order was made on 18th March, 2009, and the consequential Order was made on 30 April, 2009.

The answer for the delay was that the "defendant was still hopeful that they could get the requisite documents because it was going to be necessary for the next stage".

In Director of Public Prosecutions v Jikar Ali, (1975) 21 FLR 115, it was held that a substantial reasons would need to be advanced before an enlargement of time would be granted.

The Privy Council in Ratnam v. Cumaraswamy, (1964) 3 All E.R. 933 at p.935 stated:

"The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation".

In the present case, I find no valid ground for granting the application for leave to appeal out of time exists. I find the explanation given by the defendants unacceptable.

The grant of leave to appeal out of time is entirely a matter for the discretion of the Court. The application for leave to appeal out of time and stay of execution of the Master's order is declined. The plaintiff is entitled to costs summarily assessed in a sum of $ 2000 payable by the defendants.

7th December, 2012

A.L.B.Brito-Mutunayagam
Judge