Naim Engineering Construction (Fiji) Ltd v A.R Quarry & Concrete Ltd [2013] FJHC 563; HBC182.2012 (25 October 2013)

IN THE HIGH COURT OF REPUBLIC FIJI
WESTERN DIVISION
AT LAUTOKA

CIVIL JURISDICTION

Civil Action No. HBC 182 of 2012

BETWEEN:

NAIM ENGINEERING CONSTRUCTION (FIJI) LIMITED a duly incorporated limited liability having its registered office situated at Lot 26 Main Street, Savusavu.
Plaintiff

AND:

A. R QUARRY & CONCRETE LIMITED a limited liability company having its registered office at Kennedy Avenue, Nadi.
Defendant

Mr R. Singh for the Plaintiff
Ms L Tabuakoro for the Defendants
Date of Hearing: 26 September 2013
Date of Ruling: 25 October 2013

RULING

Introduction

[1] This is an interlocutory summons without supporting affidavit filed on 12 July 2013 by the Defendant to strike out action (the summons). The summons has been filed pursuant to O. 18 r.18 of the High Court Rules 1988 (HCR). The summons seeks the following orders:

1. THAT the action against the Defendant be dismissed as it discloses no reasonable cause of action against the defendant;
   
2. Costs on a solicitor indemnity basis;
   
3. Any further or other order or relief as this Honourable Court may deem fit in the circumstances.
   

[2] On 13 August 2013 the Court directed the Plaintiff to file and serve affidavit in response within 14 days and the Defendant to file affidavit in reply thereafter within 14 days and the matter was set down for hearing on 26 September 2013. The Plaintiff neither filed affidavit in opposition nor objection as directed by the Court. When the matter was taken up for hearing on 26 September 2013, counsel for the Plaintiff made an application to adjourn the hearing to another date. Mr. R. Singh, counsel for the Defendant vehemently objected to the matter being adjourned as the application for adjournment was made at the eleventh hour and he was not informed beforehand of the application for adjournment. The Court turned down the application for adjournment as it was made without any sufficient ground and proceeded with the hearing. The Court heard oral arguments advanced by both counsels. Moreover, the Defendant has filed a written submission as well but the Plaintiff did not.

Factual background

[3] The Plaintiff brought this action by Writ of Summons filed on 20 August 2012 against the Defendant claiming, inter alia, judgment in the sum of $12,618.43 and damages for the breach of contract. At the same time the Plaintiff also filed an ex parte notice of motion seeking an injunctive order to restrain the Defendant from presenting or proceeding with the winding up petition or advertising the same against the Plaintiff until further orders of the Court. The ex parte notice of motion was heard before Justice Y I Fernando on 24 August 2012 and orders in terms of the ex parte notice of motion were granted.

[4] The Defendant filed acknowledgement of service of writ of summons on 07 September 2012. The Defendant did not file statement of defence. Instead, they filed the summons to strike out action.

The Law

[5] HCR Order 18 rule 18(1), which provides as follows:

"18.-(1)The court at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that-

1. It discloses no reasonable cause of action or defence, as the case may be; or
   
2. It is scandalous, frivolous or vexatious; or
   

100. It may prejudice, embarrass or delay the fair trial of the action; or
     

4. It is otherwise an abuse of the process of the court;
   

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

(2) No evidence shall be admissible on an application under paragraph (1) (a).

(3) This rule shall, so far as applicable, apply to an originating summons and a petition as if the summons or petition, as the case may be, were a pleading" (Emphasis added).

[6] Counsel for the Defendant brought to my attention and cited the decided case of Paulo Malo Radrodro vs SioneHatuTiakia& others, HBC 204 of 2005. In that case, the High Court exhaustively explained the principles, citing several case authority, that are applicable to the exercise of jurisdiction under HCR Order 18 rule 18 application:-

"The principles applicable to applications of this type have been considered by the Court on many occasions. Thosne principles include:

(a) A reasonable cause of action means a caution of action with some chance of success when only the allegations and pleadings are considered – Lord Pearson in Drummond Jackson v British Medical Association [1970] WLR 688.

(b) Frivolous and vexation is said to mean cases which are obviously frivolous or vexations or obviously unsustainable – Lindley Li in Attorney General of Duchy of Lancaster v L.N.W Ry [1892] UKLawRpCh 134; [1892] 3 Ch 274 at 277.

(c) It is only in plain and obvious cases that recourse would be had to the summary process under this rule – Lindley MR in Hubbuck v Wilkinson [1898] UKLawRpKQB 176; [1899] Q.B 86.

(d) The purpose of the Courts jurisdiction to strike out pleading is two fold. Firstly is to protect its own processes and scarce resources from being abused by hopeless cases. Second and equally importantly, it is to ensure that it is a matter of justice, defendants are permitted to defend the claim fairly and not subjected to the expense inconvenience in defending an unclear or hopeless case.

(e) "The first object of pleadings is to define and clarify with position the issues and questions which are in dispute between the parties and for determination by the Court. fair and proper notice of the case an opponent is required to meet must be properly stated in the pleadings so that the opposing parties can bring evidence on the issues disclosed– ESSO Petroleum Company Limited v Southport Corporation [1956] A.C 218 at 238" – James M Ah Koy v Native Land Trust Board & Others – Civil Action No. HBC 0546 of 2004.

(f) A dismissal of proceedings "often be required by the very essence of justice to be done"...... – Lord Blackburn in Metropolitan – Pooley [1885] 10 OPP Case 210 at 221 – so as to prevent parties being harassed and put to expense by frivolous, vexatious or hopeless allegation – Lorton LJ in Riches v Director of Public Prosecutions (1973) 1 WLR 1019 at 1027".

[7] HCR Order 6 Rule 2(1) deals with indorsementof claim. The rule provides that:

"2. - (1) Before a writ is issued it must be indorsed –

(a) With a statement of claim or, if the statement of claim is not indorsed on the writ, with a concise statement of the nature of the claim made or the relief or remedy required in the action begun thereby;"

(b) ...;

(c) ..."

[8] The counsel for the Defendant drew indulgence of the Court to the Supreme Court Rules, 1999 (SCR), at paragraph 6/2/3 that provides as follows;

"Where the claim arises out of a contract, the endorsement should state the date of the contract (whether oral or written), between whom made and the nature of the claim or the relief or the remedy arising there under....... where the obtaining of an injunction or receiver is a substantial object of the action, the claim should be endorsed on the writ" (Emphasis is added).

Endorsement of Claim

[9] The writ of summons filed by the Plaintiff on 20 August 2012 has in it an endorsement of claim, which states as follows:

"The Plaintiff Company claims the sum of $12,618.43 being the money due and owing by the Defendant Company to the Plaintiff Company as the Defendant Company failed to supply the quarry product as per contract for which the Plaintiff Company paid for to the Defendant Company.

Further the Plaintiff Company suffered loss and damages due to the Defendant's breach of contract as it had to hire the services of another contractor to supply the said quarry product.

The Plaintiff Company by its solicitors issued notice dated 22nd June 2012 attaching account reconciliation requesting them to pay the sum within seven days but the Defendant Company had either neglected and/or refused to pay the said sum and/or reply to the said letter"

Discussion and decision

[10] By the interlocutory summons the Defendant seeks to dismiss the writ of summons on the basis that it does not disclose a reasonable cause of action. This application has been made under HCR O.18 r.18 (1). Pursuant to this rule the Court at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that it discloses no reasonable cause of action. The Court will not and must not admit any evidence in deciding as to whether any pleading discloses a reasonable cause of action under HCR O.18. r. 18 (1) (a). Because HCR O.18 r. 18 (2) specifically states that:

"No evidence shall be admissible on an application under paragraph (1) (a)".

[11] The Defendant's application to strike out is based under HCR O.18 r.18 (1) (a). Therefore the question is purely one of law as to whether the indorsement in the writ of summons filed by the Plaintiff would disclose a reasonable cause of action against the Defendant.

[12] Basically, the Plaintiff claim is based on a contract. The writ of summons is indorsed with a claim only. It states that the money due and owing by the Defendant Company to the Plaintiff Company as the Defendant Company failed to supply the quarry product as per contract for which the Plaintiff Company paid for to the Defendant Company.

[13] It should be noted that the indorsement does not provide sufficient particulars with regard to the contract specially the date, the nature and terms of the contract and whether the Defendant were under obligation to supply the quarry product to the Plaintiff. Significantly, since the claim arises out of a contract the indorsement should state the date of the contract (whether oral or written), between whom made, and the nature of the claim or the relief or the remedy arising thereunder. These particulars are required by SCR, 1999 (6/2/3). None of these particulars has been provided in the indorsement filed by the Plaintiff.

[14] I was puzzled as to why the Plaintiff did not file a summons to amend their statement of claim albeit they had ample opportunity to do so. The Plaintiff filed its writ of summons on 20 August 2012. The summons to strike out the writ is filed on 12 July 2013. There was almost a year for the Plaintiff to make an application to amend the writ. Oral application, in the course of the argument, would not suffice. There need to be a written application to amend the writ with proposed amendments annexed. It is hard for the Court to consider any amendment to the statement of claim or indorsement without a proposed amendment. In addition, the Court was not in a position to form its view whether the proposed amendment disclosed a reasonable cause of action.

[15] In my judgment, the indorsement the writ of summons carries does not disclose a reasonable caution of action with some chance of success when only the allegations and pleadings are considered.

[16] For these reasons, I am of the view that the writ of summons filed by the Plaintiff with indorsement only discloses no reasonable cause of action against the Defendant. I therefore proceed to dismiss the whole claim of the Plaintiff on that basis with costs summarily assessed at $1,250.00.

Orders

The writ of summons (whole claim) filed by the Plaintiff on 20 August 2012 is dismissed and struck out with the costs of $1,250.00 payable by the Plaintiff to the Defendant within 14 days.

M H Mohamed Ajmeer
Acting Master

At Lautoka