Narayan v Bray [2014] FJHC 310; HBC198.2011 (7 May 2014)

IN THE HIGH COURT OF FIJI AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 198 of 2011/L

BETWEEN:

BIMAL VIMLESH NARAYAN of Meigunyah, Nadi, Clerk
PLAINTIFF

AND :

REENA KUMARI BRAY of Lami, Central Division, Fiji, Domestic Duties
DEFENDANT

Appearances: Mr Anil T Singh for Plaintiff
Mr Chand for the Defendant

Ruling

Introduction
1] When this matter was mentioned before me on 21st March 2014 defendants Counsel informed court that written submission have been filed in respect of the main application and sought a date to file submissions on the application to stay of proceedings in this matter and consolidating of this action with Action No 78 of 2013.

2] The application to stay and consolidating the actions were made by the defendant by summons dated 17th May 2013.

3] On the application of the defendants counsel I have granted 2 weeks time to file defendants written submission, seven days from filing the same a date for the plaintiff to file written submissions in reply and fixed the hearing for 14th May 2014.

4] Subsequent to fixing the matter for hearing as aforesaid the defendants legal firm addressed letter dated 1st April 2014 to the Deputy Registrar of this court informing that the firms solicitor Mr Naidu will be engaged in the Fiji Court of Appeal, Suva for the hearing of Civil Appeal ABU 16 of 2007 on the 14th May 2014 which date was granted by the Court of Appeal on 28th March 2014 and therefore to mention this matter to be called earlier to enable parties to fix a new suitable date for hearing.

5] This matter was mentioned in Court on 23rd April 2014 on the said application made by defendants law Firm and the Junior Counsel for the defendant had made a request to consolidate this matter with Action No 78 of 2013. The counsel who appeared for the plaintiff has objected to this application and vacation of the hearing date.

6] Considering the submissions made by both parties I have made an order that the hearing date to stand and no order in respect of the application to consolidate the actions was made.

7] This matter was mentioned again in court on 1st May 2014 on an application by the defendants counsel. When the matter was mentioned on 1st May 2014 the junior Counsel appearing for the defendant submitted to court that the consolidation application should be heard first. He also made a request to vacate the Hearing date as his Senior Counsel has to appear in the Court of Appeal on 14th May 2014. Counsel for the plaintiff objected to both application and submitted to court that if the applications are allowed it will delay the hearing of the main matter.

8] Both counsels filed written submission with leave of court on the applications made by the defendant.

Consolidation Application
9] Civil Action HBC 198 of 2011 is brought by way of originating summons with affidavit in support seeking an order for vacant possession against the defendant. Civil action 78 of 2013 is filed by the defendant in this matter (198 of 2011) against the plaintiff in this matter where the defendant is seeking to the following orders:

a) To set aside the terms of settlement dated 4/10/2011 for fraud. Alternatively.

b) To interpret and give effects to the terms of settlement dated 4/10/2011.

Alternatively

c) To vary the terms of settlement to give effect to the intention of the parties.

10] It is evident from the pleadings of HBC 198 of 2011 and HBC 78 of 2013 that both matters are in respect to the same property and HBC 78 of 2013 relates to a settlement reached between the parties in prior Action No HBC 81 of 2006.

11] Considering the facts stated in the pleadings of both actions, I am of the view that the application to consolidate the two actions must be considered first as both actions are filed in respect of the same property and initiated as a result of a transaction relating to the said property.

Vacating the Hearing date

10] The defendants counsel has moved to vacate the hearing date informing court that the Court of Appeal has fixed the hearing date of civil appeal No ABU 0016 of 2007 on 14th May 2014.

11] The annexed Notice sent to the defendants counsel by the Court of Appeal is dated 10 April 2014, many days after fixing this matter for hearing. As such the defendants counsel cannot be held responsible for an act which is beyond his control.

12] In view of the above, I accept the submission of the defendants counsel that he is in a difficulty to retain another counsel at this stage and also that the clients do not agree to do so due to the complex nature of the case.

13] In considering all of the above, I make the following orders:

a) The application to consolidate Action No 78 of 2013 with this action and the application to stay all proceeding in this matter until determination of civil action No 78 of 2013 to be taken first.

b) Hearing date fixed for 14th May 2014 to be vacated.

c) New hearing date for the above mentioned application for consolidation of Actions and stay of proceedings in this action to be fixed.

d) No costs.

L.S.Abeygunaratne
Judge

07/05/2014