Wakaya Ltd v Nusbaum - Application for Joinder [2017] FJHC 828; HBC256.2010 (31 October 2017)

	Home \| Databases \| WorldLII \| Search \| Feedback High Court of Fiji

1.1 On 23 January 2014, Defendants/Counterclaim Plaintiffs (hereinafter referred to as “the Applicants”) filed Application by Summons dated 23^rd January 2014, for following Orders:-

“1. That the 2^ndand 3^rd Counterclaim Defendants, Meliki Togavua Tuinamuana and Renee D.S. Lal respectively shall cease to be parties to this proceeding.

2. That the counterclaim plaintiffs’ be granted leave to add and/or to join new parties to the proceeding namely:

(b) Acting Registrar of Titles and the Attorney General for Fiji as 3^rd and 4^th Counterclaim Defendants.

1.2 The Joinder Application was heard by his Lordship Justice Kotigalage on 12 May 2014, together with Application to Extend Caveat No. 786396 (“Caveat Application”) and Application to file Third Amended Counterclaim (“Amendment Application”).

1.3 On or about 27 June 2015, his Lordship Justice Kotigalage departed the Judicial Department without delivering the Ruling in respect to all three Applications.

1.4 On 10 September 2015, all three Applications were called in this Court when parties informed the Court that they want all Applications to be heard fresh and the Applications were adjourned to 2 October 2015, to fix hearing date.

1.5 On 25 September 2015, and 28 September 2015, the Applicants filed two Applications, one to strike out Defence to Amended Counter-claim (“Striking Out Application”) and the other for Interlocutory Injunction (“Injunction Application”).

1.6 On 2 October 2015, parties were directed to file submissions in respect to Striking Out Application and Injunction Application.

1.7 Injunction Application was heard on 27 November 2015, and Ruling was delivered on 20 April 2016.

1.8 On 22 November 2016, the Caveat Application, Joinder Application and Striking Out Application was heard and adjourned for Ruling on Notice. Due to shortage of time the Amendment Application was adjourned to 24 January 2017, when it was heard and adjourned for ruling on notice.

2.1 On or about 28 May 1969, property comprised and described in Certificate of Title No. 42/4168 was transferred to the Plaintiff.

2.2 On or about 29 May 1973, property comprised and described in Certificate of Title No. 42/4168 was transferred to Pacific Hotels Development Limited (“PHDL”).

2.3 Subsequently PHDL subdivided the property comprised in Certificate of Title No. 42/4168 in stages and sold some lots.

2.4 On 10 February 1983, Certificate of Title No. 42/4168 (excluding lots sold) was transferred to Plaintiff.

2.5 On or about 5 July 1985, Wakaya Limited as Vendor entered into a Sale and Purchase Agreement with one Edward Daniel Nusbaum, for sale of lot known as Lot 94 at that time and subject to proposed plan approved by Director of Town and Country Planning on 18 April 1974.

2.6 On 10 February 1993, lot known as Lot 6 on Deposited Plan No. 4648 (formerly Lot 94) (hereinafter known as “Lot 6”) was transferred to Edward Daniel Nusbaum.

2.7 Subsequently Certificate of Title No. 27687 was issued over Lot 6 in favour of Edward Daniel Nusbaum.

2.8 On or about 19 September 2007, Edward Daniel Nusbaum transferred Lot 6 on Deposited Plan No. 4648, Island of Wakaya, District of Wakaya containing 1 acre 3 roods and 5 perches comprised and described in Certificate of Title No. 27687 (hereinafter referred to as “CT 27687”) to Marsha June Ferre Nusbaum, the 1^st Defendant/1^stCounterclaim Plaintiff pursuant to terms of Marriage Settlement filed in the Cass Country Superior Court in the State of Indiana, USA on 3 April 1998.

2.9 On 14 June 2013, Marsha June Ferre Nusbaum transferred one undivided half share in CT 27687 to Kenneth Chambers the 2^nd Defendant/2^nd Counterclaim Plaintiff subject to the following:-

2.10 On 25 August 2010, Plaintiff, Wakaya Limited filed Writ of Summons with Statement of Claim against the Defendants seeking damages, cost and interest.

2.11 On 25 August 2010, his Lordship Justice Hettiararchchi (as he then was) granted interim injunction in favor of Plaintiff restraining the Defendants/Counterclaim Plaintiffs from entering Wakaya Island or CT 27687.

2.12 On 1 September 2010, Defendants/Counterclaim Plaintiffs applied to expedite the hearing of the injunction Application, for Plaintiff to produce Meliki Togavua Tuinamuana for cross-examination at the inter-parte hearing of Injunction Application and for Plaintiff to consolidate all actions for rate recovery.

2.13 On 6 September 2010, his Lordship Justice Hettiararchchi (as he then was) delivered Interlocutory Judgment whereby he dismissed the application to dissolve interim injunction.

2.14 On 21 September 2010, Defendants filed Appeal in Court of Appeal which appeal was allowed and Court of Appeal made following Orders:-

“(i) The interim injunction granted by Justice Hettiarachchi on 25th August 2010 be dissolved and other orders, if any, in the Court below be set aside.

(ii) Any caveat lodged by the respondent preventing registration of a transfer of 50% interest in Lot 6 to Kenneth Chambers to be removed by Wakaya Limited forthwith.

(iii) The matter be referred to the Master for the assessment of damages suffered by the appellants Kenneth Chambers and Marsha Nusbaum by reason of the respondent's interim injunction.

(iv) The Respondent is to pay the appellant's costs of $3,000.00 in this Court and $ 3,000.00 for their costs below.”

2.15 On 23 September 2010, Defendants/Counterclaim Plaintiffs filed Statement of Defence and Counter-claim.

2.16 On 10 November 2010, Plaintiff filed Reply to Defence and Defence to Counter-claim.

2.17 On 1 December 2010, Defendants/Counterclaim Plaintiffs filed Reply to Defence to Counter-claim.

2.19 On 1 March 2011, Court directed parties to file Affidavit Verifying List of Documents and Copy Pleadings. Since 2^nd Defendant/2^nd Counterclaim Plaintiff was acting in person Pre-Trial Conference was not to be held.

2.21 On 14 March 2011, Plaintiff filed Petition in Supreme Court of Fiji to appeal the Court of Appeal decision.

2.22 On 29 April 2011, Defendants/Counterclaim Plaintiff filed Application to join Counterclaim Defendants.

2.23 On 12 May 2011, the 2^nd Defendant/Counterclaim Plaintiff filed Application for Further Discovery.

2.24 On 24 June 2011, the above Applications were adjourned to 5 July 2011, for Oral Submissions and after which was adjourned to 22 August 2011, for ruling.

2.25 On 27 January 2012, Ruling on Joinder Application was delivered whereby the four counterclaim Defendants were joined as parties to this action.

2.27 On 6 March 2012, the Defendants as Counterclaim Plaintiffs filed claim against the Counterclaim Defendants.

2.28 On 3 April 2012, 1^st, 2^nd and 4^thCounter-claim Defendants filed Statement of Defence to Counterclaim.

2.29 On 9 May 2012, the Supreme Court of Fiji delivered its Judgment and made following Orders:-

(2) The judgment of the Court of Appeal is varied to the effect that the interim injunction issued by the High Court is dissolved and the direction to refer the matter to the Master for assessment of damages is quashed;

(3) The parties are directed to proceed with the trial before the High Court on the substantive matters;

(4) The costs awarded in the Court of Appeal in favour of the Respondents to stand;

(5) There will be no costs regarding this application and the parties to bear their own costs.”

2.30 On 20 April 2012, 1^st, 2^nd and 4^th Counter-claim Plaintiffs filed Application to Strike out Claim against them.

2.31 On 23 May 2012, Defendants/Counterclaim Plaintiffs filed Application to Strike out Plaintiff’s Claim.

2.32 On 25 May 2012, the then Master of the High Court referred the Applications in paragraphs 2.30 and 2.31 of this Ruling to a Judge.

2.34 On 18 September 2012, the Applications were called before his Lordship Justice Kotigalage (as he then was) when his Lordship directed that all applications be placed before him and adjourned the Applications to 5 November 2012.

2.35 On 5 November 2012, his Lordship directed parties to file amended pleadings and for this matter to take its normal course. This matter was adjourned to 10 December 2012.

2.36 On 30 November 2012, 1^st, 2^nd and 4^th Counterclaim Defendants filed Application to Strike Out Amended Counter-Claim against them on the ground that it discloses no reasonable cause of action.

2.37 On 10 December 2012, his Lordship Justice Kotigalage (as he then was) directed parties to file pleadings by 24 December 2012, and adjourned this matter to 6 February 2013.

2.38 On 24 and 27 December 2012, the 3^rd Counterclaim Defendant, 1^st, 2^nd and 4^th Counterclaim Defendants filed Reply to Second Amended Counterclaim and Statement of Defense to the Counterclaim respectively.

2.39 On 31 December 2012, Defendants/Counterclaim Plaintiffs filed Reply to Defense to Counterclaim.

2.40 On 11 January 2013, Defendants/Counterclaim Plaintiffs filed Affidavit Verifying List of Documents.

2.41 On 6 February 2013, parties were directed to file Submissions and this matter was adjourned to 14 May 2013.

2.42 On 14 May 2013, the Court dealt with Defendant’s/Counterclaim Plaintiff’s Application to Strike Out Plaintiff’s claim, when by consent following Orders were made:-

2.43 On 11 November 2013, Defendants/Counterclaim Plaintiffs filed Ex-parte Application to extend Caveat No. 786396 lodged against Certificate of Title No. 42/4168.

2.44 On 18 November 2013, Caveat No. 786396 was extended until further Order of the Court and this matter was adjourned to 28 January 2014.

2.45 On 22 November 2013, his Lordship delivered his ruling in respect to 1^st, 2^nd and 4^th Counterclaim Defendants Application to Strike Out Amended Counterclaim, whereby the Application to Strike out the Amended Counterclaim was dismissed with costs.

2.46 On 28 January 2014, following applications were called before his Lordship Justice Kotigalage (as he then was):-

(i) Application by Defendants/Counterclaim Plaintiffs to join Edward Daniel Nusbaum, Registrar of Titles and Attorney-General of Fiji as Counterclaim Defendants;

Parties were directed to file Affidavits, and the Applications ware adjourned to 7 April 2014.

2.47 On 29 January 2014, Application to Extend Caveat was called before his Lordship when parties were directed to file Affidavits and Applications were adjourned to 7 April 2014.

2.48 On 7 April 2014, the Application to join Edward Daniel Nusbaum, Registrar of Titles and Attorney-General of Fiji as Counterclaim Defendants; Application to Extend Caveat and Application to Amend 2^nd Counterclaim were called before his Lordship Justice Kotigalage (as he then was). Ms Chand appearing for Registrar of Titles and Attorney-General of Fiji informed Court that she has no objection for Registrar of Titles and Attorney-General of Fiji being joined as parties. Mr K. Jamnadas, Counsel for the Plaintiff and 1^st, 2^nd and 4^th Counterclaim Defendants, however, objected to the application for joinder.

2.49 Action against 2^nd and 3^rd Counterclaim Defendants was discontinued by consent with costs in favour of 2^nd Counterclaim Defendant reserved for determination at the conclusion of the substantive matter.

2.50 All these applications were then adjourned to 12 May 2014, for hearing and parties were directed to file Affidavits.

2.51 On 12 May 2014, all the Applications in paragraph 2.46 were heard by his Lordship Justice Kotigalage (as he then was) and adjourned for ruling on notice.

2.52 Since no ruling was delivered by his Lordship this matter was referred to this Court and was called before me on 10 September 2015.

2.53 On 10 September 2015, parties submitted that the Applications be re-heard by this Court and as such all Applications were adjourned to 2 October 2015, for review and fix hearing date.

2.54 On 25 September 2015, and 28 September 2015, the Applicants filed two Applications, one to strike out Defence to Amended Counter-claim (“Strike Out Application”) and the other for Interlocutory Injunction (“Injunction Application”).

2.55 On 2 October 2015, parties were directed to file submissions in respect to Strike Out Application and Injunction Application.

2.56 Injunction Application was heard on 27 November 2015, and Ruling was delivered on 20 April 2016.

2.57 On application by Counsel for Plaintiff, 1^st, 2^nd, 4^th Counter-claim Defendants time for filing of Submissions in respect to Strike Out Application was extended to 11 May 2016, and Reply to Submission to 1 June 2016.

2.58 Remaining four (4) Applications were adjourned to 25 August 2016, for hearing with matter to be called on 20 June 2016, to ensure that all documents are in order for hearing.

2.59 The Applications were next called on 8 July 2016, when Counsel for Plaintiff, 1^st and 4^th Counter-claim Defendants sought time to file Supplementary Affidavit in respect to Caveat Application when leave was granted for them to file Supplementary Affidavit with right of Reply given to Chambers.

2.60 On 25 August 2016, Counsel appearing for Plaintiff, 1^st, 2^nd and 4^th Counter- claim Defendants sought time to file fresh Submissions in respect to Caveat Application in view of Injunction Ruling.

2.61 Hearing date was vacated and parties were directed to file Submissions by 16 September 2016. Plaintiff, 1^st, 2^nd and 4^th Counter-claim Defendants were ordered to pay Chambers cost for the day and all four Applications were adjourned to 22 November 2016, for hearing.

2.62 On 22 November 2016, Joinder Application, Strike Out Application and Caveat Application was heard and adjourned for Ruling on Notice. The Amendment Application was adjourned to 7 December 2016, for mention due to shortage of time.

2.63 On 7 December 2016, this matter was adjourned to 15 December 2016, as Nusbaum just instructed Counsel.

2.64 On 15 December 2016, the Application to file Third Amended Counterclaim for third time was adjourned to 24 January 2017, for hearing.

2.65 On 24 January 2017, Application for Leave to file Third Amended Counter- claim was heard when Counsel for parties made Oral Submissions and the Application for Leave to file Third Amended Counter-claim was adjourned for Ruling on Notice.

3.0 Discontinue of Action against Meliki T. Tuinamuana (2^nd Counterclaim Defendant) and Renee D. S. Lal (3^rd Counterclaim Defendant)

3.1 On 7 April 2014, when the pending Applications were called by Justice Kotigalage parties agreed that action against Tuinamuana and Renee Lal be discontinued subject to cost in relation to Tuinamuana be reserved until final determination of this action.

4.1 On 7 April 2014, Counsel for Registrar of Title and Attorney General of Fiji informed Court that Registrar of Titles and Attorney General of Fiji have no objection for being joined as parties.

4.2 No order for joinder of Registrar of Titles and Attorney General of Fiji was made by his Lordship Justice Kotigalage because Counsel for Respondents informed Court that Respondents objected to joinder Application.

4.3 When this matter was called before me Counsel for Respondents informed Court that their objection on 10 September 2015, for the first time was for joinder of Edward Daniel Nusbuam as a party and not Registrar of Titles and Attorney General of Fiji, and that Registrar of Titles and Attorney General of Fiji were joined as parties by Justice Kotigalage but later stated that, that was not the case and the Registrar of Titles and Attorney General of Fiji were not joined as parties.

4.4 Since Registrar of Titles and Attorney General of Fiji have consented to be joined as partiers and have not filed any Affidavit in Opposition or made submissions opposing the Application to be joined as parties this Court is of the view that they be joined as parties to this action.

“(2) Subject to the provisions of this rule, at any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application-

(a) order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

(i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.

(3) An application by any person for an order under paragraph (2) adding him as a party must, except with the leave of the Court, be supported by an affidavit showing his interest in the matters in dispute or, as the case may be, the question or issue to be determined as between him and any party to the cause or matter.

(4) No person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised.

(5) No person shall be added or substituted as a party after the expiry of any relevant period of limitation unless either-

(a) the relevant period was current at the date when proceedings were commenced and it is necessary for the determination of the action that the new party should be added, or substituted, or

(b) the relevant period arises under the provisions of subparagraph (i) of the proviso to paragraph 4(1)(d) of the Limitation Act and the Court directs that those provisions should not apply to the action by or against the new party.

In this paragraph "any relevant period of limitation" means a time limit under the Limitation Act. (Cap. 35)”

5.2 The Court needs to determine the following in respect to Application to join Edward Daniel Nusbaum as 3^rd Counterclaim Plaintiff: -

5.3 Edward Nusbaum entered in a Sale Purchase Agreement with Plaintiff, Wakaya Ltd on 5 July 1985.

5.4 The Right of Way Easement which Applicant and Edward Nusbaum claim that Dalip Jamnadas certified as correct for purpose of land Transfer Act was registered on 10 February 1993, which is:-

5.6 Edward Nusbaum transferred his interest in Certificate of Title No. 27687 (hereinafter referred to as (“CT 27687”) on 19 September 2007, to 1^st Counterclaim Plaintiff pursuant to matrimonial property settlement and when the transfer was registered following easements and covenant were already registered agent CT 27687:-

Document	Registration Date	Number
Easement Certificate	22 May 1975	162746
Restrictive Covenant	10 February 1993	333584
Right of Way Easement	10 February 1993	333585
Easement Certificate	10 February 1993	333586

5.7 On or about 1^st Counterclaim Plaintiff transferred one undivided half share in CT 27687 to 2^nd Counterclaim Plaintiff.

5.8 Obviously Transfer of CT 27687 to both Counterclaim Plaintiffs were subject to above Easements and Restrictive Covenant.

5.9 Since the Transfer of CT 27687 to Counterclaim Plaintiffs was subject to the Easements and Restrictive Covenant mentioned in paragraph 5.6 of this Ruling, they have full right to those Easements and Restrictive Covenants without the need for Edward Nusbaum to be joined as Counterclaim Plaintiff.

5.10 As stated earlier the property subject to Lot 6 has been transferred to Counterclaim Plaintiffs.

5.11 If Edward Nusbaum still owns the remaining Lots and he is aggrieved and desires to enforce any of his rights in respect to those lots then on basis of legal advice he should file separate proceedings as he has no legal right over Lot 6 (CT 27687).

5.12 After analysing the Affidavit evidence, reading submissions and hearing the parties in person and by their Counsel this court is of the view that:

(i) The question or issues arising out of or connected to the relief/remedies sought can be determined as between 1^st and 2^nd Counterclaim Plaintiffs and Respondents without need of Edward Nusbaum to be joined as Counterclaim Plaintiff;

(ii) Affidavit filed by Edward Nusbaum does not satisfy the Court that he has any interest in the matter which relates to CT 26787;

(iii) Edward Nusbaum no longer has any legal or equable benefit in CT 27867 which is liable to be defeated;

(iv) The cause of action in vested in the 1^st and 2^nd Counterclaim Plaintiffs and not jointly with Edward Nusbaum.

5.13 In view of what is stated in paragraph 5.12 there is no need for this Court to determine the limitation issue.

6.1 It is just and fair that cost in respect to Joinder Application be costs in the cause as prayed for by the Applicants.

High Court of Fiji

Wakaya Ltd v Nusbaum - Application for Joinder [2017] FJHC 828; HBC256.2010 (31 October 2017)