Reddy Construction Company Ltd v Pacific Gas Company Ltd [1980] FijiLawRp 3; [1980] 26 FLR 121 (27 June 1980)

[1980] 26 FLR 121

COURT OF APPEAL OF FIJI

Civil Jurisdiction

REDDY CONSTRUCTION COMPANY LIMITED

v

PACIFIC GAS COMPANY LIMITED

Gould, V.P., Speight, J.A., Spring J.A

10, 27 June 1980

(Practice – Amendments - Primary Rule to Allow)

B. C. Patel for Appellant
A. B. Singh for Respondent

Appeal against decisions given by Judge in Chambers at the Supreme Court in Lautoka refusing application by the appellant (plaintiff) for leave to amend a Statement of Claim The ruling was first declined by Williams, J. (6 July, 1979) and that ruling later confirmed by Dyke, J. (31 August, 1979). The action was for balance of payment due on a building contract. The court did not have before it a copy of the Statement of Claim. The claim was that not all amounts owing had been paid and for substantial short payments. The Architect had not issued any certificates as to these amounts.

The amendment sought in effect was, by the defendant, to allege fraud but without explicitly stating so. Williams, J. refused such an amendment. The amendment allowed was that the Architect was in error in failing to issue certificates; and thereafter that the building was nevertheless completed.

On 31 August the application for the same amendment was made and refused.

Dyke, J. who heard and refused the application considered himself bound by the previous ruling and stated that perhaps plaintiff could have appealed but could not go to another Judge unless circumstances had altered. The court discussed the ruling of Williams, J. this way -

"It was a compromise decision of a Judge giving some concession to enable ventilation of the real cause without prejudicing a defendant with the late raised cry of fraud."

Held: The primary rule was, to allow amendments on terms if this can be done without prejudice to the other side.

Once the date for hearing had been adjourned, the amendment was one which could be allowed. Leave to file amended statement of claim granted.

Cases referred to:

Tildesley v. Harper (1876) 10 Ch D 396.
Shoe Machinery Co. v. Cultam [1896] 1 Ch. 108.
Cropper v. Smith (1884) 26 Ch D 700.
Bradford Third Equitable Building Society v. Borders [1941] 2 All E R 205.
G.L Baker Ltd. v. Medway Building Supplies Ltd. [1958] 1 W L R 1216
Re O. (1971).

SPEIGHT J. A.

Judgment

This is an appeal against decisions given by judges in Chambers at the Supreme Court in Lautoka refusing applications by the appellant (then plaintiff) for leave to amend a Statement of Claim. It is necessary to understand straight away that the matter complained of arose in a slightly unusual way for two judges dealt with the application on separate occasions. Williams J. declined it on 6th July 1979 and for what appears to be a valid reason the matter was again raised on 31st August 1979 before Dyke J. and that learned judge confirmed the previous ruling.

Although therefore the present appeal is worded as being against "the decision of Mr Justice Dyke dated 31st August 1979 refusing leave to amend its Statement of Claim" the history of both hearing needs to be set out in a little detail.

The plaintiff, a building company, sued the defendant (now the respondent) of balance of payment allegedly due pursuant to a building contract. There is no copy of the Statement of Claim in the appeal book but only the proposed amended Statement of Claim but it is possible to glean its contents by reference to other documents. It was issued on 11th January 1979. It apparently recited that the work had been completed and complained inter alia (paragraph 9) that pursuant to the contract the architect was to give monthly progress certificates on which the owner should pay 90% of such sums within seven days of the certificate and parts of the retention would be thereafter paid at certain intervals after a "completion certificate" issued by the Lautoka City Council. Paragraph 12 alleged that the Lautoka City Council had issued its certificate, so had matters proceeded regularly it might have appeared that the architect had also already certified but it seems that this was not so. It was claimed that the defendant had not paid all amounts owing; and the claim was for substantial short payments.

Paragraph 9 of the defendant's Statement of Defence (7th February 1979) reads:

"9. The Defendant admit the contents of paragraph 9 of the Statement of Claim and further says that certification by the Architect was a condition precedent to the Plaintiff right to payments, and says that because the Architect has not certified further payments because of the Plaintiffs default under the agreement, the Defendant is justified in withholding further payments until the certification by the Architect in terms of the building agreement."

In paragraph 12 the defendant alleged that the completion certificate from the Lautoka City Council was obtained by the plaintiff by fraud, the defendant also counterclaimed. The plaintiff on 26th February 1979 filed a Reply and Defence to counterclaim in which it joined issue (inter alia) with paragraphs 9 and 12 of the Statement of Defence.

If we refer back to the challenged paragraph 9 of the Statement of Defence it will be seen that a number of matters were now put in issue:

(a) that certificate by the architect was a condition precedent;

(b) that the architect has not certified further payments;

(c) that the defendant was justified in withholding payments.

In his submissions Mr B.C. Patel for the appellant described this as being a pleading which "required clarification". It was for this purpose, so he claims, that an application was filed on 4th July 1979 for leave to file an amended Statement of Claim. At that stage the Deputy Registrar had already (on 27th April 1979) given a date for a four day hearing to commence on 16th July.