Auspacific Construction Co Ltd v Attorney-General [1995] KIHC 4; HCCC 05.95 (19 September 1995)

IN THE HIGH COURT OF KIRIBATI
HCCC 5/95

BETWEEN:

AUSPACIFIC CONSTRUCTION CO. LTD
Appellant

AND:

THE HON. ATTORNEY GENERAL ON BEHALF OF
THE GOVERNMENT OF THE REPUBLIC OF KIRIBATI
Respondent

(BEFORE THE HON R LUSSICK C.J.)

Mr B Berina for the Appellant
Mr D Sims for the Respondent

JUDGMENT ON MOTION TO STRIKE OUT

This is a motion by the Defendant to have certain paragraphs of the Plaintiff’s Statement of Claim struck out as disclosing no reasonable cause of action. In effect, the motion is to strike out the Statement of Claim itself. Additional orders were originally sought but were not argued at the hearing.

The law pertaining to the striking out of pleadings is well settled and most of the following principles can be found either in The Supreme Court Practice (Jacobs) or High Court Practice and Procedure (NZ) (Sims and Cain).

Only if, on the face of the Statement of Claim the statements of facts show that the plaintiff cannot on any view of the facts establish a cause of action can the Statement of Claim be struck out. It must be plain and obvious that the action is one which cannot succeed or is in some way unarguable.

The jurisdiction is to be exercised sparingly and only in extreme cases where the claim is so bad in law that it is impossible in any circumstances for the plaintiff to succeed.

"The Court will not permit the plaintiff to be driven from the judgment seat except where the cause of action is obviously bad and almost incontestably bad".(Fletcher Moulton LJ in Dyson v. AG [1910] UKLawRpKQB 203; (1911) 1 KB 410 at 419).

On a motion to strike out the court is required to accept the statements of fact in the Statement of Claim as if they had been established and is not required to decide questions of credibility or to determine disputed questions of fact. The facts with which the court has to deal in deciding whether any reasonable cause of action is disclosed are what is said in the Statement of Claim.

The Defendant filed two affidavits in support of the motion but I ruled that they could not be read and counsel, rightly, did not press the issue. On a motion of this nature where there is a dispute as to factual matters affidavit evidence cannot be adduced to resolve it. It is not permissible to try the action on affidavit.

I do not propose to set out the Plaintiffs Statement of Claim in detail. Suffice it to say that the claim is in contract and that the Statement of Claim sets out certain express and implied terms relied upon, pleads performance by the Plaintiff and breach by the Defendant, and claims damages accordingly.

The Defendant argues that no reasonable cause of action has been disclosed because the Plaintiff did not comply with a condition precedent and the Defendant did not sign a formal agreement.

However, there is nothing on the face of the Statement of Claim to show that it was the intention of the parties not to be bound until a formal agreement had been signed by both of them. Nor can it be ascertained from the face of the Statement of Claim that the said condition was a condition precedent. Whether or not there was a condition precedent is clearly in issue and is a matter for evidence, as is the alleged existence and breach of implied terms.

Counsel for the Applicant/Defendant relies on the following authorities: Chitty on Contract 25th Edition 1620, Re Sandwell Park Colliery Co. & Ors v. The Company (1928) All E.R. 651, and Spengler Management Ltd v Tan (1995) NZLR 120. Perhaps it would have been more appropriate to argue these authorities after the evidence was in, but I do not consider any of them to be relevant to the present circumstances.

I find that the Plaintiffs claim is arguable.

Accordingly, I make the following orders:

1. Motion to strike out is dismissed.

2. Defendant is to pay the Plaintiffs costs of the motion, such costs to be taxed if not agreed upon.

THE HON R LUSSICK
Chief Justice

(19/09/95)