Mobil Oil of Australia Ltd v Liapari Ltd [1994] SBHC 6; HC-CC 180 of 1991 (25 March 1994)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 180 of 1991

MOBIL OIL OF AUSTRALIA LTD

-v-

LIAPARI LIMITED

High Court of Solomon Islands
(Muria CJ.)

Hearing: 24 March 1994
Ruling: 25 March 1994

F. Waleilia for Plaintiff
A. Radclyffe for Defendant

RULING

MURIA, CJ: Mr. Radclyffe has applied for leave to amend his Client's Defence and counter-claim.

In support of his application Mr. Radclyffe submitted that having been instructed just recently, he was of the view that the Amended Defence and Amended Counter-claim filed by the former solicitor for Defendant. were not in order as they did not uncover the real issues between the parties.

Mr. Radclyffe argued that it is important that the real issues are put before the Court. The Amended Defence and Amended Counter Claim now proposed to be filed, a copy of which is given to the Court would do this.

Mr. Waleilia had been instructed to oppose the application. He submitted that the now proposed amendment is not don in good faith.

The application had also been opposed on the ground that the amendment came too late, two and half years after the Defence was filed. He also contented that the Court could not be satisfied as to the truth and substantiality of the proposed amendment. Mr. Waleilia argued that an Affidavit evidence is necessary to satisfy the Court of the truth and substantiality of the proposed amendment.

Both counsel concede that should the Court grant leave in this case, the costs occasioned by this application must be paid by the Defendant.

There is power in the Court to grant leave to amend pleadings at any stage of the proceedings. See Order 30 Rule 1. Of course if the amendment is useless or immaterial the Court will refuse to allow it.

In this case I must agree with Mr. Radclyffe that the proposed amendment is brought with the intention of ascertaining the real issues between the parties and avoid complications in the proceedings. This ground has been accepted by the Courts as good reason to allow amendment to pleadings. See Nottage -v- Jackson [1883] UKLawRpKQB 145; 11 QBD 627

I agree with Mr. Waleilia that the Court will not allow an amendment to pleadings if the party applying is acting mala fide. But in this case there is nothing to show to the Court that the Defendant was acting in bad faith by proposing the amendments to its Defence and Counter Claim. I feel leave to amend should always be granted unless the Court has been satisfied that the party applying was acting in bad faith. As Bramwell, LJ said in Tildesley -v- Harper, 10 Ch D pp. 396, 397:

"My practice has always been to give leave to amend unless I have been satisfied that the party apply was acting mala fide, or not, by his blunder, he had done some injury to his opponent which could not be compensated for by costs or otherwise."

The other consideration the Court will also look at is the injustice caused to the other side and how that injustice can be remedied. Where an amendment, if allowed, would cause injustice to the other party, the Court may refuse leave to amend. Nevertheless if injustice be caused by allowing the amended then the Court has power to order the party applying to compensate the other party by costs. The power is contained in Rules 12 and 13 of Order 30.

As I have said the effect of the proposed amendment would be to bring out the real issues between the parties, so no real injustice is caused except that the Plaintiff will now have to be put to the trouble of taking further instructions to reply to the proposed amendment more than two and half years later. For that, I feel the Plaintiff must be compensated by costs.

Having considered those matters together with the submissions by Counsel the Court grants the Defendant leave to amend its Defence and Counterclaim.

The Defendant must pay the Plaintiff's costs occasioned by this application.

(G.J.B. Muria)
CHIEF JUSTICE