"... if two or more defendants are parto the same action, and it d it appears to the Court that the joinder of ... parties, as
the case may be, may embarrass or delay the trial or is otherwise inconvenient, the Court may order separate trials or make such
other order as may be expedient."
In Payne v. British Time Recorder Co. (1921) 2 K.B.1 Scrutton L.J. said of the U.K. equivalent of Order 15 r.4 at p.16:
"... you must look at the language of the rules andtrue them liberally, and thnd that where there are common questions of law
or fact involved in different causes of actions, you should include all parties in one action, subject to the discretion of the Court,
if such inclusion is embarrassing, to strike out one or more of the parties.
It is impossible to lay down any rule as to how the diion of the Court ought to b to be exercised. Broadly speaking, where claims
by or against different parties involve or may involve a common question of law or fact bearing sufficient importance in proportion
to the rest of the action to render it desirable that the whole of the matters should be disposed of at the same time the Court will
allow the joinder ... subject to its discretion as to how the action should be tried."
Is there therefore in this case any 'common question(s) of law or fact'/b> in the plaintiff's clai claims against the defendant and against the defendant's wife, which is of sufficient importance as to render it desirable that both claims should be dealt with together
by way of a summary proceeding for possession of land?
Is regard the relief soughtought by the plaintiff, namely, vacant possession of the land in question, is indeed 'common'no > 'common questions of law or fact' in the plaintiff's claims albeit that it might be said that both defendants are occupants of the premises. Certainly none was clearly raised in counsel's submissions
nor does any inevitably arise from the plaintiff's affidavits.
In the case of the defendant's wife, her occupation of the premises is undoubtedly based upon a 'yearly tenancy' which expressly provides that it shall be determined only 'by breach by the tenant' and/or 'by re-entry by the landlord'. [See: Clause 4(g) & 4(h).]
In my considered opinion such an agreement may not bermined by a mere 'notice to quit' as the plai plaintiff purports to have done nor, having regard to the yearly nature of the tenancy, would a fortnight's notice be sufficient. [See: Section 89(2) Property Law Act.]
Furthermore, having regard to a tenant's equitable right to obtain relief against forfeiture and the statutory restrictions on a lessor's
right to forfeit a lease as contained in Section 105 of the Property Law Act, there is not the slightest doubt in my mind that the summary procedure for possession which is the nature of the plaintiff's present
action against the defendant, is wholly unsuited to the resolution of any claim(s) he may have against the defendant's wife (as a lessee of the property), and in the circumstances, the joinder of the defendant's wife would be both 'embarrassing' and 'inconvenient'.
Needless to say the plaintiff's letter of 14th May 1996 'abandoningNOT disclaiming) the lease' of which the company is the lessor (NOT lessee) and wt the Court's prior leave to do so, is at best, of doubtful validity having regard to the clear terms of Section 316 of the Companies Act 1983.
In In re The Nottingham General Cemetery Co. (1955) 1 Ch.D 683,Wynn-Parry J. describedribed the statutory right of a liquidator to disclaim, in the following terms at p.695:
"The right to disclaim is a right conferred on the liquidator, as such, by , by Section 323 of the Companies Act, 1948 - a right
which did not exist prior to 1929. He exercises it by writing under his hand, and he can exercise it only in relation to property
which in effect has ceased to be an asset and has become a liability."
In the present case it is interg to observe that the lease which the plaintiff (as liquidator) seeks to disclaim isim is not the head lease of which the company is the lessee, but the sub-lease voluntarily entered into, of which it is the lessor.
The application is accord refused with costs.
1"> D.V. Fatiaki
JUDGE
At Suva,
18th Ju996.
Hbc0121j.96s
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