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Karan v Melbourne Place Ltd [2004] FJHC 382; HBC0032.1994L (2 March 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0032 OF 1994L

BETWEEN:

JAI KARAN
Plaintiff

AND:

MELBOURNE PLACE LIMITED
a limited liability company having its registered office at Lautoka
Defendant

Counsel for the Plaintiff: Dr. Sahu Khan with Ms. Sahu Khan
Counsel for the Defendant: Mr. K. Kumar

Date of Hearing & Judgment: 2 March 2004

EXTEMPORE JUDGMENT

The plaintiff having filed a Writ of Summons on the 12th of February 2004 wherein he seeks to have the orders made by consent on the 20th of January 2004 rectified, set aside discharged or rescinded on the basis of alleged mistake and/or misrepresentation, then seeks by Notice of Motion filed on 12th February 2004, a stay of the consent order and ancillary relief.

The defendant by Summons filed on 16 February 2004 seeks an order that the plaintiff’s action be struck out.

The matter HBC0301 of 2003 came before the court on 20 January 2004, the proceedings seeking relief under section 169 of the Land Transfer Act after submissions from counsel for both parties, a discussion ensued which resulted in the then counsel for the defendant in those proceedings (the plaintiff in these proceedings) consenting to orders requiring that he vacate the property within 3 months.

The plaintiff now says that he only consented to orders requiring that he vacate the property if he did not pay the sum of Thirty Three Thousand Dollars ($33,000.00) within 3 months and that if payment was made he would be entitled to remain.

The Law appears clear that the only facility for setting aside a judgment, even one entered by consent, is by the bringing of a fresh action – Ainsworth v. Wilding [1896] UKLawRpCh 42; 1896 1 Ch. 673 and Deo Kumari v Bhagat Ram [1999] FJHC [14 October 1998.

The court may set aside a judgment entered by consent where mistake is proven – Huddersfield Banking Co. Ltd. v. Henry Lister & Son Ltd. [1895] 2 Ch. p. 273.

This is so even when the plaintiff was represented by counsel - Gatti v. Shoosmith [1939] 3 All ER at 916.

In considering whether or not to grant the plaintiff’s motion, the court must consider the evidence and the issues in the same way as set forth by Lord Diplock in American Cyanamid v Ethicon [1975] UKHL 1; [1975] A.C. 396.

The court can look only at the untested affidavit evidence of the parties. On this evidence alone there is a serious question to be tried. The only person, it would appear who knows if he was mistaken or not is the plaintiff. It may be when his evidence is tested, it is found wanting but that is for another time.

For these reasons I am of the opinion that the first order sought in the plaintiff’s motion should be granted.

The Defendant’s Strike Out Action

The defendant asks the court to strike out the plaintiff’s action on the grounds that the statement of claim does not disclose a reasonable cause of action; it is frivolous and vexatious; and an abuse of the process of the court.

Order 18 Rule 18(2) of the High Court Rules provides that no evidence shall be admissible on such an application.

It is therefore necessary for the court to determine the summons by looking at the pleadings alone. For the summons to succeed it must be “plain and obvious” – Hubbuck & Sons Ltd v Wilkinson, Heywod & Clark Ltd [1898] UKLawRpKQB 176; [1899] 1 Q.B. 86:

“The jurisdiction is to be sparingly exercised and only in a clear case where the court is satisfied that it has all the requisite material to reach a definite and certain conclusion” – Electricity Corporation Ltd v Geotherm Energy Limited [1991] NZLR.

For the reasons stated earlier I cannot be satisfied, based on the untested affidavit evidence of the plaintiff, that the court has “all the requisite material to reach a definite and certain conclusion” and for this reason the defendant’s summon must fail.

Having found as I have, it is not necessary to address the other issues argued on the Motion and on the Summons.

The Orders of the Court therefore that I propose are: -

1. The order made on 20 January 2004 in Action No. 301 of 2003L is stayed pending the determination of this action and/or until further order of the court;
   
2. The defendant’s summons is dismissed;
   
3. Costs of the Motion and of the Summons to be costs in the cause;
   
4. The defendant to file a defence within 14 days from today;
   
5. The plaintiff has liberty to reply within further 7 days;
   
6. All other procedural steps to be waived by consent;
   
7. Writ of Summons to be entered for trial at the first opportunity.
   

JOHN CONNORS
JUDGE

AT LAUTOKA
2 March 2004