IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0107 OF 2002

BETWEEN:

SURYA DEEP SINGH
(father’s name Jaswant Singh)
of Tuvu, Ba in the Republic of Fiji, Businessman but now of
63 Gallipoli Parade, Pascoe Vale South, Victoria, Australia
PLAINTIFF

AND:

PRADEEP SINGH
(father’s name Jaswant Singh)
of Tuvu, Ba but now of Lautoka in
the Republic of Fiji, Company Director.
DEFENDANT

G P Shankar & Co for the Plaintiff
S B Patel & Co for the Defendant

Date of Hearing: 1 December 2005
Date of Ruling: 16 December 2005

FINAL RULING OF FINNIGAN J

I have before me an application by Summons by the Defendant that the Statement of Claim (as amended) be struck out on the grounds that it is scandalous, frivolous and vexatious, and that it may prejudice the fair trial of this action.

In this action the Plaintiff seeks to recover from the Defendant half of a sum of money said to have been taken by the Defendant. The Defendant submits that the foundation of the claim is a pleading in the Statement of Claim that the Plaintiff and the Defendant were 50/50 shareholders in a limited liability company and that thus he is a 50/50 owner of funds banked by the company. The Defendant submits that this fundamental claim arose for decision in proceedings brought by the Defendant in the County Court of Victoria at Melbourne Australia, and was decided. The judgment delivered in the County Court at Melbourne considered and rejected the Plaintiff’s claim to a 50/50 shareholding in the company. The Defendant therefore submits that the issue has been litigated and cannot be tried again. He submits that with rejection of that claim the whole of the Plaintiff’s present claims collapses and within the terms of the High Court Rules O.18 r18 (which are used above) should be struck out.

The Pleadings and the County Court Judgment

The relevant parts of the Plaintiff’s fifth and final amended Statement of Claim are as follows;

3.	The Plaintiff then in May 1986 at the Defendant’s request resigned his teaching position and became an equal partner/equal shareholder/director of Integer Computing (Fiji) Limited as promised by the Defendant.

4.	That in or about May 1986 the Plaintiff was admitted, accepted and made an equal partner/shareholder with the Defendant in Integer Computing (Fiji) Limited. Initially each the Plaintiff and the Defendant had 45% shares but shortly it was increased to 50% each.

5.	That as from May 1986 the Plaintiff discharged his duties and functions as partner/shareholder and Director of Integer Computing (Fiji) Limited. The Plaintiff had all the power and authorities equal and or same as the Defendant in respect of all transaction dealings and or matters relating to and or connected with Integer Computing (Fiji) Limited.

…………………………………….

9.	That money was firstly deposited in the bank account of Integer Computing (Fiji) Limited with Hong Kong Shanghai Banking Corporation Limited and later transferred into the personal joint accounts of Plaintiff and the Defendant with the Banks aforementioned. The funds so deposited in the joint Bank accounts of Plaintiff and Defendant belonged to Plaintiff and Defendant in equal shares.

The original Statement of Claim and commencement of this action were filed in 2002. The Plaintiff and the Defendant are brothers. In 2003 the Defendant commenced proceedings in the County Court at Melbourne against the Plaintiff and a third person who is another brother. In that action the Defendant sought a declaration that he was part owner of a residential property in Melbourne, which was registered in the names of the Plaintiff and the other brother. The two brothers defended that action on the footing that they had each provided (about) half of the purchase price from their own funds. The Plaintiff (“Surya”) pleaded a defence in that action and gave evidence in support of it during the trial. His pleadings were specific and I set them out from the unchallenged copy that was supplied to me.

(d)	As to the balance of the purchase price, namely the amount of $180,860.75, this amount was paid by the first defendant (Surya) on or about 3 September 1990 to S & Z (solicitors for the vendors) on behalf of the vendor of the land:

Particulars

(i)	In or about the late 1987/early 1988 the first defendant (Surya) applied to migrate to Australia

(ii)	It was a condition of the first defendant (Surya) obtaining a visa to migrate to Australia that he transfer to Australia the sum of at least $184,000.00 (“the condition”)

(iii)	In order to satisfy the condition in or about early 1988 the first defendant requested (“the request”) the plaintiff (Pradeep) to transfer monies, in the amount of $150,000 from the first defendant’s (Surya’s) share of monies held in a bank account by Integer Computing (Fiji) Limited (“Integer Fiji”) with the Hong Kong and Shanghai Banking Corporation ( “HSBC”) in Hong Kong (“ the Hong Kong account”) to a passbook account held with the Australian and New Zealand Banking Group
 ( “ANZ”), Nicholson Street Branch bearing number 
788807175 ( “the ANZ passbook account” ):

(iv)	The plaintiff (Pradeep Singh) transferred the amount of $150,000.00 less a bank fee of $5.00 making a net transfer of $149,995.00 ( “the transferred amount”) pursuant to the request from the Hong Kong account.

(v)	The plaintiff and the first defendant were, inter alia, signatories on the account held by Integer Fiji with HSBC in Hong Kong.

(vi)	The first defendant had a 50% entitlement to the monies held in Hong Kong in the name of Integer Fiji …..

This pleading and the evidence in support of it were considered in detail by the Judge in the County Court after a 12 –day trial. For brevity I will not cite his findings verbatim, but he found (inter-alia) that the Plaintiff had been an employee and Director of the company Integer Fiji, had been a Director from September 1986 until February 1991 and again in 1993, and at no stage had been a shareholder (this at para. 10). He found that the present Plaintiff had exaggerated the scope and importance of his role in the company (this at para. 12). He found that conversation may have occurred between the Plaintiff and the Defendant about the possibility of the Plaintiff having shares in Integer Fiji but was not satisfied that there was any enforceable agreement reached between them for the Plaintiff to become owner of half or any of the Defendant’s shareholding in Integer Fiji. He held specifically that “a transfer of shares did not occur and the (Plaintiff before me) did not become a shareholder in the company” (this at para. 17). He repeated in different ways his finding that the Plaintiff at no stage owned shares in Integer Fiji and expressed a strong opinion that some of the Plaintiff’s claims (which he had also made in an application to the Australian Government for a visa to migrate to Australia) and statements in this respect were not accurate and had the flavour of over-embellishment of his achievements and ambitions. He said the statements may have expressed what the Plaintiff hoped for, and perhaps expected, but not what was in existence (this at para. 27).

The Submissions

I have written submissions from one person describing himself as Counsel for the Defendant and at the hearing oral submissions from different Counsel, Mr C. Harrison. In brief they urge the Court, in detail and with authorities cited and supplied, to view what I have set out above as decisive.

The submissions for the Plaintiff made by Mr G P Shankar, both written and oral, were succinct but substantial. I should state at the outset I reject his submission that the Melbourne judgment is not effective for the present application because the County Court is an inferior Court and I reject his submission that the cited grounds for the application are inappropriate. The County Court of Victoria I am satisfied is an intermediate court of record in the Victorian hierarchy and that by itself this is sufficient according to the authorities put before me by Defendant’s Counsel. Likewise the grounds of the application are the Terms of Art supplied for present purposes by Order 18 Rule 18 (1) and in many cases including some that were cited to me have been sufficient for applications like the one before me.

There is no dispute that the County Court was a court of competent jurisdiction for the decision which it made.

Mr Shankar’s first substantial submission was that the rules established by the Courts to prevent litigation (and possibility a different decision) of matters already litigated are subject to the other rules that the Courts will strive to do justice and ought not deny a party a hearing or the chance to present his case before the Court. He cited Henderson –v- Henderson (1843) 3 Hare 100 which is cited in Green –v- Weatherill (1929) 2 Ch 213. I read that citation which is set out also in better authority that was cited to me Hoystead & Ors –v- Taxation Commissioners (1925) All ER Rep 56 (P.C). I am bound to say that I did not find in any of these three authorities any pertinent support for this submission.

Mr Shankar relies upon Hardy –v- Elphick (1973) 2 All ER 914 as a good example of a case where a second action was allowed to proceed because an admission in the first action was admissible in the second action. He submitted that the County Court judgment could be put aside and admissions or even denials in the County Court action could be available and used in the present case. There is however in that case nothing to support the proposition that a prior judgment on the fundamental issue can be put aside. 

The next submission was that the subject matter of the present case is different in every way from that in the County Court. In the present case the Plaintiff seeks to enforce a right which he says originated in Fiji out of a company in Fiji. In the Victorian case it was the Defendant who was suing and the remedy sought a declaration about the ownership of Victorian property. Not only that, but Mr Shankar submits that the present Plaintiff was unable to present his case fully in Melbourne because of the expense of taking witnesses there for that trial. He also submits that the issue of ownership of the bank accounts in question was not fully examined in evidence in Melbourne and thus not fully decided in the judgment. 

Mr Shankar relies on what may be his strongest case Brunsden –v- Humphrey (1884) XIV QBD 141 (C.A.). In that case two separate trials were allowed on the same facts on the basis that each trial was on a claim of infringement of a different right. The Plaintiff in that case first sued for property damage and later sued for personal injury both arising from the same wrongful act. I think this case however provides no authority for me because (among other things) the same person was Plaintiff in each case and the Plaintiff established his case on the facts at the first trial, for property damage. Had he failed to establish the factual bases of that claim then principle would have prevented his re-litigating those facts with the hope of a better result in his personal injury claim. In the case before me the Plaintiff was previously a Defendant and the claim on which he relies before me, his positive defence in that case, was rejected on its facts. As for ability to afford witnesses, there is no evidence at all except that until now the Plaintiff, as shown in the previous proceedings, has been at pains to show he is a man of means. Neither is there evidence about who these potential witnesses might be and what might be the facts that they would put before the Court.

Mr Shankar referred me to Gleeson –v- J Wippell & Co Ltd (1977) 3 All ER 54, at page 62 (g). There Megarry V C said that it may be better not to strike out pleadings but rather to leave the matter to be resolved at the trial. He pointed out that the discretion to strike out is discretionary and he counselled caution, saying that an action should be struck out only in plain and obvious cases that are clear beyond doubt. The tautology emphasises what is a well-established principle. I have that principle in mind and can grant the Defendant’s application only if the grounds for it are clear beyond doubt. To the same effect are several other cases which Mr Shankar placed before me. 

Conclusion:

I have been required by Mr Shankar’s submissions to give this application clear and careful thought. The attention paid to the pleadings (amended five times) and the amount being claimed ($2, 000, 000.00) as well as the submissions themselves demanded that. At the end of the day however I find myself unable to hold that the Defendant has a novel issue of fact, which should go to trial. He bases the present claim (and based his defence in the Melbourne case) on his claim that he is the equal half owner of Integer Fiji. I uphold the Defendant’s submission that the Plaintiff is unable to proceed with the present litigation because that fundamental fact upon which he relies has already been decided against him by a Court of competent jurisdiction in proceedings between himself and the Defendant.

This is one of those cases that is clear beyond doubt and I am bound to strike out the Fifth Amended Statement of Claim, and with it the Plaintiff’s action. Costs follow the event and are awarded to the Defendant summarily assessed at $800.00.

D.D. Finnigan
JUDGE

At Lautoka
16 December 2005