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Taveuni Estates Ltd v NBF Asset Management Bank [2005] FJHC 373; HBC0452R.2005S (22 December 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 0452 OF 2005

Between:

TAVEUNI ESTATES LIMITED
Plaintiffs

- and -

NBF ASSET MANAGEMENT BANK
1st Defendant

MARIE CHAN
2nd Defendant

THE REGISTRAR OF TITLES
3rd Defendant

THE ATTORNEY GENERAL OF FIJI
4th Defendant

Counsel: Mr. M.A. Khan for the Plaintiffs
Mr. V. Mishra for the 1st & 2nd Defendants
Ms. N. Karan for the 3rd & 4th Defendants

Date of Hearing: 14th December 2005
Date of Ruling: 22nd December 2005

RULING

[1] Taveuni Estates Limited filed this action on the 5th of September 2005. They claimed:

“1. A declaration that it (Taveuni Estates) has complied fully with the terms of Clause 13 of the Deed of Conveyance (refered to in the pleadings and dated the 2nd of June 1995) and that the first defendant has no claim of right to the forty (40) lots refered to in annexure 4 of the Deed of Conveyance.

2. The declaration that the second defendant had no grounds for signing and lodging the caveats. (These are caveats lodged by the second defendant in respect of the lots).
   
3. A declaration that the third defendant had no grounds for registering the caveats.
   
4. An order that the first defendant withdraw the caveats or, in the alternative, an order that the third defendant cancel the caveats.
   
5. Special damages in the amount of two million dollars.
   
6. General damages.
   
7. Costs.
   
8. Such other relief as this honourable court deems just.”
   

[2] The first and second defendants have lodged statements of defence and replies have been filed thereto.

[3] On the 7th of October 2005 the first defendant filed a summons to strike out the claim. The second defendant did the same on the 19th of October. The grounds are that the claim discloses no reasonable cause of action, it is scandalous, frivolous and or vexatious, it may prejudice, embarrass or delay fair trial of the action and it is an abuse of the process of the court.

[4] I have before me the affidavit of Ambika Prasad filed on the 7th of October in support of the first defendant’s summons and the affidavit of Marie Chan filed on the 19th of October in support of the second defendant’s summons.

[5] I have affidavits of Peter John Bolton Stinson filed on 18th of November, 5th of December and 12th of December. There is a further affidavit of Ambika Prasad filed on 29th of November. I have the written submissions of the two defendants and the plaintiffs in relation to the strike out application. I have also heard oral argument.

[6] The first defendant’s argument can be summarised as follows. There is already an existing action between these parties, namely 0543 of 2004. In that action this first defendant is plaintiff and the plaintiff is the first defendant. That action concerns the same deed as the one in this action, namely the one dated the 2nd of June 1995. In particular that action hinges around Clause 13 of the agreement.

[7] Reference is made to the case of Yat Tung Investment Company Limited v. Dao Heng Bank Limited and Another [1975 Appeal cases page 580]. The first defendants argue that it is an abuse of process of the court to raise in subsequent proceedings matters which could and should have been litigated in earlier proceedings. They quote the following passage from page 590 where Lord Kilbrandon says “but there is a wider sense in which the doctrine may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings. The locus classicus of that aspect of res judicata is the judgment of Wigram V.C. in Henderson v. Henderson [1843] EngR 917; [1843] 3 Hare 100, 115 where the judge says:

“... where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

[8] “The shutting out of a “subject of litigation” – a power which no court should exercise but after a scrupulous examination of all the circumstances – is limited to cases where reasonable diligence would have caused the matter to be earlier raised; moreover, although negligence, inadvertence or even accidents will not suffice to excuse, nevertheless “special circumstances” are reserved in case justice should be found to require the non application of the rule.”

[9] Counsel for the first defendant avers that the plaintiff has put forward no special circumstances. He continues that an examination of the earlier action shows quite clearly that all the subject matter of this claim could have been brought in that earlier one as a counterclaim.

[10] Further, the first defendant argues that the very fact of making the second defendant a party in these proceedings makes it difficult if not impossible for her to act as the first defendants’ solicitor in those earlier proceedings. She is the solicitor on record, they say, for the first defendants in those earlier proceedings where they are the plaintiffs.

[11] Counsel for the second defendant argues that she is the solicitor on record in those earlier proceedings. The lodging of the caveats was nothing more than a solicitor acting on the instructions of a client and as such it is entirely wrong for any proceeding to be brought against her in these circumstances.

[12] The plaintiffs reject these arguments. They say it is not within the scope of the earlier case to have brought the matters which form the substance of this one. There is nothing in the second case which could form the subject matter of a counterclaim in the earlier case. They say that the very course of that earlier case has precluded any such claim and in those circumstances the only alternative was to bring this one.

[13] The plaintiffs accept that the second defendant in this case was acting as the solicitor of the first defendant when the caveats were lodged. However, they say there is a difference between an employee of the first defendant lodging the caveats and a solicitor acting on their behalf. There has to be, within the affidavit supporting the lodging of the caveats, a statement that the person making the affidavit avers the allegations to be true or reasonably believes that is so. They say that this statutory declaration has the same effect as one made under the Statutory Declarations Act of 1970. They say there is a triable issue concerning the second defendant.

[14] The Statement of Claim in Action 0543 of 2004 and the first defendants’ defence and counterclaim thereto are exhibits A and B of Ambika Prasad’s affidavit of the 7th of October. The amended statement of claim is to be found at annexure 1 of the affidavit of Peter Stinson dated 18th of November. Various other surrounding orders and documents are exhibited.

[15] I have considered those pleadings carefully and the affidavits and supporting documents in this case. In my judgment I can see no reason why the subject matter of the claim in this case, 0452 of 2005 against the first defendants could not and should not have been brought in those proceedings.

[16] The same agreement is being talked about. The same actions and clauses are in dispute. The consequences of the parties’ actions cover the same ground.

[17] In those circumstances, I find that the plaintiffs’ action against the first defendants in this case is an abuse of process. Accordingly I strike out the claim of the plaintiffs against the first defendants.

[18] It is not disputed that when the caveats were lodged by the second defendant she was doing so as solicitor for the first defendants. In these circumstances, I cannot see that this action against the second defendant does anything other than cause real difficulties for the first defendants in their legal representation in the earlier action. Accordingly I strike out the plaintiffs’ action against the second defendant herein.

[19] Although the third and fourth defendants have not specifically applied for the claims against them to be struck out, it necessarily follows from the rulings I have made that there is nothings left to litigate against these two defendants. Accordingly the plaintiffs’ claim against the third and fourth defendants is struck out.

[20] The entire case in Civil Action HBC0452 of 2005 is accordingly dismissed. Costs must necessarily follow these events. I do not consider it economic to hold a further hearing for the argument of costs. I will make an assessment. I order the plaintiffs to pay assessed costs of $900.00 each to the first and second defendant and $450.00 each to the third and fourth defendant.

(R.J. Coventry)

JUDGE