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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION HBC 543 OF 2004
BETWEEN:
NBF ASSET MANAGEMENT BANK
PLAINTIFF
AND:
TAVEUNI ESTATES LIMITED
FIRST DEFENDANT
AND:
THE REGISTRAR OF TITLES
SECOND DEFENDANT
AND:
THE ATTORNEY-GENERAL OF FIJI
THIRD DEFENDANT
Mr J Oswald-Jacobs for the Plaintiff
Mr P Knight for the First Defendant
Ms N Karan for the Second and Third Defendants
DECISION
I have before me two interlocutory applications filed by the Plaintiff. The first application was by way of summons dated 6 April 2010 (the first application) seeking the following orders:
"1 Pursuant to Order 18 Rule 18 of the High Court Rules – an Order that the following paragraphs of the Defendant's Defence and Counterclaim dated 22 February 2010 be struck out: 4, 7, 10, 14, 16, 18, 26, 28, 29, 34, 37, 46, 53, 54, 55, 57 and 58 on the grounds that those paragraphs are variously embarrassing, frivolous or do not disclose a reasonable defence or cause of action, or are an abuse of the process of the court (as the case may be).
2 Further or alternatively to paragraph 1 - an Order that the Defendant's Counterclaim be struck out on the grounds that the Defendant's Counterclaim is embarrassing and an abuse of the process of the Court.
3 Costs.
4 Such further or other order as the Court may deem appropriate."
It was subsequently clarified by Counsel for the Plaintiff that the reference to Defendant in paragraphs 1 and 2 was a reference to the First Defendant and the Summons was amended accordingly. Furthermore, the reference to the Defendant's Defence and Counterclaim was a reference to the First Defendant's Defence to Fourth Amended Statement of Claim and Amended Counterclaim.
The Plaintiff did not file any affidavit material in support of its application.
The second application was by summons dated 27 May 2010 (the second application) seeking the following orders:
"1 Pursuant to Order 18 Rule 18 of the High Court Rules – an Order that the following paragraphs of the Second and Third Defendants' Fourth Amended Statement of Defence dated 7 May 2010 be struck out: 7, 8, 9, 10 and 12 on the grounds that those paragraphs are variously embarrassing, frivolous vexations or do not disclose a reasonable defence.
2 Costs.
3. Such further or other order as the Court may deem appropriate."
The Second and Third Defendants' Fourth Amended Statement of Defence was delivered after service of the Plaintiff's Fourth Amended Statement of Claim.
Again the Plaintiff did not file any affidavit material in support of its application.
Prior to the hearing Counsel for the Plaintiff and Counsel for the First Defendant filed comprehensive submissions. The hearing of the applications took place on 28 July 2010 when Counsel for all parties presented further submissions.
As noted earlier, both applications were made pursuant to Order 18 Rule 18 of the High court Rules. So far as is relevant Order 18 Rule 18 states:
"(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading ... in the action, or anything in any pleading ... on the ground that:
(a) it discloses ... no reasonable defence ...; or
(b) it is scandalous, frivolous or vexations; or
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the Court;
and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.
(2) No evidence shall be admissible on an application written paragraph (1) (a)
(3) ---"
Apart from Rule 18, this Court has an inherent jurisdiction to strike out pleadings which are vexations or frivolous or in any way an abuse of the process of the Court, under which it could deal with all the cases included in the Rule.
So far as the present applications are concerned the Rule can be invoked in respect of the whole or any part of a pleading. An initial requirement is that where the defence is being challenged, the application should be made as soon as practicable after service of the defence.
The First Defendant's Defence was filed on 21 March 2010 and was, presumably, served shortly afterwards. The Plaintiff's summons was filed on 6 April 2010.
The Defence of the Second and Third Defendants was filed on 7 may 2010 and the Plaintiff's application was filed on 27 May 2010. The issue of delay does not arise in this case.
In its first application the Plaintiff seeks an order that the specified paragraphs in the First Defendant's Defence be struck out on the grounds that they are either (a) embarrassing, (b) frivolous, (c) do not disclose a reasonable defence or (d) are an abuse of the process of the Court.
In its second application the Plaintiff seeks an action that the specified paragraphs in the Defence filed by the Second and Third Defendants be struck out on the grounds that they are either (a) embarrassing, (b) frivolous, (c) vexations or (d) do not disclose a reasonable defence.
I propose first of all to set out some general principles that are applicable to each of those grounds and then to consider the two
applications in the order in which they were filed.
In general terms a reasonable defence means a defence with some chance of success when only the allegations in the pleadings are considered.
So long as the Defence or the paragraphs under challenge disclose a defence or raise some question for determination at the trial,
the mere fact that the defence is weak and not likely to succeed is no ground for striking out.
The position in Fiji was clearly stated by the Court of Appeal in National MBF Finance (Fiji) Ltd -v- Buli [unreported civil appeal No 57 of 1998 delivered on 6 July 2000]. In dealing with an appeal from an interlocutory decision striking out the defence and a subsequent entry of judgment, the Court stated at page 2:
"The law with regard to striking out pleadings is not in dispute. Apart from truly exceptional cases the approach to such applications is to assume that the factual basis on which the allegations contained in the pleadings are raised will be proved. If a legal issue can be raised on the facts as pleaded then the Courts will not strike out a pleading and will certainly not do so on a contention that the facts cannot be proved unless the situation is so strong that judicial notice can be taken of the falsity of a factual contention. It follows that an application of this kind must be determined on the pleadings as they appear before the Court. In this case the Judge's task was made more difficult because a considerable amount of factual material was placed before him. We wish to point out that this is inappropriate and undesirable."
The terms "frivolous" and "vexations" are not defined in the High Court Rules. In accordance with the rules of statutory interpretation, those words should be given their ordinary meaning. In the Shorter Oxford English Dictionary frivolous means "of little or no weight or importance, paltry, not with serious attention or (in law, pleading) manifestly futile". Vexatious means "causing or tendency to cause vexation (i.e. something causing annoyance, irritation, dissatisfaction or disappointment) or (legal) actions being instituted without sufficient grounds for the purpose of causing trouble or annoyance to the defendant". I accept that it is only necessary to establish that the pleading be either frivolous or vexations for the Court to exercise its discretion.
A pleading is embarrassing when the other party is placed in the position that he does not know or cannot determine what is alleged in the offending pleading. The party does not know or is in doubt as to how to respond. This will occur when the pleading is unintelligible, vague, ambiguous or too general. The authorities have, over many years, set out clear guidelines for determining what constitutes an embarrassing pleading.
A pleading is usually regarded as an abuse of the process of the Court if it raises an issue that has already been litigated between the parties. In Raijieli Naqarase -v- The Public Trustee of Fiji (1994) 40 FLR 215 Pathik, J observed at page 217:
"I also agree that to institute the present action (civil action 168/94) which is the same as the said action 49/93 and covering the same subject matter is an abuse of the process of the Court."
In applying the various tests contemplated by Order 18 Rule 18 I am mindful of the comments made by Stuart-Smith LJ in Ashmore -v- British Coal Corporation [1990] 2 QB 338 at page 348:
"A litigant has a right to have his claim litigated, provided it is not frivolous, vexations or an abuse of the process. What may constitute such conduct must depend on all the circumstances of the case, the categories are not closed and considerations of public policy and the interests of justice may be material."
In Hunter -v- Chief Constable of the West Midlands Police [1992] AC 529 Lord Diplock, at page 536 said:
"My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any Court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right -thinking people. The circumstances in which abuse of process can arise are very varied; ...".
Although no affidavits were filed by any of the parties in either application, Counsel referred at length to factual issues during the course of their submissions. However considering the summary nature of the two applications before me and in the absence of any factual material in affidavit form I intend to limit myself to a consideration of the pleadings.
However, I also propose to consider a photocopy of a signed deed of conveyance dated 2 June 1995. This deed was made by Taveuni Estates Limited and Stin–Pac Holdings Limited (Mortgagor) (called the Transferors) of the first part and National Bank of Fiji (Mortgagee) (called the Transferee) of the second part. This copy document (hereafter referred to as the Deed) was adduced by consent of the parties.
Turning now to consider the first application. The first paragraph of the First Defendant's Defence that is challenged is paragraph 4. Paragraph 4 is pleading to paragraph 7 of the Plaintiff's Fourth Amended Statement of Claim. Paragraph 7 of the Statement of Claim sets out what the Plaintiff claims to be the relevant terms of the Deed. More particularly paragraph 4 of the Defence is pleading to paragraph 7 (a) of the Claim. Paragraph 7 (a) states:
"7. There were terms of the Deed of Conveyances that:
The First Defendant admitted that the parties had entered into a deed of conveyance dated 2 June 1995 (paragraph 2 of the Defence).
Paragraph 4 states that it "denies" that the Deed conveyed to the Plaintiff any parcel of land listed in Annexure 3 to the Deed.
The Plaintiff is entitled to know the basis of that denial, whether factual or legal. As a result the First Defendant is required to provide by way of amendment, the basis of the denial.
Reference has already been made to paragraphs 7 (a)(i) and (ii) of the Fourth Amended Statement of Claim.
Paragraphs 4 (a) to (f) of the First Defendant's Defence state:
"4. As to paragraph 7 (a) of the Claim the First Defendant denies that the Deed of Conveyance conveyed to the National Bank of Fiji ("NBF") any parcels of land which were listed in Annexure 3 to the Deed of Conveyance and says
(a) the Deed of Conveyance was drafted by G.P Lala & Associates as solicitors for NBF, and
(b) further says that although lots described as Lot 1 on Deposited Plan 7340 and Lot 1 on Deposited Plan 7341 were included in Annexure 3 to the Deed of Conveyance, the wrong certificate of title numbers were assigned to both lots and the areas of both lots were not included, the correct legal description at the time of the land referred to by the Plaintiff as Lot 1 on DP 7340 being part of Lot 1 on DP 4231, part of CT 13527 and the correct legal description at the time of the land referred to by the Plaintiff as Lot 1 on DP 7341 being part of Lot 1 on DP 4477, part of CT 17922
(c) further says that the land referred to by the Plaintiff as Lot 1 on DP 7340 has never had on it a water source and has been and is still used as a rubbish dump and has been described as such for many years ("the Rubbish Dump")
(d) further says that the land referred to by the Plaintiff as Lot 1 on DP 7341 has on it the water source for the supply of water to the whole of Soqulu Estate ("the Water Lot")
(e) further says that it was never the intention of the parties that those lots described in paragraph 7 of the Claim as the "Water Lots" would be transferred by the First Defendant to NBF as one such lot being the Water Lot contained the water source for the whole of the Soqulu Estate from which all of the lots owners on the Soqulu Estate received reticulated water for their use, and the other such lot was used and is still used as a rubbish dump for the benefit of all the lot owners on the Soqulu Estate.
(f) further says that Deposited Plans 7340 and 7341 were, without the authority or knowledge of the First Defendant, lodged for registration and registered on the application of NBF as mortgagee and not as registered proprietor of the land referred to in both Deposited Plans."
It is not disputed that there was a deed of conveyance dated 2 June 1995 and signed by the parties. The Defence raises issues relating to the identity of two of the lots that were included in Annexure 3 to the Deed. The Plaintiff claims that the two lots in paragraph 7 a (i) and (ii) correctly refer to the two lots that are listed in Annexure 3 and that those lots refer to the correct pieces of land. The First Defendant claims that it was not the intention of the parties to include the lots which are described in paragraph 4 (b) of its Defence. In doing so the First Defendant may rely on one or both of two Defences. It can claim that on the true construction of the deed, the two lots in question were not included in the lots listed in Annexure 3. It can also claim that the lots were included in Annexure 3 by mistake.
If the First Defendant relies on a true construction of the Deed then the principles to be applied were clearly set out by Lord Hoffmein in Investors Compensation Scheme Ltd -v- West Bronwich Building Society [1997] UKHL 28; [1998] 1 All ER 98 at 114. In Hassan Din and Another -v- Westpac Banking Corporation (civil appeal No 6 of 2003 delivered on 26 November 2004) the Court of Appeal indicated that those principles were to be applied in Fiji for the purpose of interpreting contractual documents.
If, on the other hand, the First Defendant relies on some mistake, then sufficient facts should be pleaded to enable both the other side and the Court to identify the nature of the Defence.
Needless to say, even if the facts that are pleaded in paragraphs 4 (a) to 4 (f) can be established at the trial, they are in my opinion insufficient to establish a recognized defence to the claim made by the Plaintiff in paragraphs 7 (a) (i) and (ii).
I am mindful that the Plaintiff has now filed a Fourth Amended Statement of Claim which should more accurately be described as a fresh statement of claim. Under these circumstances I am prepared to allow the First Defendant the opportunity to amend paragraph 4 of its Defence to ensure that the issues of construction of the Deed and/or mistake are properly before the Court.
The next challenge to the Defence is in respect of the response in paragraph 7 to paragraph 8 of the Statement of Claim. Paragraph 8 of the Statement of Claim states:
"By reason of the matters referred to in paragraph 7(a) hereof, as and from 2 June 1995, TEL has held the Water Lots on trust for the National Bank of Fiji and AMB, as the case may be."
Paragraph 7 of the Defence states:
"The First Defendant denies paragraph 8 of the Claim and repeats paragraph 4 hereof."
The claim in paragraph 8 is that the First Defendant held the two lots referred to in paragraph 7(a)(i) and (ii) on trust for the Plaintiff. It is a different allegation from that pleaded in paragraph 7(a) although reliance is placed on the matters pleaded in paragraph 7(a). If the First Defendant is relying on its response in paragraph 4 then it needs to ensure that paragraph 4 raises issues challenging the existence of a trust. Alternatively, paragraph 7 should be amended accordingly.
In paragraph 10 of its Defence the First Defendant appears to admit the assertion in paragraphs 11 (b) and (c) of the Statement of Claim. The additional material in the paragraph appears to be the basis for its denial of the allegations contained in paragraphs 11 (d) to (g). If the facts pleaded were established by the First Defendant then an issue arises as to the validity of the claims made by the Plaintiff. The discovery of documents will assist in determining the correctness of each party's assertions. I see no need for any amendment.
Paragraph 14 of the Defence raises the same issue in similar terms as paragraph 4(e) of the Defence. The First Defendant's present Defence to paragraphs 18 and 19 of the Statement of Claim is insufficient for the reasons stated in relation to paragraph 4. The First Defendant is given leave to amend paragraph 14 of its Defence.
Paragraph 21 of the Plaintiff's Statement of Claim states:
"The Water Lots were identified in the Instrument of Transfer by the CT No 28286 and 28202 being the invalid duplicate Certificates of Title"
Paragraph 16 of the Defence states:
"The First Defendant does not admit paragraph 21 of his Claim and repeats paragraphs 4(b) to (f) inclusive hereof.
However on the face of the pleadings it is apparent that the Plaintiff is pleading material in paragraph 21 that did not appear in paragraph 7(a) of its Statement of Claim. There is no reference to CT No. 28286 or CT No 28202 in either paragraph 7(a) of the Statement or paragraph 4 (a) to (f) of the Defence. The pleading in paragraph 16 is not an answer to the allegation in paragraph 21. The First Defendant is given leave to amend paragraph 16.
Paragraph 18 of the Defence is defective in respect of the allegation relating to intention and is to be amended in terms already discussed.
Paragraph 20 of the Defence is to be amended to specify the parent title particulars and the dates of lodgment.
Paragraphs 26, 29, 34 and 37 are meaningless and the reference to "strict proof" in each paragraph is a tautology. The paragraphs are to be amended and the Plaintiff's allegations answered in accordance with the requirements of Order 18 of the High Court Rules. I am unaware of any standard of "strict proof" in civil proceedings.
Paragraph 28 of the Defence is defective for the reasons that have already been stated in relation to paragraph 4. Paragraph 28 is to be amended.
Paragraph 46 is to be amended to state its relevance to the Statement of Claim and also to identify the allegation to which it relates.
The objection to the First Defendant's counterclaim is that it is vexations and an abuse of the process of the Court. The basis of these assertions is that the claims raised in paragraphs 53 to 60 (except paragraph 56) are already the subject of pre-existing litigation being action No. 287 of 2007 (referred to as the "Rates Action") and civil action No. 209 of 2006 (referred to as the "Main Caveat Action").
In action No. 287 of 2007 (the Rates Action) the Plaintiff is Taveuni Estates Limited, the First Defendant in the present proceedings. The First Defendant in the Rates Action is the present Plaintiff, NBF asset Management Bank. The Second Defendant is Kawakawadawa (Fiji) Limited and not a party to the present proceedings.
In the Statement of Claim in the Rates Action the Plaintiff in that action relies on paragraph 6 of the Deed of Conveyance dated 2 June 1995 and claims that NBF Asset Management Bank has breached clause 6. As a result Taveuni Estates Limited claims loss of rates in the sum of $129,168.00 plus interest as at 20 August 2006 and that such loss continues. The Plaintiff also claims damages for failing to comply with clause 6.
In action No 209 of 2006 (the Main Caveat Action) the Plaintiff is Nasau Limited a company that is not named in the present proceedings. The first defendant in the Main Caveat Action is NBF Asset Management Bank, the Plaintiff in the present proceeding. The second defendant in the Main Caveat Action is Taveuni Estates Limited, the First Defendant in the present proceeding.
The writ was issued on 12 May 2006 by Messrs Cromptons on behalf of the Plaintiff. Messrs Cromptons also act for the Taveuni Estates Limited which is named as Second Defendant in the Main Caveat Action and First Defendant in the present proceedings.
Having read the First Defendant's counterclaim in the present proceeding I am satisfied that the Plaintiff in these proceedings is being called upon to meet substantially the same claim he has already answered in the Rates Action. I am also satisfied that the issues raised by the First Defendant in its counterclaim in relation to clauses 7 and 8 of Deed are substantially the same as the issues raised in the Main Caveat Action.
It is prima facie vexations for a party to be called upon to meet in substance and in reality the same claim that has already been made in an earlier proceeding. Generally the Court will stay the second proceeding. Furthermore it is clearly an abuse of process of the Court for a party to commence concurrent proceedings raising essentially the same issues against the same party.
The issue for the Court in the present proceeding is to determine how the issues in dispute between the parties can proceed in the most expeditious manner.
During the course of submissions it was pointed out that the Writ in the present proceedings was issued on 10 December 2004. As a result the present proceedings were issued first in time. I also note that the First Defendant's Defence and counterclaim was filed on 13 May 2005 and was pleading to the Plaintiff's First Amended Statement of Claim filed on 13 April 2005. As a result the First Defendant's initial counterclaim also pre-dates both the Rates Action and the Main Caveat Action.
At this point, one other significant issue needs to be considered. The First Defendant's counterclaim, the Plaintiff in the Rates Action and the Plaintiff in the Main Caveat Action all require either the leave of "the Controller" or the leave of this Court to continue the counterclaim proceedings and the Actions.
This is a requirement under section 43 of the Banking Act 1995 and arises as a result of the NBF Asset Management Bank having been placed under controllership pursuant to section 30 of the Banking Act with effect from 1 April 2007. The Reserve Bank has appointed a Controller in whom management of the Plaintiff has been vested.
On 11 September 2007 the First Defendant filed a summons seeking an order that leave be granted by the Court for it to continue with the counterclaim. The controller had refused leave to the First Defendant to continue its counterclaim proceedings and opposed its application for leave to this Court.
In a written decision handed down on 7 April 2009 the Master of the High Court granted leave to the First Defendant to continue with its counterclaim under section 43(2) of the Banking Act 1995 against NBF Asset Management Bank.
However leave was granted in respect of the First Defendant's counterclaim that was filed with its Defence to the Plaintiff's third
Amended Statement of Claim on 2 August 2006. Counsel for the Plaintiff submitted that the First Defendant will need to seek the leave
of the Controller or of this Court to commence or continue the present counterclaim. Counsel for the First Defendant submitted that
the leave granted by the Master was a general approval to counterclaim and that the First Defendant can proceed with its present
counterclaim on that basis.
In my opinion once leave of the Court has been granted to commence an action or continue proceedings including counterclaim proceedings
under section 43(1) of the Banking Act it must be implied that leave has been given to do so in accordance with the Rules of the Court that prescribe practice and procedure.
In my opinion once leave is granted to continue counterclaim proceedings that were commenced prior to 1 April 2007, that leave applies
to the continuation of the proceedings in accordance with the Rules of the Court. The Rules of the Court clearly permit a counterclaim
to be amended without the leave of the Court before pleadings are deemed to be closed (Order 20 Rule 3). After the Plaintiff had
obtained leave of the Court to file a Fourth Amended Statement of Claim, the First Defendant was able to serve an amended defence
and an amended counterclaim within the time prescribed by the Rules. It would, in my opinion, be an absurdity to require a party
to return to court to obtain leave to continue with the counterclaim proceedings wherever it was sought to amend the counterclaim.
As a result I am satisfied that the First Defendant has leave to continue its counterclaim by way of the amended counterclaim filed
on 23 March 2010 pursuant to the order of the Master dated 7 April 2009.
As a result it seems to me that the most appropriate course of action is to allow the present proceedings to remain on foot and to proceed as expeditiously as possible. I reach this conclusion on two grounds. First, both the Writ and the counterclaim (in its original form) pre-date both the Rates Action and the Main Caveat Action. Secondly, the First Defendant has obtained the leave of the Court to proceed with its counterclaim against the Plaintiff. There will be no delay in that regard. The two subsequent actions should be stayed until judgment in the present action.
The second application challenged the Defence filed by the Second and Third Defendants primarily on the basis that the Registrar of Titles has not pleaded in accordance with the requirements of Order 18. The Plaintiff challenges paragraph 2 of the Defence and correctly points out that the Second Defendant is required to read the Statement of Claim, conduct a search of the records in the Titles Office and then plead to the allegations in paragraph 11(a) – (d) of the Statement of Claim. It is no answer to simply say that the Registrar of Titles has no knowledge of matters that were or ought to have been capable of a substantive response. The paragraph is to be amended so as to comply with the rules.
There is an objection to the manner in which the Second Defendant has pleaded to paragraph 33 of the Statement of Claim. That paragraph commences as follows:
"33 In or about mid 1999 or at some time thereafter Asset Management Bank discovered that."
Paragraph 7 of the Second Defendant's Defence states:
"The Second and Third Defendants cannot admit or deny paragraph 33 of the claim as the Plaintiff knew that it was invalid title."
The first part of paragraph 7 is a valid defence as it is clearly not possible for the Second Defendant to know when the Plaintiff made the alleged discoveries. The second part of the pleading in paragraph 7 is to be deleted as once again it is not possible for the First Defendant to assert what the Plaintiff knew or didn't know. Paragraph 7 is to be amended by deleting the words starting with "as" to the end of the sentence.
The Plaintiff challenges paragraph 8 of the Defence in so far as it purports to plead to paragraphs 34 and 39 of the Statement of Claim.
Paragraph 34 of the Statement of Claim states:
"As a consequences of the matters referred to in paragraphs 8 to 33 hereof, AMB and the Registrar of Titles made repeated requests of TEL that it surrender Certificates of Title 31921 and 28820 to the Registrar of Titles for cancellation."
Paragraph 39 of the Claim states:
"further or alternatively, by reason of the matters set out in paragraphs 8-32 above, TEL and the Registrar of Titles conspired to defraud the National Bank of Fiji or AMB, as the case may be, of the Water Lots."
Particulars are then pleaded.
Paragraph 8 of the Defence states:
"As to paragraphs 34 to 40 of the claim, the defendants have no knowledge of the contents hereof".
The allegations in both paragraphs 34 and 39 are matters that after due enquiry, the Registrar of Titles is obliged to plead to. Paragraph 8 is to be amended by the Defendants to comply with the rules of pleading.
The Plaintiff objects to paragraphs 9 and 10 of the Defence. There are two comments to be made. One concerns the use of the expression "strict proof". The expression has no place in pleading documents. It is a meaningless expression. It raises the question whether strict proof is a higher standard than the "balance of probabilities". There is no such expression to be found in either the authorities or in any textbook on the Law of Evidence.
Secondly, it is apparent that the two paragraphs are in breach of Order 18 Rule 12(3) which, so far as is relevant, states:
"... every allegation of fact made in a Statement of Claim ... which the party on whom it is served does not intend to admit must be specifically traversed by him in his defence ...; and a general denial of such allegation, or a general statement of non-admission of them, is not a sufficient traverse of them."
The requirement to traverse any allegation of fact made by a party in his pleading is set out in Order 18 Rule 12(1).
Paragraphs 9 and 10 are to be amended to comply with the rules and with my earlier observations.
Paragraph 12 of the Defence does not state to which allegation it is pleading. It is vague, ambiguous and as a result embarrassing. It must be amended.
Counsel for the Second and Third Defendants acknowledged the defects in the Defence and urged the Court not to strike out the Defence or the offending paragraphs.
Counsel for the Plaintiff accepted that it is desirable to have all the issues that are in dispute properly identified so that the trial of the action can effectively resolve all outstanding issues. He indicated that he was not applying to have the Defence struck out and did not oppose the Second and Third Defendants filing an Amended Defence.
As a result I make the following Orders:
W D Calanchini
JUDGE
19 November 2010
At Suva
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