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Taveuni Estates Ltd v NBF Asset Management Bank [2012] FJHC 1364; HBC287.2007 (9 October 2012)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action HBC No. 287 of 2007

BETWEEN:

TAVEUNI ESTATES LIMITED
Plaintiff

AND:

NBF ASSET MANAGEMENT BANK
First Defendant

AND:

KAWAKAWADAWA (FIJI) LIMITED
Second Defendant

Appearances: Mr Peter Knight for the plaintiff
Ms Marie Chan for the first defendant
Mr V. Prasad for the second defendant
Date of hearing: 28th September, 2012

RULING

Mr P Knight, counsel for the plaintiff moves for the discontinuance of this action against the 1st and 2nd defendants, in terms of his summons dated 4 February, 2011 and 12 June,2012 respectively.

The first defendant

At the commencement of the arguments, Ms Marie Chan, counsel for the first defendant stated that the first defendant has no objection to the discontinuance of the action against1st defendant, subject to the payment of costs. She invites court to the summons to strike out filed by the 1st defendant on 2 August, 2007.Accordingly, I made order ex tempore on 28th September, 2012, that the action against 1st defendant be struck out, upon payment of costs by the plaintiff to the 1st defendant. However, for the reasons set out below, I have set aside this order made by me.

The second defendant

Mr Knight submitted that the plaintiff makes this application for discontinuation of this action against the 2nd defendant, in terms of Or 21 of the High Court Rules. He stated further that the 1st defendant has no issue in this regard.

The objections advanced by Mr Prasad to the discontinuance of this action against the 2nd defendant are as follows. He submitted that Justice Calanchini (as he then was), in a connected action HBC 543 of 2004: NBF Asset Management Bank vs Taveuni Estates Limited had made order on 19 November, 2010, that this present action, HBC No 287 of 2007, be stayed pending judgment in HBC 543 of 2004. The plaintiff, in the meantime, has filed a separate case 142/2012 against the 2nd defendant on the same issue. The 1st defendant has not been made a party to that action. This was not disputed by Mr Knight.

Mr Prasad pertinently pointed out that consequently, the 2nd defendant has to unnecessarily face a multiplicity of litigation .More importantly, the other case 142/2012 has been filed by the plaintiff against the 2nd defendant on the same issue, to circumvent the order made in NBF Asset Management Bank vs Taveuni Estates Limited,which had stayed the proceedings in the case before me.

Mr Knight, in his response, argued that in NBF Asset Management Bank vs Taveuni Estates Limited,it was ordered that the action before me be stayed, while the plaintiff now seeks to discontinue that action.

In my view, it is evident that the plaintiff is seeking to discontinue this action against the 2nd defendant, in order to thwart the stay made by Justice Calanchini (as he then was), in HBC 543 of 2004, and proceed with case no 142/2012 filed against the 2nd defendant, in respect of the same issues. To my mind, this constitutes an abuse of the process of court. An action cannot be discontinued, when an order has been made for the stay of that action. For the aforesaid reason, I make order under Or 21 r.3 of the High Court Rules, declining the discontinuation of this action against the 2nd defendant.

On a closer perusal of the orders made in NBF Asset Management Bank vs Taveuni Estates Limited, (that was made available to me by Mr Prasad), I now find that Justice Calanchini (as he then was) had stayed the action in the present proceedings against both the 1st and 2nd defendants. In the light of that order, I set aside the order made by me on 28 September, 2012, as an order made per incuriam and I disallow the plaintiff to discontinue this action against the 1st defendant as well.

Order

I refuse the application of the plaintiff for discontinuance of this action against the 1st and 2nd defendants with costs summarily assessed in a sum of $ 1500 payable by the plaintiff to the 2nd defendant, within 14 days of this Ruling.

9th October, 2012
A.L.B. Brito-Mutunayagam
Judge