IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 183 of 2014

BETWEEN:

ROBERT EDWARD LOWRES of the Cove, Denarau Islands, Nadi,
PLAINTIFF

AND:

DEO CONSTRUCTION LIMITED a company incorporated in Fiji and having its registered office at Lot 11, Denarau Industrial Subdivision, Nadi, P O Box 3100, Nadi, Fiji
DEFENDANT

Mr. DavneshPrakash Sharma for the Plaintiff.
Mr. Adish Kumar Narayan for Defendant.

Date of Hearing: -20th November 2015. 
Date of Ruling : -08th April 2016. 

RULING

(A) INTRODUCTION.

1. The matter before me stems from the Defendant’s Summons for “Specific Discovery” dated 21st April 2015, made pursuant to Order 25 and Order 24, rules (7), (10) and (12) of the High Court Rules ,1988 and the inherent jurisdiction of the Court , seeking the grant of the following Orders;

(a) The Plaintiff do within 14 days disclose by affidavit whether copies of income and financial statements including balance sheets/profit & loss/depreciation schedules returned for all income received by the Plaintiff from all sources in Fiji and abroad for the financial years 2013 and 2014 together with copies of notices of Assessments of Tax in respect thereof in Fiji or abroad inclusive for the said years pertaining to the Plaintiff is or has at any time been in his possession, custody or power and if he parted with them, when he parted with any of them and what has become of them AND FOR A FURTHER ORDER that the Plaintiff do within 14 days thereafter make available such documents or copies of them for inspection on behalf of the Defendant.

(b) The Plaintiff, as a director and/or shareholder of Relcorp (Fiji) Limited, do within 14 days disclose by Affidavit whether copies of full financial statements including balance sheets/profits & loss/depreciation schedules filed by Relcorp (Fiji) Limited (the guarantor) with the Fiji Revenue and Customs Authority or its predecessor for the financial years 2013 and 2014 together with copies of Notices of Assessments of Tax for the said periods inclusive for the said years pertaining to the Relcorp (Fiji) Limited is or has at any time been in his possession, custody or power and if it parted with them, when it parted with any of them and what has become of them AND FOR A FURTHER ORDER that the Plaintiff do within 14 days thereafter make available such documents or copies of them for inspection on behalf of the Defendant.

(c) The Plaintiff, for himself and as a shareholder and/or director of Relcorp (Fiji) Limited) do within 14 days disclose by affidavit whether copies of all documents evidencing the grant of loans, including but not limited to, all loan offers, agreements, charges and mortgages in place with any financial institutions whether in Fiji or abroad given to or by the Plaintiff and Relcorp (Fiji) Limited evidencing availability of funds to purchase of CT 39941 Lot 7 Naisoso Island from January to September 2014 are or have at any time been in their possession, custody or power and if they parted with them, when they parted with any of them and what has become of them AND FOR A FURTHER ORDER that the Plaintiff do within 14 days thereafter make available such documents or copies of them for inspection on behalf of the Defendant.

(d) The Plaintiff, for himself and as a shareholder and/or director of Relcorp (Fiji) Limited, do within 14 days disclose by affidavit whether copies of all bank statements in respect of any account with any bank or other financial institution whatsoever in Fiji or abroad for the period January 2013 to December 2014 pertaining to the Plaintiff and Relcorp (Fiji) Limited inclusive for the said years are or have at any time been in their possession, custody or power and if they parted with any of them, when they parted with any of them and what has become of them AND FOR A FURTHER ORDER that the Plaintiff do within 14 days thereafter make available such documents or copies of them for inspection on behalf of the Defendants.

2. The Summons is supported by an affidavit sworn by Mr. Vimal Deo, the Managing Director of the Defendant Company.

3. The Summons is strongly resisted by the Plaintiff on the basis of relevance and that “Relorp” is not a party to the action. The Plaintiff filed an affidavit in opposition opposing the application for “Specific Discovery” followed by an affidavit in reply thereto.

4. The Plaintiff and the Defendant were heard on the Summons. They made oral submissions to Court. In addition to oral submissions, the Counsel for the Plaintiff and the Defendant filed a careful and comprehensive written submission for which I am most grateful.

(B) THE FACTUAL BACKGROUND.

1. What are the circumstances that give rise to the present application? 

2. To give the whole picture of the action, I can do no better than set outhereunder the main averments/ assertions of the pleadings.

3. The Plaintiff is a businessman and is Director and Shareholder of “Relcorp (Fiji) Ltd”.

4. The Defendant is a duly registered Company engaged in the business of construction.

5. With that short introduction, let me set out the relevant facts. The Plaintiff in his Statement of Claim pleads inter alia;

Para 

3. The Plaintiff and the Defendant entered into a Sale and Purchase Agreement [“SPA”] on 15th February 2012, whereby the Plaintiff agreed to purchase the property comprised in Lot 82 in the subdivision known as Naisosovou Island and described more particularly as Lot 7 on DP 10178 in Certificate of Title No. 39941 together with a new Residence to be built by the Defendant in accordance with the plans and specifications provided by the Plaintiff together with all other terms and conditions set out therein.

36. On 7th July 2014 the Plaintiff paid the deposit sum of $242,499.47.

37. On 8th July 2014 the Defendant’s Solicitors sent a Formal Settlement Notice by way of a letter whereby the Defendant’s Solicitors sought to send an executed Transfer to the Plaintiff and further asserted that settlement was to take place at the Titles Office on 19th July 2014 or within 3 business days of the grant of the CGT Clearance Certificate from FRCA whichever was later.

38. On 9th and 16th July 2014 the Defendant’s Solicitors requested for a stamped Transfer. The Transfer was not stamped.

39. On 16th July 2014 the Defendant’s Solicitors sent a Settlement Statement stating that the amount required to settle was $2,540,769.5

40. On 18th July 2014 the Plaintiff’s Solicitors wrote to the Defendant’s Solicitors and in summary stated that:-

[i] The Plaintiff had been assured that a payment of $2,414,954.79 would be inclusive of VAT. The Transfer Document had to be amended to reflect this fact.

[ii] The Plaintiff required confirmation that there had been no variations made to the Original Plans supplied under cover of letter dated 19th June 2014.

[iii] The Plaintiff required confirmation that the property had not been occupied and/or used as a dwelling house by the Defendant or its agent after completion.

[iv] The Plaintiff wanted to inspect the property.

[v] The Defendant’s Solicitors were not allowed to deduct their feed from the Deposit.

41. By letter of 21st July 2014 the Defendant’s Solicitors responded in summary the Plaintiff:-

[i] Refused to amend the Transfer saying that the Plaintiff had agreed that VAT would be payable if chargeable.

[ii] Confirmed that the Residence had been occupied by the Defendant.

[iii] Confirmed that no further construction inspections would be entertained.

[iv] Stated that the Date for Settlement had expired.

43. By letter dated 2nd September 2014 the Defendant through its Solicitors gave notice that it was rescinding the SPA and forfeiting the Deposit under clause 17.1 (b) of the SPA.

44. It is alleged by the Plaintiff that the Defendant had itself breached the SPA in the following manner:

Particulars of Breach

[i] It failed to practically complete the Residence in accordance with the plans and specifications supplied by the Plaintiff.

[ii] It failed to complete the Residence in accordance with the standard of finishing expected from a reputable Builder.

[iii] At an earlier inspection undertaken of the Residence the Plaintiff informed the Defendant that landscaping was not completed, the swimming pool was not operating and other defects were highlighted to the Defendant and the Defendant was supposed to come back and confirm whether these defects had been attended to and fixed by the Defendant. It failed to do this.

[iv] In June 2014 it refused to accede to the Plaintiff’s request to have the property independently inspected by Mr. Adrian Sofield at 1.00 am on 6th June 2014 to verify compliance with Building Standards before Settlement was to take place.

[v] It procured a Completion Certificate from the Local Rural Authority on 21st February 2014 when there was no Engineer’s Final Certificate in existence at the time to allow for such a Certificate to be issued. An Engineers Report was only issued on 16th June 2014 and the Engineers, engineered Designs only inspected the Residence on 5th June 2014.

[vi] It sought settlement from the Plaintiff within 45 days from 29th May 2014 whilst knowing or having known that the Practical Completion Certificate had not been properly obtained from the Local Rural Authority.

[vii] The Defendant allowed the Residence to be occupied by its Directors and their families in breach of the SPA.

[viii] The Defendant sought to impose a Completion Date on the Plaintiff without complying with the Plaintiff’s request to have the Residence inspected independently by Mr.Sofield, such request being a reasonable request having regard to the circumstances.

[ix] The Defendant sought to rescind the SPA pursuant to clause 17.1 (b) whilst knowing and ought to have known that its actions in doing were illegal, oppressive and unconscionable having regard to all relevant circumstances.

[x] The Defendant sought to levy VAT on the Purchase Price when the Defendant and/or its Solicitors had assured the Plaintiff that VAT was not chargeable on the sale.

45. By letter dated 5th September 2014 the Plaintiff through his Solicitors refuted the claims made by the Defendant’s Solicitors and put the Defendant’s Solicitors on notice that any purported forfeiture of the Deposit was disputed.

47. By letter dated 22nd September 2014 the plaintiff’s Solicitors responded to the letter of 8th September 2014 and also gave notice on behalf of the Plaintiff pursuant to clause 18.1 of the SPA to terminate the said Agreement and sought a refund of its Deposit.

48. The Defendant has refused the request to refund the Deposit and the Plaintiff brings this action seeking a refund of his Deposit.

The Plaintiff Claims the followings;

Para 1.	1. A Declaration that the Plaintiff was entitled to terminate the Sale and Purchase Agreement pursuant to clauses 5.3 and 18.1

2. An Order that the Sale and Purchase Agreement has been properly terminated by the Plaintiff.

3. An Order that the Defendant and/or its Solicitors return the Plaintiff’s Deposit in the sum of $242,499.47 [less dishonour fees] together with interest on the said amount at a rate ordered by the Court computed from 22nd September 2014 until payment is made.

4. Costs of this action on an indemnity basis.

6. The Defendant in its Statement of Defence alleges that;

Para 	36.The Defendant admits it has not refunded the deposit as it was Forfeited pursuant to the terms of the Sales and Purchase Agreement and denies the Plaintiff is entitled to it in view of the breach on its part to complete the transaction contemplated by the Sale and Purchase Agreement.

COUNTER CLAIM

37. The Defendant re-iterates the contents of paragraphs 1 to 36 herein and avers that the Plaintiff wrongfully and in breach of the Sale and Purchase Agreement dated 15th February, 2012 failed to complete the Sale and Purchase of all that property comprised in Certificate of Title Number 39941 being Lot 7 on DP 10172 together with the improvements thereon.

PARTICULARS OF BREACH

[i] Failed to take a transfer of the property in accordance with the Sale and Purchase Agreement;

[ii] Failed to pay the Stamp Duty or to Stamp and return a copy of the transfer to enable the Defendant to obtain Capital Gains Tax clearance to complete the transaction;

[iii] Failed to pay the balance of the purchase price as required;

[iv] The Defendant will rely on the particulars of breaches as more fully set out in the correspondence from the Defendant’s Solicitors referred to in the Statement of Claim and the Defence herein.

38. By reason of the failure to complete the Defendant has been put to loss, damage and expense.

Particulars

[i] The Defendant has lost interest on the monies it would have received and/or the benefit of re-investment of the purchase price in other ventures contemplated by the Defendant and known to the Plaintiff full particulars of which will be provided at the trial hereof.

[ii] The difference in the price obtainable on a resale full particulars of which will be provided at the trial hereof.

[iii] Costs and expenses to date and of resale full particulars of which will be provided at the trial hereof.

The Defendant prays that;

 Para	1. The Plaintiff’s claim be dismissed with costs.

2. Damages

3. Interest on damages or monies found due to the Defendant under the common law and/or the Law Reform (Miscellaneous Provisions) Death and Interest) Act at such rate and for such a period as the Court deems just..

4. Costs.

5. Such further or other orders as this Honourable Court deems just and expedient.

(C) THE STATUS OF THE SUBSTANTIVE MATTER

(1) The action was instituted by the Plaintiff on 11th November 2014 by way of Writ of Summons and Statement of Claim.

(2) The Pleadings were closed on 15th February 2015.

(3) The Plaintiff and the Defendants have filed their affidavit verifying list of documents.

(4) The matter is at the Discovery stage. 

(D) THE PRINCIPLES OF DISCOVERY

(1)	Provisions relating to “Specific Discoveries” are contained in Order 24, rule 7 of the High Court Rules.

Order 24, rule 7 provides;

Order for discovery of particular documents (O.24, r.7)

7.-(1) Subject to rule 8, the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is, or has at any time been, in his possession, custody or power, and if not than in his possession, custody or power, when he parted with it and what has become of it.

(2) An order may be made against a party under this rule not withstanding that he may already have made or been required to make a list of documents or affidavit under rule 2 or rule 3.

(3)	An application for an order under this rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this rule has, or at some time had, in his possession, custody or power the document, or class of document, specified or described in the application and that it relates to one or more of the matters in question in the case or matter.

(2)	Discovery can be sought at any stage of a proceeding even after a judgment or order in an action has been made. [See Singh v Minjesk Investment Corporation Ltd & Anor, High Court Civil Action No:- HBC 148 of 2006, Korkis v Wer & Co. (1914) LT 794.]

(3)	Courts have a wide jurisdiction to order discovery and inspection.

In Singh v Minjesk (supra) Master J.Udit canvassed the applicable principles and case law authorities in some detail. From his analysis, what emerges clearly is that the onus initially is on the applicant to establish the following by way of affidavit evidence:

(i)	Identify clearly the particular document or documents or class of documents that he seeks from to be discovered by the opposing party (see Order 24 Rule 7 (1).

(ii)	Show a prima facie case that the specific document or class of documents do in fact exist or have existed (see Order 24 Rule 7 (1)).

(iii)	Establish that these documents are relevant in the sense that they relate to the matter in question in the action. In other words, the information in the document must either directly or indirectly enable the applicant either to advance his own case or to damage the case of his or her adversary. Alternatively, it is sufficient if the information in the document is such that it may fairly lead to a train of enquiry which may have either of these consequences. The relevance of a document is to be tested against the issues and/or questions raised by the pleadings (see A.B. Anand (Christchurch) Ltd v ANZ Banking Group Limited (1997) 43 FLR 22 30 January 1997).

It is important to note that whether or not any particular document is admissible or inadmissible is immaterial to its discoverability. It is enough if the document is likely to throw some light on the case (see Volume 13 paragraph 38 of Halsbury’s Laws of England – 4th Edition) page 34 cited in Singh v Minjesk

(iv)	Show that these documents were in the physical possession, custody (i.e. the mere actual physical or corporeal holding of the document regardless of the right to its possession) or power (i.e. the enforceable right to inspect it or to obtain possession or control of the document from one who ordinarily has it in fact) of the opposing party (see Order 24 Rule 7 (3)).

In Westside Motorbike Rentals (Fiji) Limited v Toganivalu Civil Action No, 55 of 2008 Master Tuilevuka (as he was then) said;

[7]. Discovery can be sought at any stage of a proceeding even after a judgement or order in an action has been made (see Singh v Minjesk Investment Corporation Ltd & Anor- High Court Civil Action No. HBC 148 of 2006 where Master Udit cited Korkis –v- Wer& Co. [1914] LT 794 as authority for this position).

[8]. The following principles emerge from Singh v Minjesk Investment Corporation Ltd & Anor- High Court Civil Action No. HBC 148 of 2006.The onus initially is on the applicant to establish the following by way of affidavit evidence:

(i)	identify clearly the particular document or documents or class of documents that he seeks from to be discovered by the opposing party (see Order 24 Rule 7 (1)).

(ii)	show a prima facie case that the specific document or class of documents do in fact exist or have existed (see Order 24 Rule 7 (1)).

(iii)	Establish that these documents are relevant in the sense that they relate to the matter in question in the action. In other words, the information in the document must either directly or indirectly enable the applicant either to advance his own case or damage the case of his or her adversary. Alternatively, it is sufficient if the information in the document is such that it may fairly lead to a train of enquiry which may have either of these consequences. The relevance of a document is to be tested against the issues and/or questions raised by the pleadings (see A.B Anand (Christchurch) Ltd –v- ANZ Banking Group Limited (1997) 43 FLR 22 30 January 1997).

It is important to note that whether or not any particular document is admissible or inadmissible is immaterial to its discoverability. It is enough if the document is likely to throw some light on the case (see Volume 13 paragraph 38 of Halsbury’s Laws of England- 4th Edition) page 34 s cited in Singh v Minjesk).

(iv)	show that these documents were in the physical possession, custody (i.e. the mere actual physical or corporeal holding of the document regardless of the right to its possession) or power (i.e. the enforceable right to inspect it or to obtain possession or control of the documents from one who ordinarily has it in fact) of the opposing party (see Order 24 Rule 7 (3)).

[9]. Courts will not allow the discovery process to be used towards assisting a party upon a fishing expedition such as to fish for witnesses or a new case (see Martin and Miles Martin Pen Co. Ltd v Scrib Ltd [1950] 67 RPC 1-7 as cited in Singh v Minjesk), Calvet –v- Tomkies [1963] 3 All ER 610.

Nor will discovery be ordered in respect of documents which are not related to or may not affect the actual outcome of the action: Martin and Miles Martin Pen Co. Ltd.- v- Scrib Ltd. [1950] 67 RPC 1-7). Furthermore, discovery will also be prohibited if it is for a general purpose of enabling a party.

In Wakaya Ltd v Nusabaum HBC 256 of 2010 Master Amartunga (as he was then) set out the requisite test under Order 24 i.e.

1.	Supreme Court Practice (1999) at p 471
24/7/2 state as follows:

‘…the present rule an application may be made for an affidavit as to specific document or classes of documents. This must be supported by an affidavit stating that in the belief of the deponent other party has or has had prima facie case is made out for (a) possession, custody or power and (b) relevance of the specified documents (Astra National Production Ltd v neo Art productions Ltd [1928]W.N. 218. This case may be base merely on the probability arising from the surrounding circumstances or in part on specific facts deposed to. 

See too Berkeley administration v McClelland [1990] F.S.R. 381where at p 382 the Court restated the principles as follows:

(1)	There is no jurisdiction to make an order under RSC 024 r 7 for the production of documents unless

(a)	there is sufficient evidence that the documents exist which the other party has not disclosed.

(b)	the document or documents relate to matters in issue in the action.

(c)	there is sufficient evidence that the document is in the possession, custody or power of the other party.

(2)	When it is established that those three prerequisites for jurisdiction do exist, the court has discretion whether or not to order disclosure.’
 (Emphasis added).

(E) ANALYSIS

(1.)	Let me now turn to the application bearing in my mind the above mentioned legal principles and factual background uppermost in my mind.

(2.)	Before I pass to consideration of the substantive submissions, let me record that the Counsel for the Plaintiff and the Defendant in their written submissions has done a fairly exhaustive study of Judicial decisions and other authorities which they considered to be applicable.

I interpose to mention that I have given my mind to the oral submissions made by both counsel as well as to the helpful written submissions and the judicial authorities referred to therein.

(3.)	I ask myself, what is the question in these proceedings?
As I stated earlier, the Defendant has filed a Summons pursuant to Order 25 and Order 24, rule (7), (10) and (12) of the High Court Rules, 1988and also invoking the inherent jurisdiction of the High Court for “Specific Discovery” as follows:

(a)	The Plaintiff do within 14 days disclose by affidavit whether copies of income and financial statements including balance sheets/profit & loss/depreciation schedules returned for all income received by the Plaintiff from all sources in Fiji and abroad for the financial years 2013 and 2014 together with copies of notices of Assessments of Tax in respect thereof in Fiji or abroad inclusive for the said years pertaining to the Plaintiff is or has at any time been in his possession, custody or power and if he parted with them, when he parted with any of them and what has become of them AND FOR A FURTHER ORDER that the Plaintiff do within 14 days thereafter make available such documents or copies of them for inspection on behalf of the Defendant.

(b)	The Plaintiff, as a director and/or shareholder of Relcorp (Fiji) Limited, do within 14 days disclose by Affidavit whether copies of full financial statements including balance sheets/profits & loss/depreciation schedules filed by Relcorp (Fiji) Limited (the guarantor) with the Fiji Revenue and Customs Authority or its predecessor for the financial years 2013 and 2014 together with copies of Notices of Assessments of Tax for the said periods inclusive for the said years pertaining to the Relcorp (Fiji) Limited is or has at any time been in his possession, custody or power and if it parted with them, when it parted with any of them and what has become of them AND FOR A FURTHER ORDER that the Plaintiff do within 14 days thereafter make available such documents or copies of them for inspection on behalf of the Defendant.

(c)	The Plaintiff, for himself and as a shareholder and/or director of Relcorp (Fiji) Limited) do within 14 days disclose by affidavit whether copies of all documents evidencing the grant of loans, including but not limited to, all loan offers, agreements, charges and mortgages in place with any financial institutions whether in Fiji or abroad given to or by the Plaintiff and Relcorp (Fiji) Limited evidencing availability of funds to purchase of CT 39941 Lot 7 Naisoso Island from January to September 2014 are or have at any time been in their possession, custody or power and if they parted with them, when they parted with any of them and what has become of them AND FOR A FURTHER ORDER that the Plaintiff do within 14 days thereafter make available such documents or copies of them for inspection on behalf of the Defendant.

(d)	The Plaintiff, for himself and as a shareholder and/or director of Relcorp (Fiji) Limited, do within 14 days disclose by affidavit whether copies of all bank statements in respect of any account with any bank or other financial institution whatsoever in Fiji or abroad for the period January 2013 to December 2014 pertaining to the Plaintiff and Relcorp (Fiji) Limited inclusive for the said years are or have at any time been in their possession, custody or power and if they parted with any of them, when they parted with any of them and what has become of them AND FOR A FURTHER ORDER that the Plaintiff do within 14 days thereafter make available such documents or copies of them for inspection on behalf of the Defendants.

(4.)	Before determining against the Plaintiff, the real issue and the only issue which this Court has to consider at the outset is whether the Defendant has satisfied the threshold criteria in Order 24, rule (7) of the High Court Rules, 1988.

Let me have a close look at Order 24, rule (7).

Provisions relating to “Specific Discoveries” are contained in Order 24, rule (7) of the High Court Rules, 1988.

Order 24, rule (7) provides;

Order for discovery of particular documents (O.24, r.7)

7.-(1) Subject to rule 8, the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is, or has at any time been, in his possession, custody or power, and if not than in his possession, custody or power, when he parted with it and what has become of it.

(2) An order may be made against a party under this rule not withstanding that he may already have made or been required to make a list of documents or affidavit under rule 2 or rule 3.

(3)	An application for an order under this rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this rule has, or at some time had, in his possession, custody or power the document, or class of document, specified or described in the application and that it relates to one or more of the matters in question in the case or matter.

In Halsbury’s, Laws of England, 4th Edition at pg. 78 the authors aptly described the documents which are capable of being discovered as follows:-

#8. Documents required to be disclosed.

The obligation of a party to make discovery necessarily involves that he must make a full and frank disclosure of all relevant documents which are or have been in his possession, custody of power. Apart from any order limiting the scope of the discovery of particular documents or class of documents, or to particular issues, there are two general and essential conditions as to what documents are required to be disclosed, namely:-

(i)	they must be relevant; that is they must relate to some matter in question in the action or other proceedings; and 

(ii)	they must be or have been in possession, custody or power of the party required to make discovery”, (see to Atkins Volume 15, (2nd) addition page 78-80).

In Re Barlow Clowes Gilt Managers Ltd. [1991] 4 All E.R. 385 Millet J. said at p. 393:

“It is a feature common to both systems of justice, civil and criminal that there is a strong public interest that the court should have all relevant information made available to it. But the courts have never assumed or been granted the power to compel the production of all such information regardless of its nature and source. That would amount to an intolerable invasion of privacy. Statue and rules of court made under statutory power have long established the circumstances in which production can be compelled in the interests of justice and have thereby resolved the conflict between the two competing public interests.”

(5.)	What is the rule of conduct of this Court in an application such as this?

Courts have a wide jurisdiction to order discovery and inspection.

In Ram Kumar Singh v Minjesk Invesment Corporation Ltd, Civil Action No – 148/2006 (05-05-2008) Master J.Udit canvassed the applicable principles and case law authorities in some detail. From his analysis, what emerges clearly is that the onus initially is on the applicant to establish the following by way of affidavit evidence:

(v)	Identify clearly the particular document or documents or class of documents that he seeks from to be discovered by the opposing party (see Order 24 Rule 7 (1).

(vi)	Show a prima facie case that the specific document or class of documents do in fact exist or have existed (see Order 24 Rule 7 (1)).

(vii)	Establish that these documents are relevant in the sense that they relate to the matter in question in the action. In other words, the information in the document must either directly or indirectly enable the applicant either to advance his own case or to damage the case of his or her adversary. Alternatively, it is sufficient if the information in the document is such that it may fairly lead to a train of enquiry which may have either of these consequences. The relevance of a document is to be tested against the issues and/or questions raised by the pleadings (see A.B. Anand (Christchurch) Ltd v ANZ Banking Group Limited (1997) 43 FLR 22 30 January 1997).

It is important to note that whether or not any particular document is admissible or inadmissible is immaterial to its discoverability. It is enough if the document is likely to throw some light on the case (see Volume 13 paragraph 38 of Halsbury’s Laws of England – 4th Edition) page 34 cited in Singh v Minjesk

(viii)	Show that these documents were in the physical possession, custody (i.e. the mere actual physical or corporeal holding of the document regardless of the right to its possession) or power (i.e. the enforceable right to inspect it or to obtain possession or control of the document from one who ordinarily has it in fact) of the opposing party (see Order 24 Rule 7 (3)).

(6.)	Therefore, the law in relation to “Specific Discovery”, as I understand it, is this;

Quite plainly in order that any document may be discoverable it must firstly, be shown “… to relate to (some) matter in question in the cause…” In other words the document must be relevant to a question or issue in the proceedings in so far as the same may be deduced from the pleadings in the action. Secondly, the document(s), must be shown to exist and ‘… are or have been in (the) possession, custody or power …’ of the party against whom discovery is being sought.

What is meant by the phrase “a relevant document”;
 
“… the matter in question in the action if it contain information which – not which must – either directly or indirectly enable the party requiring the discovery either to advance his own case or to damage the case of his adversary, or which may fairly lead to a train of enquiry which may have either of this consequences. Documents relate to matters in question in the action whether they are capable of being given in evidence or not, so long as they are likely to throw light on the case. The expression ‘matter in question’ means a question or issue in dispute in the action and not the thing about which the dispute arises”. See Volume 13 paragraph 38 ofHalsbury Laws of England (4th Edition)page 34.

In the leading authority CompagnieFinanciėre du Pacifique v. Peruvian Guano Co. (1882) 11 Q.B.D. 55 Brett L.J. stated of the above first requirement at p.63:

“It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in, the words ‘either directly or indirectly’ because, it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences.”

(7.) As I understand the evidence, the Plaintiff’s only grounds for objection to produce the documents sought appears at paragraph (15) of the affidavit in opposition in the following terms;

Para 15 As to paragraph 12, 13 & 14 of the said Affidavit, the request for further discovery has been declined on the grounds of that Relcorp is not a party to this action, and on the basis of relevance. As I have stated previously Relcorp is not a party to this action, there is no pending action taken against them as a Guarantor under the now rescinded Sale and Purchase Agreement. In any event the Defendant has already been given relevant financial information about Relcorp in Civil Action No. 136 of 2014, in which action the Defendant was a party.
(Emphasis added)

 (8.) Relevance

In this regard counsel for the Defendant submits;

Reference is made to paragraph 7.1, 7.2, 8.1, 8.2, and 8.3 of the written submissions;

Para 7.1 The Affidavit of Vimal Deo at paragraph 9 deals with relevance. Based on the pleadings the financial documents requested in VD-4 (such as the income and financial statements including balance sheets (profit & Loss/ depreciation schedules, notice of assessment of tax, bank balances, loan agreements) are highly relevant to ascertain whether a party was or is able to satisfy any financial obligations imposed by any dealings which are the subject matter of any proceeding against them. This relates to the issue of whether the Plaintiff had the ability to settle pursuant to the Agreement and to ascertain the veracity of the allegations made by him.

7.2 The Pleadings are of relevance as well it states the dispute which goes to the heart of the Agreement. The main issue being who breached the agreement, was it the Plaintiff or the Defendant. Both blame each other, of importance is the counter claim wherein the defendant states that there were failure by the Plaintiff to take the transfer. The documents are crucial to determine whether the Plaintiff or its guarantor was in a position to take the transfer and able to otherwise make payment.

8.1 The Plaintiff has the onus to prove its case. Of necessity it must prove that it was in all respects able to perform the Agreement if the alleged breaches by the Defendant had not occurred. 

* see Howe v Smith (1984) 27 Ch. D 89 at 103.

Pleadings by the Plaintiff should have made specific reference to this ability and willingness to complete.
 
* see Bullen &Leake 12th Ed page 839 and 845

8.3 The Plaintiff’s Statement of Claim does not comply with the Rules as it pleads evidence in various paragraphs.
 
* see Order 18 Rule 6 HCR 1988

However, what comes out very clearly from the implications is that had it not been for the breaches alleged the Plaintiff was ready willing and able to proceed and settle. The Plaintiff must the trial demonstrate this otherwise its claim will fail.

In adverso, counsel for the Plaintiff submits;

Reference is made to paragraphs 24, 25, 26, 27, 28, 29, 38, and 39 of the written submissions;

Para 24. Even if Mr Deo’s Affidavit satisfies these tests the Court has the overriding power to refuse the application for discovery if the discovery sought is irrelevant to the issues before the Court, the pleadings and the relief sought by the parties.

25. In so far as the Plaintiff’s claim is concerned the Defendant hasn’t pleaded anywhere that the Plaintiff was not in a financial position to settle. With respect we submit that this is irrelevant to the issues that are before the Court. The Plaintiff did not settle and the Defendant alleges that it rescinded the Sale and Purchase Agreement. However, the reason why the Plaintiff did not settle is abundantly clear from the pleadings, the Plaintiff says that the Defendant did not comply with clause 5.1 (a) and it breached the agreement by allowing the Managing Director and his family to reside in the Residence from February 2014.

26. Furthermore, nowhere in the Sale and Purchase Agreement was it a condition for the Plaintiff to prove or establish that had the financial means to complete the sale.

27. If the Plaintiff is not able to prove the leaded grounds on which it relies to allege breach of the Sale and Purchase Agreement then the Plaintiff’s case will fail.

28. The Defendant doesn’t have to establish that the Plaintiff was not in funds to complete the sale, what it has to show is that it did not breach the Sale and Purchase Agreement. It has to prove that it had complied with clause 5.1(a) and that the Manager was entitled under the Sale and Purchase Agreement to occupy the dwelling house. 

29. Given the above, in the absence of specific pleadings it is difficult to see how the Plaintiff’s financial records are relevant to any of the issues before the Court.

38. If the Sale and Purchase Agreement made it an express condition that the Plaintiff was supposed to obtain finance to complete settlement through a loan then there might have been some credibility in seeking discovery of a loan application and confirmation od approval of loan finance but the Sale and Purchase Agreement does not make obtaining loan finance a precedent condition.

39. Put in another way, where it is a term and condition in the Sale and Purchase Agreement that required the Plaintiff to obtain loan finance. If it was a specific term of the Sale and Purchase Agreement and that condition was not fulfilled only then could the Defendant allege a breach and seek discovery of documents to ascertain whether that condition had been duly met.

 (9) Whether documents relevant ?

(A)	The Defendant is seeking Specific Discovery of ;

(7.)	The Plaintiff do within 14 days disclose by affidavit whether copies of income and financial statements including balance sheets/profit & loss/depreciation schedules returned for all income received by the Plaintiff from all sources in Fiji and abroad for the financial years 2013 and 2014 together with copies of notices of Assessments of Tax in respect thereof in Fiji or abroad inclusive for the said years pertaining to the Plaintiff is or has at any time been in his possession, custody or power and if he parted with them, when he parted with any of them and what has become of them AND FOR A FURTHER ORDER that the Plaintiff do within 14 days thereafter make available such documents or copies of them for inspection on behalf of the Defendant.

(8.)	The Plaintiff, as a director and/or shareholder of Relcorp (Fiji) Limited, do within 14 days disclose by Affidavit whether copies of full financial statements including balance sheets/profits & loss/depreciation schedules filed by Relcorp (Fiji) Limited (the guarantor) with the Fiji Revenue and Customs Authority or its predecessor for the financial years 2013 and 2014 together with copies of Notices of Assessments of Tax for the said periods inclusive for the said years pertaining to the Relcorp (Fiji) Limited is or has at any time been in his possession, custody or power and if it parted with them, when it parted with any of them and what has become of them AND FOR A FURTHER ORDER that the Plaintiff do within 14 days thereafter make available such documents or copies of them for inspection on behalf of the Defendant.

(9.)	The Plaintiff, for himself and as a shareholder and/or director of Relcorp (Fiji) Limited) do within 14 days disclose by affidavit whether copies of all documents evidencing the grant of loans, including but not limited to, all loan offers, agreements, charges and mortgages in place with any financial institutions whether in Fiji or abroad given to or by the Plaintiff and Relcorp (Fiji) Limited evidencing availability of funds to purchase of CT 39941 Lot 7 Naisoso Island from January to September 2014 are or have at any time been in their possession, custody or power and if they parted with them, when they parted with any of them and what has become of them AND FOR A FURTHER ORDER that the Plaintiff do within 14 days thereafter make available such documents or copies of them for inspection on behalf of the Defendant.

(10.)	The Plaintiff, for himself and as a shareholder and/or director of Relcorp (Fiji) Limited, do within 14 days disclose by affidavit whether copies of all bank statements in respect of any account with any bank or other financial institution whatsoever in Fiji or abroad for the period January 2013 to December 2014 pertaining to the Plaintiff and Relcorp (Fiji) Limited inclusive for the said years are or have at any time been in their possession, custody or power and if they parted with any of them, when they parted with any of them and what has become of them AND FOR A FURTHER ORDER that the Plaintiff do within 14 days thereafter make available such documents or copies of them for inspection on behalf of the Defendants.

(B)	This takes me to the substantive question as to whether the documents sought to be discovered are relevant or not?

(C)	The information sought would portray an accurate portrayal of the Plaintiff’s and it’s guarantor’s financial situation at the relevant time. What concerns me is whether this is an issue that is of crucial relevance to the claim made and the defence the Defendant has erected.

I now turn to the pleadings to determine what are the matters at issue between the parties, because discovery is a procedure directed towards obtaining a proper examination and determination of the matter in issue – not towards assisting a party upon a “fishing expedition”. Only a document which relates in someway to a matter in issue is discoverable, but it is sufficient if it would, or would lead to a train of inquiry which would, either advance a party’s own case or damage that of his adversary.

What is meant by the phrase “fishing expedition”?

In this regard I adopt as appropriate the statement of Chilwell J. when his Lordship said in AMP Society v Architectural Windows Ltd. [1986]2 N.Z.L.R. 190 at p.126:

“In my view, the description of ‘fishing’ in the authorities … comes to this: an applicant is fishing when he seeks to obtain information or documents by interrogatories or discovery in order to discover a cause of action different from that pleaded or in order to discover circumstances which may or may not support a baseless or speculative cause of action..”

(D)	Let me remind myself the circumstances that give rise to the present application.

In his Statement of Claim, the Plaintiff pleads inter alia; (as far as relevant)

Para 1. The Plaintiff is a businessman and is a Director and Shareholder of Relcorp (Fiji) Limited and resides at The Cove, Denarau Island, Nadi, Fiji Islands.

2. The Defendant is a duly registered Company engaged in the business of construction and operates out of Denarau Island, Nadi, Fiji Islands.

3. The Plaintiff and the Defendant entered into a Sale and Purchase Agreement [“SPA”] on 15th February 2012, whereby the Plaintiff agreed to purchase the property comprised in Lot 82 in the subdivision known as Naisosovou Island and described more particularly as Lot 7 on DP 10178 in Certificate of Title No. 39941 together with a new Residence to be built by the Defendant in accordance with the plans and specifications provided by the Plaintiff together with all other terms and conditions set out therein.

36. On 7th July 2014 the Plaintiff paid the deposit sum of $242,499.47.

37. On 8th July 2014 the Defendant’s Solicitors sent a Formal Settlement Notice by way of a letter whereby the Defendant’s Solicitors sought to send an executed Transfer to the Plaintiff and further asserted that settlement was to take place at the Titles Office on 19th July 2014 or within 3 business days of the grant of the CGT Clearance Certificate from FRCA whichever was later.

38. On 9th and 16th July 2014 the Defendant’s Solicitors requested for a stamped Transfer. The Transfer was not stamped.

39. On 16th July 2014 the Defendant’s Solicitors sent a Settlement Statement stating that the amount required to settle was $2,540,769.5

40. On 18th July 2014 the Plaintiff’s Solicitors wrote to the Defendant’s Solicitors and in summary stated that:-

[i] The Plaintiff had been assured that a payment of $2,414,954.79 would be inclusive of VAT. The Transfer Document had to be amended to reflect this fact.

[ii] The Plaintiff required confirmation that there had been no variations made to the Original Plans supplied under cover of letter dated 19th June 2014.

[iii] The Plaintiff required confirmation that the property had not been occupied and/or used as a dwelling house by the Defendant or its agent after completion.

[iv] The Plaintiff wanted to inspect the property.

[v] The Defendant’s Solicitors were not allowed to deduct their feed from the Deposit.

41. By letter of 21st July 2014 the Defendant’s Solicitors responded in summary the Plaintiff:-

[i] Refused to amend the Transfer saying that the Plaintiff had agreed that VAT would be payable if chargeable.

[ii] Confirmed that the Residence had been occupied by the Defendant.

[iii] Confirmed that no further construction inspections would be entertained.

[iv] Stated that the Date for Settlement had expired.

43. By letter dated 2nd September 2014 the Defendant through its Solicitors gave notice that it was rescinding the SPA and forfeiting the Deposit under clause 17.1 (b) of the SPA.

44. It is alleged by the Plaintiff that the Defendant had itself breached the SPA in the following manner:

Particulars of Breach

[i] It failed to practically complete the Residence in accordance with the plans and specifications supplied by the Plaintiff.

[ii] It failed to complete the Residence in accordance with the standard of finishing expected from a reputable Builder.

[iii] At an earlier inspection undertaken of the Residence the Plaintiff informed the Defendant that landscaping was not completed, the swimming pool was not operating and other defects were highlighted to the Defendant and the Defendant was supposed to come back and confirm whether these defects had been attended to and fixed by the Defendant. It failed to do this.

[iv] In June 2014 it refused to accede to the Plaintiff’s request to have the property independently inspected by Mr. Adrian Sofield at 1.00 am on 6th June 2014 to verify compliance with Building Standards before Settlement was to take place.

[v] It procured a Completion Certificate from the Local Rural Authority on 21st February 2014 when there was no Engineer’s Final Certificate in existence at the time to allow for such a Certificate to be issued. An Engineers Report was only issued on 16th June 2014 and the Engineers, engineered Designs only inspected the Residence on 5th June 2014.

[vi] It sought settlement from the Plaintiff within 45 days from 29th May 2014 whilst knowing or having known that the Practical Completion Certificate had not been properly obtained from the Local Rural Authority.

[vii] The Defendant allowed the Residence to be occupied by its Directors and their families in breach of the SPA.

[viii] The Defendant sought to impose a Completion Date on the Plaintiff without complying with the Plaintiff’s request to have the Residence inspected independently by Mr.Sofield, such request being a reasonable request having regard to the circumstances.

[ix] The Defendant sought to rescind the SPA pursuant to clause 17.1 (b) whilst knowing and having ought to have known that its actions in doing were illegal, oppressive and unconscionable having regard to all relevant circumstances.

[x] The Defendant sought to levy VAT on the Purchase Price when the Defendant and/or its Solicitors had assured the Plaintiff that VAT was not chargeable on the sale.

45. By letter dated 5th September 2014 the Plaintiff through his Solicitors refuted the claims made by the Defendant’s Solicitors and put the Defendant’s Solicitors on notice that any purported forfeiture of the Deposit was disputed.

47. By letter dated 22nd September 2014 the plaintiff’s Solicitors responded to the letter of 8th September 2014 and also gave notice on behalf of the Plaintiff pursuant to clause 18.1 of the SPA to terminate the said Agreement and sought a refund of its Deposit.

48. The Defendant has refused the request to refund the Deposit and the Plaintiff brings this action seeking a refund of his Deposit.

Wherefore, the Plaintiff claims the following;

Para 1. A Declaration that the Plaintiff was entitled to terminate the Sale and Purchase Agreement pursuant to clauses 5.3 and 18.1

2. An Order that the Sale and Purchase Agreement has been properly terminated by the Plaintiff.

3. An Order that the Defendant and/or its Solicitors return the Plaintiff’s Deposit in the sum of $242,499.47 [less dishonour fees] together with interest on the said amount at a rate ordered by the Court computed from 22nd September 2014 until payment is made.

4. Costs of this action on an indemnity basis.

5. Such other or further relief as the Honourable Court may deem just.

In its defence, the Defendant alleges;

Para 36. The Defendant admits it has not refunded the deposit as it was forfeited pursuant to the terms of the Sales and Purchase Agreement and denies the Plaintiff is entitled to it in view of the breach on its part to complete the transaction contemplated by the Sale and Purchase Agreement.

 COUNTER CLAIM

37. The Defendant re-iterates the contents of paragraphs 1 to 36 herein and avers that the Plaintiff wrongfully and in breach of the Sale and Purchase Agreement dated 15th February, 2012 failed to complete the Sale and Purchase of all that property comprised in Certificate of Title Number 39941 being Lot 7 on DP 10172 together with the improvements thereon.

 PARTICULARS OF BREACH

[i] Failed to take a transfer of the property in accordance with the Sale and Purchase Agreement;

[ii] Failed to pay the Stamp Duty or to Stamp and return a copy of the transfer to enable the Defendant to obtain Capital Gains Tax clearance to complete the transaction;

[iii] Failed to pay the balance of the purchase price as required;

[iv] The Defendant will rely on the particulars of breaches as more fully set out in the correspondence from the Defendant’s Solicitors referred to in the Statement of Claim and the Defence herein.

38. By reason of the failure to complete the Defendant has been put to loss, damage and expense.

 Particulars

[i] The Defendant has lost interest on the monies it would have received and/or the benefit of re-investment of the purchase price in other ventures contemplated by the Defendant and known to the Plaintiff full particulars of which will be provided at the trial hereof.

[ii] The difference in the price obtainable on a resale full particulars of which will be provided at the trial hereof.

[iii] Costs and expenses to date and of resale full particulars of which will be provided at the trial hereof.

(It is worth mentioning that the Defendant has not pleaded that the Plaintiff was not in a financial position to settle.) 

Wherefore, the Defendant claims the following;

 Para 1. The Plaintiff’s claim be dismissed with costs.

 2. Damages

3. Interest on damages or monies found due to the Defendant under the common law and/or the Law Reform (Miscellaneous Provisions) Death and Interest) Act at such rate and for such a period as the Court deems just..

4. Costs.

5. Such further or other orders as this Honourable Court deems just and expedient.

(E) As I understand the argument for the Defendant, it was contended that “The main issue being who breached the Agreement, was it the Plaintiff or the Defendant. Both blame each other, of importance is the Counter Claim wherein the Defendant states that there were failure by the Plaintiff to take the transfer. The documents are crucial to determine whether the Plaintiff or its guarantor was in a position to take the transfer and able to otherwise make payment. The Plaintiff has the onus to prove its case. Of necessity it must prove that it was in all respects able to perform the Agreement if the alleged breaches by the Defendant had not occurred. Pleadings by the Plaintiff should have made specific reference to this ability and willingness to complete.” (Reference is made to paragraphs 7.2 and 8.1 of the Defendant’s written submissions)

For this argument, heavy reliance was placed on “Howe v Smith” (1884) 27, Ch. D. 89.

Let me have a close look at Howe v Smith.

In “Howe v Smith “ (supra) , an action was brought for “Specific Performance” of a contract for sale of certain freehold land known as “Hill’s Farm”, in the County of Middlesex, for £12,500. The contract was dated 24th March 1881, and thereby the purchaser (Plaintiff) agreed to purchase the premises in question for the sum of £12,500 part thereof having been paid on the signing of the agreement as a deposit and in part payment of the purchase-money. The completion of the purchase was however delayed by the purchaser (Plaintiff), and the vendor (Defendant), after passing for completion, agreed, on the 20th June, 1881, to extend the time for completion for a month, on payment of certain costs, but at the same time warned the purchaser (Plaintiff) that unless the purchase-money was then paid, he (Defendant-Vendor) should re-sell the property.

On 25th July the purchaser (Plaintiff), fearing that the vendor would re-sell the property, brought an action against the vendor (Defendant) for “Specific Performance” of the agreement.

The action was heard before Mr. Justice Kay, on the 27th February, 1883, when His Lordship dismissed the action with costs, being of opinion that the Plaintiff had precluded himself by his delay from insisting on the completion of the contract.

At the hearing of the appeal, Cotton L.J held that in consequence of the delay, the Plaintiff (Purchaser) is not entitled to the equitable remedy of “Specific Performance” which is only granted to those who are ready and prompt to complete the terms of contract on their part. Then the Counsel for the Appellant (Purchaser) asked liberty to raise a claim to the return of the deposit of £500. The Court held that under the contract the purchaser has so acted as to repudiate on his part the contract, and he cannot under those circumstances take advantage of his own default to recover his deposit from the vendor. The Court then inquired whether the purchaser has also lost all right to sue for damages for its non-performance. The Court held further that the Purchaser seeking damages is no longer obliged to prove his willingness and readiness to complete on the day named, but may still recover if he can prove such readinessand willingness within a reasonable time after the stipulated day. The Court concluded that the purchaser could not show a readiness and willingness to complete; either on the day fixed or within a reasonable time after and therefore held that the purchaser has deprived his right to maintain an action for damages.

But in the case before me, as I read the pleadings of the Plaintiff (Purchaser), there is no claim for an equitable remedy of “Specific Performance”. It is worth remarking that the Plaintiff (Purchaser) has not sued for recovery of damages for breach of contract at common law. Instead of claiming for an equitable remedy of “Specific Performance” or damages for breach of contract at common law, the Plaintiff (Purchaser) in the case before me claimed the return of his $ 242,499.47 ,which was paid on the execution of the Agreement, which is essentially a claim at common law, and which does not arise in equity. Moreover, the Plaintiff (Purchaser) took proceedings for a declaration that the contract is terminated. Therefore, the case before me completely differs from that of “Howe v Smith” (supra). Accordingly, the principle of “Howe v Smith” i.e. “the purchaser seeking damages should prove his willingness and readiness to perform his obligations (to pay the purchase money)”has no application to the case before me even by any stretch of imagination. Therefore, the argument of the counsel for the Defendant that the Plaintiff must prove that he was in all respect able to perform the agreement if the alleged breaches by the Defendant had not occurred fails and the argument that the Plaintiff should have made specific reference to his ability and willingness to complete the agreement also fails. I must confess that I am unaware of any authority which supports the argument of the Counsel for the Defendant. In “Howe v Smith” (supra) the decision of Cotton L.J is to the contrary. The argument advanced by the counsel for the Defendant is a misreading of the principles which are in cases of this kind. 

(F)	It is true that a Plaintiff (purchaser) in an action for “Specific Performance” (which is not the case here) should allege in his pleading and prove at the hearing his readiness and willingness to perform the contract (pay the purchase money). This is not a novelty in equity pleading.

Please See; 

•	Ellis v Rogers 
(1884) 29 Ch. D, 661
•	McDonald v McMullen
(1908) 25 WN (NSW) 142

•	Alam v Peston
(1938) 38 SR (NSW) 475

•	Bando v Goldberg
(1994) 62 WN (NSW) 87.

•	King v Poggioli
(1923) 32 CLR 222

•	Fry on “Specific Performance”

•	Van Heythusen, “ Equity Draftsman “
2nd Edition, By Hughes (1928) Vol-1.

Strictly speaking, a purchaser’s right to sue the vendor for damages for breach of Contract depends on the purchaser’s readiness and willingness to perform his obligations (to pay the balance purchase-money) and the completion of the Contract on the stipulated day ,because according to the law , time is of essence of the contract. Please see;Wilde v Fort , 4. Taunt .334 ,Stowell v Robinson, 3 Bing . N.C. 928 and Noble vEdwardes, 5 Ch. D, 378.

Therefore, the question as to whether or not the Plaintiff (purchaser) has been and is ready to perform the contract (to pay the purchase price) is an important consideration in an action by the purchaser against the vendor for Specific Performance and an action for recovery of damages for breach of contract(against the vendor). But it is not an important consideration when the Purchaser takes proceedings against the vendor (as in the case before me) for a declaration that the contract is terminated and claims the return of his money paid to the vendor at the execution of the Agreement. Please see; Drewry, “Forms of Claims and Defences in the Chancery Division” 1876 and Van Heythusen, “Equity Draftsman”, 2nd Edition, ByHughes (1928),Vol -01.

As I read the pleadings, the Plaintiff claims for the return of his $242,499.47 which was paid to the vendor at the execution of the Agreement andseek a declaration that the Agreement has been properly terminated. This is essentially a claim at common law and one which has not arisen in equity. The allegations on which the Plaintiff relies and by which he is prepared to swim or sink is that;

 Particulars of Breach

[i] It failed to practically complete the Residence in accordance with the plans and specifications supplied by the Plaintiff.

[ii] It failed to complete the Residence in accordance with the standard of finishing expected from a reputable Builder.

[iii] At an earlier inspection undertaken of the Residence the Plaintiff informed the Defendant that landscaping was not completed, the swimming pool was not operating and other defects were highlighted to the Defendant and the Defendant was supposed to come back and confirm whether these defects had been attended to and fixed by the Defendant. It failed to do this.

[iv] In June 2014 it refused to accede to the Plaintiff’s request to have the property independently inspected by Mr. Adrian Sofield at 1.00 am on 6th June 2014 to verify compliance with Building Standards before Settlement was to take place.

[v] It procured a Completion Certificate from the Local Rural Authority on 21st February 2014 when there was no Engineer’s Final Certificate in existence at the time to allow for such a Certificate to be issued. An Engineers Report was only issued on 16th June 2014 and the Engineers, engineered Designs only inspected the Residence on 5th June 2014.

[vi] It sought settlement from the Plaintiff within 45 days from 29th May 2014 whilst knowing or having known that the Practical Completion Certificate had not been properly obtained from the Local Rural Authority.

[vii] The Defendant allowed the Residence to be occupied by its Directors and their families in breach of the SPA.

[viii] The Defendant sought to impose a Completion Date on the Plaintiff without complying with the Plaintiff’s request to have the Residence inspected independently by Mr.Sofield, such request being a reasonable request having regard to the circumstances.

[ix] The Defendant sought to rescind the SPA pursuant to clause 17.1 (b) whilst knowing and ought to have known that its actions in doing were illegal, oppressive and unconscionable having regard to all relevant circumstances.

[x] The Defendant sought to levy VAT on the Purchase Price when the Defendant and/or its Solicitors had assured the Plaintiff that VAT was not chargeable on the sale.

(G)	Therefore, as far as the pleadings of the Plaintiff are concerned, the issues for consideration are; 

*Whether the Defendant (Vendor) breached the terms and conditions of the Sale and Purchase Agreement?

*The liability of the Defendant (Vendor) to return to the Plaintiff (Purchaser) the money paid at the execution of the Agreement.

Therefore, the Defendant has to prove that it duly complied with the terms and conditions of the Sale and Purchase Agreement and the Manager was entitled under the Sale and Purchase Agreement to occupy the dwelling house. I should add that when it has been agreed that a sum of money (deposit) shall be paid by the purchaser to the vendor immediately or at a certain stated intervals (as in the case before me), the question whether in the event of rescission repayment will be compelled depends upon the proper construction of the contract and not on the Plaintiff’s (purchaser’s) readiness and willingness to pay the balance purchase money. The object that the parties had in view providing for the payment (deposit) must first be ascertained. Please see; Mayson v Clouet, (1924) A.C. 980 at page 985. Where the intention was that the deposit money should form a part –payment of the full amount due, then, if the contract is rescinded for the payer’s default, the payee is required at law to restore the money, subject to cross claim for damages. Please see; McDonald v Dennys Lascelles Ltd, (1933), 48, C.L.R. 457 and Berry v Mahony, (1933) V.L.R. 314. If, on the other hand, the intention was that the money should be deposited as earnest or as a guarantee for the due performance of the payer’s obligation, the rule at common law is that if the contract is rescinded by reason of his default the deposit is forfeited to the payee and cannot be recovered by the payer. Please see; Leslie v Macnichol, (1881), 2 L.R. (NSW) 250, Perry v Sherlock (1888) 14 V.L.R. 492 and Duncan v Mell (1914) 14 S.R. (NSW) 113. 

In the circumstances, despite the skilful advocacy of the counsel for the Defendant, still I am at a substantial loss to understand how the Plaintiff’s financial records are relevant to the issues before the court.

(H)	As I understand the Defendant’s pleadings, the Defendant counter claims that the Plaintiff breached the agreement by not completing the transfer in accordance with the Sale and Purchase Agreement and making payment of the stamp duty and the purchase price. The counsel for the Defendant argued that “the issue of the Plaintiff and its guarantor’s financial position is a live matter for the trial, as to whether they had the ability to take the transfer and to pay the balance price.” This should be made clear;“The Defendant has not pleaded that the Plaintiff was not in a position to settle”. Therefore, it is difficult to see how the Plaintiff’s financial records are relevant. Despite the skilful advocacy of the counsel for the Defendant, indeed, I cannot understand how the financial records of the Plaintiff and his guarantor advance his own case or damage the case of his adversary. Why should the Plaintiff (purchaser) be bound to disclose to the Defendant his financial records and establish his readiness and willingness to perform his obligations when the Defendant (vendor) is seeking damages? There is no authority which supports the Defendant’s proposition. In “Howe v Smith” (supra), the Plaintiff in a purchaser’s suit sought damages and the court held that he can recover if he can prove his readiness and willingness to perform the contract i.e. to pay the purchase money. Therefore, “Howe v Smith” is to the contrary and the Defendant cannot derive any assistance from it. The counsel for the Defendant’s proposition has no validity. It is no part of the law. The Plaintiff’s (purchaser’s) financial records are relevant mainly if the Plaintiff (purchaser) has sued for a decree of Specific Performance against the Defendant (Vendor) or when there is a claim by the purchaser (against the Vendor) to recover damages for breach of contract. As I mentioned earlier,it is stated judicially, that a claim by a purchaser for a decree of Specific Performance against the Vendor will be denied unless he establishes that he is ready and willing to perform obligations upon his part. Please see; Mehment v Benson (1965) 113, CLR and Baird v Magripilis (1925) 37 CLR 321.

Strictly speaking, a purchaser’s right to sue the vendor for damages for breach of Contract depends on the purchaser’s readiness and willingness to perform his obligations (to pay the balance purchase-money) and the completion of the Contract on the stipulated day ,because according to the law , time is of essence of the contract. Please see; Wilde v Fort , 4. Taunt .334 ,Stowell v Robinson, 3 Bing . N.C. 928 and Noble vEdwardes, 5 Ch. D, 378.

In the case before me the Plaintiff (in the purchaser’s suit) has not sued for a decree of Specific Performance or damages for breach of contract against the Vendor (Defendant). Absurd results would follow if the Plaintiff (purchaser) is ordered to disclose his financial records and plead and establish his willingness to perform the contract and settle the purchase price when the Defendant (vendor) seeks to recover damages in the counter claim for breach of contract. I can find no principle to the proposition advanced by the Defendant. Such a proposition wouldbe repugnant to justice and fulfil no other object than that of aiding the wrongdoer. I can find no ground in which such proposition should exist. A result more repugnant to justice, as well as to the legal principle, I can hardly imagine. This is not merely clutching at a non –existent straw, but expecting to be carried by it.

Despite the skilful advocacy of the Counsel for the Defendant, still I am at a substantial loss to understand how the Plaintiff’s financial records advance his (Defendant’s) case or damage the case of his adversary.

I have to say, with the greatest respect to the counsel for the Defendant and with no pleasure that I totally disagree with his proposition. The impression produced on my mind by the Defendant’s above proposition is that I have here the evolution of a myth, and not a gradual unfolding of real facts. Anything more shadowy, anything more unsatisfactory, anything more unlikely to produce persuasion or conviction on the mind of the Court, I can scarcely imagine.

(I)	The object of discovery is to assist the proper determination of the relevant issues between the parties. It is not open to the Defendant to enlarge the area of discovery indefinitely by making irreverent allegations. 

This Court is not satisfied that the documents of which discovery is sought are relevant to the matters properly in issue in the action. The financial statements of the Plaintiff are not sufficiently relevant on the case as it stands. The Plaintiff’s ground of objection is accordingly upheld. The Defendant falls at the first hurdle. I could see nothing to change my opinion even on the basis of exhaustive work contained in Bray on “Discovery”.

In view of the approach I have adopted, I do not think there is any need for me to express my views on the second test i.e. the documents, must be shown to exist and are or have been in possession custody or power. It will be at best a matter of academic interest only or at worst an exercise in futility to discuss the merits of the arguments relating to the existence and possession of the documents sought.

Before taking leave of the matter, I wish to echo the judicial thinking reflected in the dictum of Millet Justice inRe Barlow Clowes Gilt Managers Ltd (1991) 4 ALL.E.R. 385, at page 393,

“It is a feature common to both systems of justice, civil and criminal that there is a strong public interest that the Court should have all relevant information made available to it. But the Courts have never assumed or been granted the power to compel the production of all such information regardless of its nature and source. That would amount to an intolerable invasion of privacy. Statute and rules of Court made under statutory power have long established the circumstances in which production can be compelled in the interests of justice and have thereby resolved the conflict between the two competing public interests.”

Essentially, that is all I have to say!!!

(F)	FINAL ORDERS

(1)	The Plaintiff’s objection is upheld.

(2)	The Defendant’s Summon for “Specific Discoveries” dated 21st April 2015 is dismissed.

(3)	The Defendant is ordered to pay costs of $1000.00 to the Plaintiff which is to be paid within 14 days hereof.

I do so Order!

Jude Nanayakkara
Master of the High Court

At Lautoka
08th April 2016