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Daria v Singh [2016] FJHC 881; Civil Action 50.2013 (30 September 2016)

THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 50/2013

BETWEEN:

Jayshree Ato Daria aka Jayshree Ben aka Jayshree Ben Dikesh Singh as

Administratrix in the Estate of Dikesh Sinh
Plaintiff
AND
Natwar Singh
Defendant

COUNSEL: Mr A. Nand for the plaintiff

Mr V. Singh for the defendant

Date of hearing: 18^th February, 2015

Date of Judgment: 30^th September, 2016

Judgment

1. The defendant, in his amended summons moves that the plaintiff’s claim be dismissed on the following grounds, viz:
   1. That the Plaintiff’s Amended Statement of Claim has been drawn up in a manner that may prejudice, embarrass or delay the fair trial of this action.
   2. That the Plaintiff’s action is an abuse of the process of the Court.
   100. That the Plaintiff’s Amended Statement of Claim discloses no reasonable cause of action against the Defendant.
   4. That the Plaintiff’s Amended Statement of Claim is scandalous, frivolous or vexatious.

The application is made under Or 18, r 18(1).

2. The summons is supported by an affidavit of Sonia Ranjana, a law clerk at Kohli & Singh, Barristers & Solicitors. She states that she has been advised that the statement of claim is “poorly drafted and.. defective. Plaintiff’s case cannot surely proceed..since the current Writ and Statement of Claim do not sufficiently plead proper facts and issues”.
   

The determination

3. The defendant, in his summons contends that the amended statement of claim is defective. The plaintiff has brought this action as administratrix of the estate of the deceased, but makes three other claims against the defendant in her personal capacity.
   
4. Paragraph 1 of the amended statement of claim pleads that the plaintiff “ was and has been the sole Administratrix of the Estate of her deceased husband”. Paragraph 2 states that the plaintiff is “ an ordinary person now residing in Australia and not well versed in Estate or Estate Administration matters..” Paragraph 4 pleads that the deceased passed away on 5^th March,2011.
   
5. The first claim is for “Fair share of the Estate Value of the Deceased”.
   
6. The second claim is for reimbursement of the monies paid to the defendant by the plaintiff under undue influence and duress.The plaintiff claims reimbursement of a sum of FJD$100,000 that she received from a life insurance policy, which she alleges she paid the defendant under undue influence and duress, as the defendant told her that he would be ruined as he did not have money to undergo surgery in Australia and he had paid the premiums on the insurance policy.
   
7. The third claim is for fair market remuneration or wages during the course of employment with the defendant. The plaintiff claims that she and her late husband were in employment with the defendant, but were not paid a fair remuneration. On that claim, Mr Singh, counsel for the defendant quite correctly points out in his written submissions that any recovery of wages or related claim falls under the jurisdiction of the Employment Relations Tribunal. He submits that this claim is an abuse of the process of Court and ought to be struck out.
   
8. The fourth claim is for restitution for unjust enrichment, as a result of the defendant requesting them to work in the defendant’s business and loosing the opportunity to move to Australia, to the detriment of the plaintiff and the deceased.
   
9. In my view, the second, third and fourth are claims by the plaintiff in her personal capacity and do not arise from the estate of the deceased. The plaintiff has brought this action as administratrix of the estate of the deceased.
   
10. In my judgment, the claims cannot be joined in the same action without leave of Court, as provided in Or 15,r.1(b).
    
11. The White Book,(Vol 1,1988), paragraph 15/1/5 “Claims by or against executor or administrator” states:

This provision excludes personal claims by or against an executor administrator which have not any reference to the estate. Whitworth v Darbishire 41 WR 317. If the plaintiff desires to join such claim in one action, he must first obtain leave under paragraph (c)and if such joinder will not cause inconvenience, it may be allowed..

12. The written submissions of the plaintiff cite the following passage from the judgment of Whitworth v Darbishire,(supra):

..but if a claim against executors personally in their private capacity be improperly joined with a claim against the estate of the testator, it will be struck out..

13. The plaintiff has not sought to obtain leave of Court to join the second, third and fourth claims, even after the objections were raised by the defence.
    
14. In the circumstances, I strike out the second, third and fourth claims for “Reimbursement of Monies paid to the Defendant by the Plaintiff under Undue influence and Duress”,“Fair Market Remuneration or Wages during the Course of employment with the Defendant” and “Restitution for Unjust Enrichment”.
    
15. As regards the first claim, Mr Singh complains that the plaintiff has failed to plead sufficient particulars.
    
16. In my judgment, the failure to plead sufficient facts is not a ground for striking out the claim. The defendant could move for better particulars, if he so desires.
17. Orders
    • (i) The second, third and fourth claims in the amended statement of claim for “Reimbursement of Monies paid to the Defendant by the Plaintiff under Undue influence and Duress”,“Fair Market Remuneration or Wages during the Course of employment with the Defendant” and “Restitution for Unjust Enrichment” are struck out.
    • (ii) The defendant shall file its statement of defence on 17^th October,2016
    • (iii) The matter shall be called before the Master thereafter.
    • (iv) The plaintiff shall pay the defendant costs in a sum of $ 750 within 14 days of this judgment.
      

A.L.B. Brito - Mutunayagam

JUDGE
30^th September, 2016