IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

HBC 27 of 2016
(Consolidated with HBC 100 of 2012)

BETWEEN:
KENTO (FIJI) LIMITED a limited liability Company having its registered office at P O Box 124, Nadi.
PLAINTIFF

A N D:
NAOBEKA INVESTMENT LIMITED a limited liability Company having its registered office at P O
Box 1719, Nadi.
FIRST DEFENDANT

A N D:
SOUTH SEAS LIMITED a limited liability Company having its registered office at P O Box 718, Nadi.
SECOND DEFENDANT

A N D:
iTAUKEI LAND TRUST BOARD formerly known as NATIVE LAND TRUST BOARD a statutory body registered under the provisions of the Native Land Trust Act having its head
office at Suva, Fiji.
THIRD DEFENDANT

A N D:
ILIASERI VARO, JOELI VATUNITU AND MANOA DRIUVAKAMAKA GADAI
FOURTH DEFENDANTS

Appearances:Mr. Maopa for the Plaintiff
Mr. J. Apted for the first Defendant (HBC 100 of 2012) and first and second Defendants 	(HBC 27 of 2016)
Ms. Raitamata for the second Defendant (HBC 100 of 2012) and third Defendant (HBC 	27 of 2016)
Date of Hearing: 02 December 2021
Date of Ruling: 21 February 2022

R U L I N G

INTRODUCTION

1.	Before me is an application by the first and second defendants to strike out the current further consolidated amended statement of claim of the plaintiff on account of the plaintiff’s failure to comply with the unless orders of Mr. Justice Stuart. and/or, alternatively, on account of the allegation that the further amended Statement of Claim does not comply with Stuart J’s orders of 14 July 2021 to provide particulars and his subsequent Unless Orders of 10 September, 2021.

2.	Also, the Defendants submit that as the pleadings stand, the Statement of Claim does not disclose a reasonable cause of action, are frivolous and vexatious or may prejudice, embarrass or delay a fair trial.

BACKGROUND

3.	The consolidated cases of HBC 100 of 2012 and HBC 27 of 2016 both concern a sub-lease on Malamala Island. The island is beneficially owned by Yavusa Tolu which comprises a number of land-owning units, one of which is the mataqali Naobeka.  At some point in time, the members of the mataqali Naobeka did set up the Naobeka Investment Ltd (“NIL”) for their benefit. In August 2007, NIL managed to secure a lease from i-TLTB over Malamala island.

4.	At some point around the same time, NIL purportedly sub-leased the island to Kento. What is uncontroverted between the parties is that there was an arrangement between NIL and Kento concerning Malamala Island. What also appears to be uncontroverted is that the said arrangement was a “sub-lease”. However, one of the major issues between the parties is whether or not the said sub-lease was valid. Suffice it to say that South Seas Cruises is challenging in a pending separate interlocutory application the validity of NIL’s sub-lease to Kento. South Seas’ challenges this on the ground that there had been no prior iTLTB consent on the said sub-lease.

5.	Apparently, in 2011 and 2012, NIL as head lessor, had issued notices of termination to Kento’s sub-lease. This prompted Kento to commence HBC 100 of 2012.  Kento’s main contention was that:

(i)	NIL’s notices of termination were invalid.
(ii)	that Kento’s sub-lease was still valid and seeking relief against forfeiture of sub-lease. 

6.	Notably, at the time when NIL sent the said notice to Kento, Kento had been negotiating the sale of its sub-lease to a third party, namely Rosie Tours.  However, the sale to Rosies did not go through partly because NIL members were not consenting to it.

7.	While all that was pending in 2015, NIL went ahead and issued a new sub-lease to South Seas Cruises. Since then, South Seas Cruises has occupied Malamala Island.

8.	In 2016, Kento commenced an action against NIL, South Seas Cruises, i-TLTB, and mataqali Naobeka by their representatives and members namely Iliaseri Varo, Joeli Vatunitu and Manoa Driuvakamaka Gadai.  However, the three persons who were named in a representative capacity for the mataqali by Kento, are now sued in their individual capacity after Stuart J struck out the representative nature in his 14 July 2021 ruling. 

9.	In its 2016 action, Kento claims that NIL, South Seas Cruises, i-TLTB, and mataqali Naobeka, had interfered with Kento’s sub-lease contract with NIL.

10.	In 2019, when the 2016 action was set for trial, Kento filed application to consolidate the 2012 action with the 2016 case. In December 2019, Stuart Judge granted an order consolidating the two actions. 

11.	At some point in 2019, after reviewing the files in both cases, and noticing how the case had been dragged by the countless interlocutories being filed, Stuart Judge gave some directions to the effect that all pending interlocutories are to be filed by early 2020 and that he would hear the trial by April or May 2020.

12.	It was at that point when South Seas Cruises instructed Munro Leys. At some point after that,  NIL would then file third party proceedings against South Seas Cruises.  Munro Leys would then take over the defence of the action against both NIL and South Seas Cruises.

FIRST APPLICATION FOR FURTHER & BETTWER PARTICULARS

13.	Mindful of the strict deadlines set by Stuart J, Munro Leys would then, on 10 February 2020, file directly in court an application for further and better particulars.

14.	When the said application was called in Court on 26 February 2020, it was agreed that Kento should file a Consolidated Statement of Claim for both actions wherein Kento would particularise the facts and circumstances on which its causes of action are based, to the level of particularity sought and required.  On that understanding, and due to Kento’s solicitors’ commitment, SSCL and NIL withdrew their application for further and better particulars.

KENTO’S CONSOLIDATED STATEMENT OF CLAIM – 14 APRIL 2020

15.	Kento filed a consolidated statement of claim on 14 April 2020 (“consolidated claim”).

16.	This consolidated claim did not meet the particulars which the defendants had sought in their 10 February application. In addition to that, it appeared that the consolidated claim was pleading new material and/or causes of action which had not been raised previously. These too were not sufficiently particularised.

17.	On 8 May 2020, Munro Leys filed an amended statements of defence for SSCL and NIL wherein they pleaded that the consolidated claim did not contain sufficient particulars, and that SSCL and NIL reserved the right to request further and better particulars and to amend their defence on receipt of particulars.

SECOND REQUEST & SEOND APPLICATION FOR FURTHER AND BETTER PARTICULARS

18.	On 22 May 2020, Munro Leys wrote to Babu Singh & Associates to point out that the consolidated claim and the new allegations were still not sufficiently, particularised. 

19.	The said letter had, annexed to it, a set of tabulated further and better particulars.

20.	By a letter dated 8 June 2020, Babu Singh & Associates would respond by refuting that NIL and SSCL were entitled to the particulars sought. On 20 July 2020, Munro Leys again requested Babu Singh & Associates for further and better particulars. When it became clear that the latter would not bother to respond, Munro Leys then, on 2 September 2020, filed a second Summons for Further and Better Particulars.  

21.	The said Summons was called before Stuart J on 4 September 2020 when Kento’s solicitor, again, volunteered to provide the requested particulars in a Further Amended Consolidated Statement of Claim. Stuart J then ordered them to do so within twenty-eight days.  However, Kento failed to comply.

22.	Meanwhile, on 28 October 2020, Stuart J handed down his Ruling on an application by the three individuals who had been sued as the representatives of the Mataqali Naobeka to have the action against them struck out and dismissed. As I have said above, the effect of Stuart J’s ruling was to dismiss and strike out only that part of the representative nature of the claim. However, he directed that the claim against above-named three named persons be maintained against them personally and not in their capacity as representatives of the mataqali. As to be expected, this of course required Kento to further amend its consolidated claim.

23.	On 4 November 2020, Stuart J granted Kento a further twenty-one days to file its amended statement of claim.  

24.	This was to address the pending application for particulars as well as to make necessary amendments following the striking out of the representative claim against the Mataqali. Kento would file its second amended consolidated statement of claim on 15 December 2020.

25.	However, according to Mr. Apted, this second amended consolidated statement of defence still fell short of providing the particulars required. As a result, Mr. Apted sought a hearing of their Summons.

THE HEARING – 01 MARCH 2021 & RULING 14 JULY 2021

26.	The hearing of the summons happened on 01 March 2021. 

27.	Mr. Apted underscored the fact that this hearing would take place six months after Munro Leys first filed the application in September 2020. He stressed that, during that time, he tried unsuccessfully to persuade Counsel for Kento to provide better particulars – but to no avail.

28.	At the said hearing, Kento’s counsel conceded that the particulars of the claims for special damages needed to be provided. However, he offered no concession on the other particulars sought.

29.	Mr. Apted highlights that Kento did not submit at the hearing that it was unable to provide any of the requested particulars – nor did they argue that the request was oppressive, or that the request went beyond the scope of particulars and was really a probe for evidence, or that it paced an unreasonable burden upon Kento. 

30.	Stuart J delivered a ruling on 14 July 2021. His Lordship ordered Kento to provide SSCL and NIL with the various further and better particulars specified in the July 2021 Orders.  

I require the Plaintiff, within 28 days from the date this ruling is delivered to file and serve an amended statement of claim complying with the directions given, and – in those situations where I have not actually made a direction, responding to my comments about what should be included.  

31.	However, despite the clear timeline ordered above, Kento failed to file and serve an amended statement of claim within twenty-eight days.

UNLESS ORDERS - 10 SEPTEMBER 2021  

32.	When the matter was next called before Stuart J on 10 September 2021,  Mr Moapa sought an extension of time to comply with the 14 July 2021 Orders. It was then that Stuart J made the following unless orders. 

1.	The time for filing an amended Statement of Claim which complies with the orders contained in my decision of 14th July 2021 is extended to 24th September 2021.

2.	If the amended Statement of Claim is not filed within that time, the Plaintiff’s claim is struck out and dismissed.

3.	If the Statement of Claim is filed within that time, the matter is adjourned for mention on 11th October 2021 at 10:30am.

4.	The Plaintiff is pay costs of $5,000.00 in total in favour of First and Second Defendants.

33.	Apparently, to this day, the $5,000 costs ordered has not been paid as of the date of this hearing.

20 SEPTEMBER 2021 - FURTHER AMENDED CONSOLIDATED STATEMENT OF CLAIM

34.	On 20 September 2021, Kento filed the Further Amended Consolidated Statement of Claim. However, the Further Amended Consolidated Statement of Claim (“FACSoC”) still did not comply with Stuart J’s July and September 2021 Orders. 
 
35.	An affidavit of Abilash Ram filed by Munro Leys annexes marked AR-9 a table which sets out for ease of reference the following in each of its four columns:

(a)	the further and better particulars sought

(b)	SSCL’s reasons for seeking them

(c)	the Court’s orders in relation to the request

(d)	the amendment made by the Kento in the Further Amended Consolidated Statement of Claim in response to the particular order of the Court.

36.	Mr. Apted submits however that this latest FACSoC still does not meet Stuart J’s July orders. This is what prompted the latest application to strike out the FACSoC.

COMMENTS

37.	There are two things I must consider. First is whether or not the latest Further Amended Consolidated Statement of Claim complies with Stuart J’s orders? If the answer to that is “yes”, then that will be the end of the matter. However, if the answer to that is “no”, then the second question to consider is – whether I should then strike out the statement of claim in its entirety or whether I should just strike out those paragraphs of the statement of claim which do not comply with Stuart J’s July Orders.

WHETHER THE LATEST FACSoC COMPLIES WITH STUART J’s JULY ORDERS?

38.	The offending paragraphs which Mr. Apted invited the court to review at the hearing are paragraphs 15, 16,17,20,21,23,27,28,31,32 and 33.

39.	I reproduce below the submissions of Mr. Apted and Mr. Maopa’s replies with regards to each offending paragraph.

Paragraph 15
40.	Mr. Apted submits:

50.	In paragraph 15 of the Further Amended Consolidated Statement of Claim, Kento alleges that it paid for and otherwise assisted NIL and Messrs Varo, Vatunitu and Gadai to obtain the issue of the Headlease and the Kento Sub-Lease.  Justice Stuart had originally considered that this was background information, but subsequently realised that it was pleaded in support of a claim for $1,500,000 in Special Damages in paragraph 25.  In sub-paragraphs (a) to (d), Kento had particularised that it had paid for the removal of Oceanic Schooner by Court proceedings, travel around Viti Levu in 2016 collecting landowners’ signatures, TLTB expenses for the issue of the Headlease to NIL, and legal costs for the dismissal of court proceedings brought by a rival faction of the Mataqali Nakovacake.  It pleaded that the legal fees and expenses amounted to more than $100,000 so the amount is not insignificant.  It had originally pleaded that “particulars could not be provided at this stage” indicating an admission that it was required to provide the particulars and would do so later.

51.	His Lordship noted that Kento would not need to particularise this claim if it had made relevant discovery.  Unfortunately Kento has not discovered anything relevant, leaving the Orders in the dark about how much is being claimed. 

52.	It is also to be noted that although it is sometimes permissible to particularise special damages a short time before trial, this is where those damages continue to be incurred.  In contrast, the claim in paragraph 15 concerns expenses allegedly incurred many years ago and which should be capable of reasonable particularisation.

53.	His Lordship’s specific order was –

“If details of and documents related to the payments referred to in this paragraph have not already been included in the plaintiff’s discovery of documents (in a way that makes it clear what they relate to) the plaintiff is to provide the particulars sought by the plaintiff in its application.”

54.	In response to the order to provide the particulars, Kento simply says that it is unable even to specify how much it claims to have paid because the documentary evidence was either lost or destroyed in floods.  It pleads that it will rely on a passage from Newbrook v Marshall [2002] 2 NZLR 606 as follows –

“Where there are variables involved, as usually occurs in assessments of business profits or losses, if precise figures had to be proved few plaintiffs could succeed. Where, as here, it is established that a particular factor was causative but its precise contribution to the loss could not be correctly calculated in precise dollar terms, a more robust approached is required of the Courts.  It is not a matter of whether an expert could give a reasoned assessment and could defend the number he or she came up with.  As Lord Mustill said in Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd [1997] AC 254 at p269. The assessment of damages often involves so may unquantifiable contingencies and unverifiable assumptions that in many cases realism demands a rough and ready approach to the facts.”

55.	It also says it will rely on oral evidence to be given by Michael Clowes, the alter ego of Kento and other unless to be given at trial.

56.	With respect, its answer is wholly inadequate.  In order to establish its claim, Kento will have to provide the Court with evidence of some kind.  The best evidence would be documentary evidence of the payments.  Even if Kento has lost its records, documentary evidence could still be obtained from its Bank and from the lawyers and other service providers whom it allegedly paid.  

57.	However, the obligation is not to detail the evidence but to particularise its claim giving advance notice of what its evidence will prove at trial so that the Defendants can prepare.  Thus, even if Kento were only to rely on oral evidence, it should still know by now what its witnesses are proposing to say and should be able to provide particulars of the evidence that they will give.

58.	The case of Newbrook v Marshall does not excuse Kento from providing the particulars ordered.  That case was about evidence proving loss of profits, which is always a speculative exercise as the Court must assess something which did not happen based on the best evidence to hand.  

59.	The claim in paragraph 15 is fundamentally different.  It is a claim for what Kento has allegedly already spent.  Even if its evidence of that might not be perfect, it must already have an idea of what each component supposedly cost in order to come up with “$100,000” and “$1.5 million” that it has pleaded.  It should be able to give particulars of this.

60.	It is submitted that in the circumstances, Kento is intentionally defying the Court’s order.  It clearly intends to unfairly “surprise” the other Defendants with its claims and evidence at the trial, despite the Court’s orders to the opposite effect.

41.	Mr. Maopa submits:

Particular (a) relates to para 15 of the Claim. This particular applies only where it is contained in more than 3 folios: rule 11 (2). Now para 15 of the Claim (see annexure AR8) of the Abilash Ram affidavit) pleads 6 particulars, the latest of which in compliance with the court order, set out the reasons and circumstances under which the Plaintiff will prove its case at the trial. Firstly, there is no suggestion that the required particulars will require more than 3 folios. So in this respect, the Defendants are not as a matter of law and fact entitled to an order for particulars. Secondly, the Defendants cannot surely complain that they will be surprised and ambushed at the trial. Whether the Plaintiff will be able to prove his case will only be judged at the trial and certainly not at this summary stage. The strength of his case is a matter for the Trial Judge and his Lordship alone. It is not true that no particulars have been provided. We respectfully submit therefore that the Plaintiff has complied as a matter of law and fact. 

Paragraph 16

42.	Mr. Apted submits: 

61.	In this paragraph, Kento claims the cost of purchasing and importing a vessel Volante amounting to $700,000 inclusive of duties and VAT.  This is claimed as special damages in paragraph 25, His Lordship directed that Kento must provide a breakdown between purchase price and the remaining expenses.

62.	For this paragraph as well, His Lordship’s specific order was –

“If details of and documents related to the payments referred to in this paragraph have not already been included in the plaintiff’s discovery of documents (in a way that makes it clear what they relate to) the plaintiff is to provide the particulars sought by the plaintiff in its application.”

63.	Kento has not provided any particulars at all, stating only that they will rely on the oral evidence of Michael Clowes and on the paragraph in Newbrook v Marshall.  

64.	It is submitted this is wilful disobedience to the Court’s order.  Newbrook v Marshall does not excuse it from its duty to particularise the claim it will make, even if its evidence will not be perfect.  Kento should be able to obtain copies of relevant documents from the Revenue and particularise the claim.  In any event, even if it must rely on oral evidence, the thrust of that evidence in relation to special damages must be particularised.

Paragraph 17

43.	Mr. Apted submits:

65.	This paragraph claims that Kento’s vessel was sunk as a result of sabotage by employees who were “members” of NIL and of the Mataqali.  The paragraph is presumably in support of the claim for the $700,000 for the vessel.

66.	Mr Justice Stuart ordered Kento to provide particulars of who did what to contribute to the sinking of the vessel.  He stated that if Kento wants to claim against any Defendant in relation to the loss, it must specify who of the Defendants it is claiming against and how they were involved in what is said to have happened.  Further, if the claim is against corporate entitles, being SSCL, NIL or TLTB, Kento must particularise the basis on which those Defendants are responsible for the actions of others, which requires identification of the alleged participants and the connection to be spelt out.  The nature of the alleged damage should be specified.  

67.	These particulars are clearly necessary to enable each Defendant to know what is alleged against it and how it is alleged to be liable.  This is essential for each Defendant to know the case it must answer and to prepare its Defence.  It is completely unsatisfactory for Kento to make unparticularised claims against all Defendants based on acts of other persons, who may or may not be related to a Defendant.

68.	The specific order was –

“In relation to each of the defendants against whom the plaintiff is claiming for this incident the plaintiff is to provide particulars of
i)	the names of the fourth defendants, or the employees or members of the first defendant who are said to have taken part in the incident referred to, and the part they are said to have played.
ii)	the date and nature of the alleged sabotage and damage that occurred, and details of the manner in which the vessel was thereafter unseaworthy.
iii)	the basis upon which it is said that each defendant is liable for the actions of those involved.”

69.	Kento’s response indicates that it is maintaining its claim for the loss alleged in this paragraph, but says that it does not know the names of members, but will rely on witness evidence.

70.	Kento claims that the Defendants know who the actors were.  This is denied and that in any case is not an adequate answer to the order for those particulars.  Even if Kento does not know the names of those allegedly responsible, it was still required to particularise the other matters identified by the Judge including which Defendant is alleged to be liable, how it is alleged to be responsible for the action of individuals and what damage is alleged to have happened.  Kento should know by now what evidence its witnesses will give and should be able to provide particulars based on that evidence.  

71.	It is particularly important to particularise the alleged relationship between a corporate entity and individuals due to the principle of separate legal personality.  A company is not liable for the acts of anyone else unless there is recognised relationship such as agency or employment.  For example, the mere fact that an alleged actor might have been a member of the Mataqali (which is denied) would not make NIL – or SSCL or TLTB for that matter – liable for his/her actions. Even the fact of employment is not enough since employers are only liable for acts of their employees in certain circumstances. They plead the basis on which in that case an employer is liable for the acts of the employee.

72.	Its refusal to do so is contumelious and indicates an intention to surprise and disadvantage the Defendants at the trial.

44.	Mr. Maopa submits:

Particular (c) relates to para 17 of the Claim. The complaint is that the Defendants are unable to identify how they might be responsible. Para 17 of the Claim refers to the persons as ‘’employees’’. Order 18 rule 6 (4) says that in such a case, the condition precedent, i.e. that “employees” are involved, and the resultant liability is to be implied into the pleading, that is to say, vicariously. Therefore, as a matter of law, the Defendants are not entitled to and order for the particulars claimed. In any event, it should be abundantly clear that this is so, hence the rule. Further, the names of such employees are matters of evidence and in any case those names should be known to the Defendants. The can either deny or admit or put the Plaintiff to proof at trial. Certainly, it should not be a proper ground for striking out the claim summarily. 

Paragraph 20

45.	Mr. Apted submits:

73.	This paragraph pleads that the Kento Sub-Lease was executed in or about August 2007.  Particulars were sought by SSCL and NIL of the date on which it is alleged the Sub-Lease was signed as this is relevant to the validity of the sub-lease in terms of the necessary TLTB consent under section 12 of the iTaukei Land Trust Board Act 1940.

74.	Mr Justice Stuart’s order was that –

“The plaintiff must plead or provide particulars (including details of the date the contract is said to have been entered into) sufficient to identify the contract, and specify (to the extend relevant to the claim) the terms of the contract that it says was entered into and is said to have been breached.

75.	In response, Kento has stated –

“The Plaintiff will rely on the evidence of Michael Clowes and other witnesses to be given at trial as to the precise dates and the circumstances under which the agreement was signed. The Defendants should be well aware of when they signed the agreement.”

76.	Kento’s amendment in response indicates it does have the evidence about when the Sub-Lease was signed, albeit that this will be oral.  It should therefore have particularised it as required.  It is not an answer to say that the Defendants “should be well aware” especially as the Court has already ordered the particulars to be provided.  

77.	In any event, SSCL was not a party to the Kento Sub-Lease and is not aware of the date of execution.  That date is essential to SSCL’s defence that the Kento Sub-Lease was invalid for want of prior TLTB consent.  

78.	Kento’s response is deliberately evasive and contumelious and indicates an intention to surprise and disadvantage the Defendants at the trial.

46.	Mr. Maopa submits:

Particular (d) relates to para 20. The Defendants complain that the sublease agreement has not been properly identified. That cannot be correct. The sublease has been expressly pleaded and discovered both in the supporting affidavits of the Plaintiff (see the very first affidavit of Michael Clowes filed in action HBC 100/12 on 9 May 2012) and in the documents discovered so far. Further, the Defendants in previous applications and in their pleadings have never denied that this is the agreement that is in issue. Paragraph 20 (a) of their Amended Defence admits that it signed the very sublease in question. They cannot surely be mistaken or in doubt as to the identity of the document. There are other issues as its execution and so forth but that is a different thing altogether from being surprised or ambushed at trial. There is only but one sublease agreement and there cannot be any mistake as to its identity. This ground too must fail. 

Paragraph 21

47.	Mr. Apted submits:

79.	Paragraph 21 alleges that Kento spent 3 months refurbishing the day trip facilities on Malamala Island.  Mr Justice Stuart directed that –

“If this paragraph is intended to be the foundation for a claim by the plaintiff for the cost of the refurbishment and clean up, or if the refurbishment/ clean-up is said to be consideration for the contract, or give rise to an estoppel in some way, the plaintiff is entitled to the details sought, plus details of the work involved, and the cost/value of that work.”

80.	Kento’s response again simply said evidence will be given at the trial.  As with the earlier answers, this is not a proper answer, and if evidence will be given, Kento should be able to particularise what it will prove.  The refusal to do so is deliberate disobedience to the Court’s order and is aimed at disadvantaging the Defendants.

48.	Mr. Maopa submits:

Particular (e) relates to para 21. The complaint is that there is no clarification that costs are being claimed and particularized accordingly. There is no specific claim expressly pleaded. That should answer the complaint. It is now becoming abundantly clear that the Defendants are just picking at straws and trying to dictate how the Plaintiff is to plead its case. This cannot be any grounds for an order for particulars or summary dismissal. 

Paragraph 23

49.	Mr. Apted submits:

81.	In paragraph 23, Kento had pleaded that 6 Notices of termination of its Sub-Lease were invalid and of no effect.  The allegations in this paragraph are central to its claims against the Defendants because if the notices were valid, Kento would have no claim against any Defendant.

82.	Justice Stuart ordered in respect of this paragraph –

“The plaintiffs are to provide the particulars sought in respect to the second, fourth and fifth notices.  In relation to the first notice the plaintiff is to provide further particulars of the basis upon which it is saying that the time given for compliance with this notice is not sufficient. In relation to the third notice, the plaintiff is to provide further particulars of:
i)	the defaults that the notice alleged
ii)	how the plaintiff had complied with the notice to rectify those defaults, or in what manner the defaults are said to have been waived by the first defendant,
iii)	the basis upon which it is said that the mataqali agreement/consent given on 28 July 2011 obliged the first defendant to consent to any sale of the sublease.
iv)	details of what the plaintiff would have received had this sale proceed, and explaining why this amount does not represent the loss to the plaintiff (as opposed to the loss of future business).”

83.	Again Kento has failed to comply and merely said that evidence will be given at the trial.

84.	Nothing has been provided as required in relation to the 2nd Notice.

85.	In respect of the 4th Notice which Kento alleged was issued by solicitors without authority and was not properly grounded in fact and law, Justice Stuart ordered Kento to provide particulars requested, namely –

“(e)	Of particular (d), specifying:
i)	the acts, facts and circumstances by which it is alleged the solicitors lacked authority
ii)	how the Fourth Notice was "not properly grounded in fact and law”

86.	The amendments provided by Kento again refer to oral evidence to be provided.  Although reference is made to alleged events at a police station, none of the required particulars have been provided.

87.	Kento was also directed to particularise how the 5th Notice was not grounded in fact or law, but again has only referred to the proposed witness evidence.

88.	In summary, no attempt at all has been made to comply with the Court’s orders to particularise why the notices of termination were unlawful or of no effect.  Even in respect of this key allegation, it is clear that Kento is intent on disobeying the Court and intends to surprise the Defendants with its evidence at the trial.

50.	Mr. Maopa submits:

Particular (f) relates to para 23. The Defendants complain that the Plaintiff has not provided particulars of unlawfulness of each notice of termination. This is not correct. It is obvious from reading para 23 as pleaded in the claim. Indeed, the Plaintiff has complied with the order for particulars. This too cannot be a ground for summary dismissal. 

Paragraph 27

51.	Mr. Apted submits:

89.	Paragraph 27 pleads that the Defendants knew of the existence of the Kento Sub-Lease.  SSCL and NIL had sought the following particulars – 

“Of the allegation that the 2nd, 3rd and 4th Defendants knew of the Plaintiff’s sublease agreement with the 1st Defendant, specifying how the Second Defendant allegedly knew of the existence of the Plaintiff’s sublease agreement.”

90.	His Lordship ordered –

“The plaintiff is to either provide the particulars required, or is to answer interrogatories asked by the defendants as to the information sought.”

91.	Kento has provided no particulars.

52.	Mr. Maopa did not make any submissions on paragraph 27. 

Paragraph 28

53.	Mr.  Apted submits:

92.	Paragraph 28 of the Further Amended Consolidated Statement of Claim is another key paragraph in that it is basis of the second cause of action for unlawful interference in contractual relations.

93.	The paragraph refers to Special Condition B(1) of First Schedule of the Kento Sub-Lease.  Mr Justice Stuart ordered Kento to plead the term or its legal effect.  Kento has not complied.  Its amendment merely pleads that it will rely on the legal effect of the Condition and on witness evidence.

94.	The Defendants and the Court remain in the dark about how Kento claims that Condition applies in support of Kento’s claims against the Defendants.

95.	His Lordship ordered – 

“The plaintiff is to provide the further particulars set out in the Court Ruling column of Schedule I in relation to this paragraph.”

96.	In effect, His Lordship also decided that Kento should provide the following particulars –

“(a)	Of the allegation that “despite that knowledge, the said defendants encouraged, counselled, assisted and caused the 1st Defendant to unlawfully terminate the Plaintiff’s sublease” specifying:
i)	which act of termination the Plaintiff says was unlawful
ii)	Why the Plaintiff says that the termination of the sublease was unlawful
 (b)	Of particular (a):
i)	who of the Second Defendant allegedly “encouraged and otherwise interfered with the decisions of the majority of the members of the landowning unit and the decisions of the directors of 1st Defendant”
ii)	the particular activities that it is complaining about, and how the liability of each defendant arises from the actions of whoever is said to have been involved in the activities referred to
iii)	in what manner it is alleged the relevant persons caused First Defendant to purportedly renege on “the right of transfer under Special Condition B(1) of the First Schedule of the sublease agreement” and in particular to which transferee (if any) and how and when this occurred
 (c)	Of particular (c):
i)	who of the Second Defendant “paid moneys to, encouraged, counselled and otherwise assisted the First, Third and Fourth Defendants to stop the Plaintiff exercising its rights under the sublease agreement and the Sale Condition...[etc]”
ii)	the particular activities that it is complaining about, and how the liability of each defendant arises from the actions of whoever is said to have been involved in the activities referred to
 (d)	Of particular (e), how the “repeated attempts” specified in paragraphs 22 and 23 (which are alleged of the First Defendant) are relevant to the Second, Third and Fourth Defendants (of whom the allegations in this paragraph 28 are made).

Furthermore, in relation to the defendants’ alleged responsibility for actions of ‘other members of the mataqali’, if the plaintiff wishes to maintain this pleading it will need to provide the further particulars referred to in relation to paragraph 17 of the statement of claim, including details of who these other members of the mataqali were, what they did and in what way the defendants are responsible for their actions.

97.	Kento’s amendment in response refers to the fact only that SSCL Sub-Lease was issued, that Defendants should be aware of the payments to which Kento is not privy and the proposed evidence of witnesses.  Again this is not an answer to the order for particulars, disobeys the Court’s orders and indicates again an intention to wilfully prejudice the Defendants by surprising the Defendants and the Court at the trial, with what they will set out to prove.

54.	Mr. Maopa submits:

Particular (g) relates to para 28. Again this is not picking. With great respect, special condition B (1) speaks for itself and its effect should be obvious from the wording of the special condition. The pleading refers specifically to the Plaintiff’s right to transfer under the special condition. I don’t know how much clearer it can be pleaded. The para also sets out the particulars which the Plaintiff say constitute the activities complained of. 

Paragraph 31

55.	Mr. Apted submits:

98.	The particulars pleaded in paragraph 31 pleaded that the issue of the SSCL Sub-Lease was unlawful because the Kento Sub-Lease was still in force and because NIL and the Mataqali were bound and estopped by a Deed of Settlement executed on 21 May 2013.  This was the first time the Deed of Settlement was mentioned in the pleading.  His Lordship said –

“I agree that the plaintiff must set out in the pleadings the meaning and effect of the Deed of Settlement relied on. It is not satisfactory to mention the Deed of Settlement for the first time in the particulars, and then without spelling out what the Deed is, who are the parties to the deed, what it provides for, and in what manner and by whom it has been breached by the grant of a subsequent sublease to the 2nd defendant.”

99.	His specific order was –

“The plaintiff is to provide further pleadings or particulars as to the parties to, circumstances of entry into, and relevant terms of the Deed of Settlement said to have been signed on 21 May 2013, and in what manner the first and fourth defendants are said to be estopped from denying the validity of the plaintiff’s sublease.”

100.	No attempt has been made by Kento to provide any of these particulars despite the clear orders of the Court.  The only amendment made to paragraph 31 was to add the words “and other members of the Mataqali” which was an amendment arising out of the striking out of the representative claim against the Mataqali.

101.	This was wilful disobedience to the Court’s order and further attempt to unfairly surprise the Defendants at the trial.

56.	Mr. Maopa submits:

Particular (h) relates to para 31. The complain that the deed had not been identified. This is not correct. The document is identified in the pleading in paragraphs 28 (f) and 31 (b).  The document speaks for itself. There is no element of surprise or ambush. The document has been discovered and discussed and analyzed in previous proceedings. This complaint cannot stand. 
Paragraph 32

57.	Mr. Apted submits:

102.	Paragraph 32 alleges that the actions pleaded in paragraphs 27-31 were intended to and interfered with Kento’s rights under its Sub-Lease and were unlawful.  Justice Stuart ordered – 

“I agree that each defendant is entitled to know which of the alleged actions it is said to be responsible for, and how that action interfered with the plaintiff's rights under the sublease it had from the 1st defendant. If it is alleged that any defendant is responsible for, the actions of another defendant, or another person, how that responsibility arises.”

103.	His specific order was –

“The plaintiff is to provide further particulars as to:
i)	which of each alleged action each defendant is said to be responsible for,

ii)	how that action interfered with the plaintiff’s rights under its sublease from the first defendant,
iii)	if it is alleged that any defendant is responsible for the actions of another defendant, or another person, how that responsibility arises.

104.	No effort was made at all to address this order.  This paragraph and the particulars remain wholly deficient in terms of informing the Defendants and the Court of how responsibility for any interference with contractual relations is to allegedly to fall on each Defendant and in allowing each of the Defendants to know the case that they have to meet at trial.
  Paragraph 33

105.	In paragraph 33, Kento claims special damages of an alleged loss of business opportunity of $0.5m per annum over the remaining term of its Sub-Lease amounting to say $10.0m.

106.	Following the principles in the White Book, His Lordship, in respect of the claim of $0.5m loss per year said –

“It is not clear whether this figure represents loss of profits or loss of revenue, or what facts/assumptions the forecast relies upon. This is information that must be provided by the Plaintiff in its statement of claim. … I would expect that there would be some reference to historical figures, compared to turnover post termination, and …

The pleadings on this issue are so deficient it is hard to know where to begin with an order to provide further particulars other than to reiterate the underlying principle, that the defendants are entitled to a full and fair understanding of the nature and extent of the claim against them, including the basis for the claim for damages. This information must be known to the plaintiffs, and would have been known at the time the proceedings were commenced in 2012, otherwise they would not have been advised to commence these proceedings. Certainly, it must have been known when the plaintiff issued the new claim against the 2nd defendant in 2016.”

107.	His Lordship ordered – 

“The plaintiff is to provide further particulars of the basis upon which a claim for loss of future earning is sustainable (having regard to its other pleadings), the actual and/or anticipated revenue and expense figures upon which this calculation is made, and the underlying facts/assumptions that the forecast and the claim rely upon.”

108.	Kento in its response merely refers to the prospect of witness evidence and the case of Newbrook v Marshall.  However, while that case was about lost profit, it was concerned with the sufficiency of evidence, not particulars.  Even if the evidence that is to be provided might not be full and complete, that does not absolve Kento from the obligation of particularising what that evidence will set out to prove.  As noted by His Lordship, Kento must have been aware of this when initiating the claim and when filing its first Consolidated Statement of Claim and the Defendants are entitled to a full and fair understanding of this.

58.	Mr. Maopa submits:

Particular (i) relates to para 32. The complaint is that the actions complained of were not identified. With the greatest of respect these have been particularized in paras 27 to 31. Again, the Defendants seem to read the various paragraphs of the Claim in isolation without any reference to each other and to lack understanding of the Claim. This complaint is unfounded. 

THE LAW

59.	In his  ruling dated 14 July 2021 - Stuart J provides an excellent starting point. I searched paclii for an electronic copy of this ruling and found out that it is not reported therein. I shall request the registry to forward an electronic and soft copy to paclii. I would highly recommend this to practitioners and judicial officers alike.

60.	After setting out the brief background and history of these proceedings, and the law of pleadings and the importance of proper pleadings with sufficient particularity (Order 18 Rules 5 to 17), Stuart J made the following comments which I find very helpful to keep in mind.

61.	The first comment appears at paragraph 9 which I reproduce in full below:

… lawyers’ – including judges’ – opinions on what is a good and sufficient pleading often differ in the same way, and to the same extent as people will differ in the ways they adopt to express and idea. It is much easier to find agreement on what is an insufficient, prolix or embarrassing pleading, than to define and agree on what is sufficient. There is plenty of scope for disagreement on whether pleadings, and particulars, are clear and sufficient, and a demand for further particulars can be just as oppressive and unhelpful as is a refusal to provide them. Recognition that there is no such thing as a perfect pleading, and the implicit need for the parties to compromise to reach a sensible solution, is the foundation of Rule 11(6) of Order 18. As has happened in this case, the court will expect the parties to exchange views on the need for further particulars, and the court can refuse to order them if the party asking for them has not first tried to reach agreement on the issue.

62.	The second is that, at paragraphs 10 to 14, Stuart J cites Speedy Parcels Ltd v Johns (1989) (CP 269/89) unreported judgement of the High Court of New Zealand delivered on 01 December 1989, as per Master Hansen;  Fitzpatrick Property Syndicate v White Fox & Jones [2009] NZHC, as per Associate Judge Osborne; In re the Estate of Harry Janson Ho [1993] FJHC 48 at page 4; and the White Book at paragraphs 18/12/2, 18/12/12 and 18/12/43. 

63.	Out of these cases, I extract  the following:

(a)	Particulars are important. They enable the other side to know what evidence they ought to be prepared with and to prepare for trial, to limit the generality of pleadings, and to define clearly the issues to be tried and flowing, from that, the discovery process required. This all augurs well for a fair trial.
	
(b)	The nature and level of particulars will depend on the facts of the particular case (e.g. a claim where fraud, negligence, misconduct, breach of contract, future losses, loss of profits and special damages). However, such particulars as time, place, amounts, names of persons, nature and dates of instruments are important. In addition to these, any other fact or circumstances relied upon to give rise to the plaintiff’s cause of action, must be pleaded.
	
(c)	A request for further and better particulars can be resisted if the request goes beyond the scope of particulars. For example, if a request for particulars is really a probe for evidence. On this note, it is important to note that particulars need be given only of facts – not evidence.
	
(d)	What the Court must ask are:

(i)	has sufficient information been provided to inform the other party of the case they have to meet to enable them to take steps to respond?
(ii)	is there a real risk that the other party may face a trial by ambush if further particulars are not provided?
(iii)	is the request oppressive or an unreasonable burden upon the party concerned? 
(iv)	whether a request is oppressive or unreasonable, depends on the circumstances and the nature of the acts alleged.	
64.	As Mr. Apted highlights, Kento appears to be of the view that just because the defendants may be aware of the circumstances around certain allegations, the duty on Kento to particularise on those allegations is accordingly, somewhat reduced. 

65.	Paragraph 18/12/63 of the White Book 1999 states that this is no reason for not supplying further and better particulars –

 Facts within applicant’s own knowledge – It is sometimes urged as an objection to an application for particulars that the applicant must know the true facts of the case better than this opponent (Harbord v Monk (1878) 38 L.T. 411; Keogh v Incorporated Dental Hospital of Ireland [1910] 2 Ir.R. 166, CA. But this objection is misconceived: each party is entitled to know the outline of the case that his adversary is going to make against him, and to bind him down to a definite story.

66.	Mr. Apted cites various old English cases based on the old English rules upon which our High Court Rules 1988 is modelled (see Davey v Bentinck (1893) 1 QB 185 CA; Reiss v Wolf [1952] 2 All ER 3; Samuel v Lingi Dress Ltd [1981] 1 QB 115; Re Jokai Tea Holdings Ltd [1993] 1 All ER 630; Grand Metropolitan Nominee (No 2) Co Ltd v Evans [1992] 1 WLR 1191; Hytec Information Systems Ltd v Coventry City Council [1997] 1 WLR 1666; QPS Consultants Ltd v Kruger Tissue (Manufacturing) Ltd [1999] BLR 366; The Owners of the Motor Vessel ‘Gravity Highway’ v The Owners of the Motor Vessel ‘Maritime Maisie’ [2020] EWHC 1697 (Comm).

67.	What I extract from the above cases are as follow:

(a)	if proper particulars are not served within a certain time, the action shall stand dismissed or the defence struck out (Davey v Bentinck (1893).
	
(b)	initially, the view in England was that a Court does not have a discretion to modify the effects of an unless order which had not been complied with. In other words, an unless order was self-executing, so if there was to be non-compliance, the striking out took place automatically leaving no discretion in the Court (Reiss v Wolf [1952] 2 All ER 3.
	
(c)	however, at some point, some English Courts began to move away from the above position and to hold that when an unless order was not complied, the court still has a discretion to extend time for compliance (Samuel v Lingi Dress Ltd [1981] 1 QB 115)
	
(d)	the above case however, as Sir Nicolas Browne-Wilkinson VC noted in Re Jokai Tea Holdings Ltd [1993] 1 All ER 630 “ did not give any direct guidance as to the approach to the exercise of the court's discretion except to say that such a discretion should be exercised ‘cautiously’.
	
(e)	Sir Nicolas Browne-Wilkinson VC then attempted to lay some guideline in Re Jokai Tea Holdings Ltd  when he held that the Court should only strike out a pleading for disobedience to an unless order for further and better particulars if the failure to comply was intentional and contumacious.  
	
(f)	As Sir Nicholas Browne-Wilkinson V.V said at p. 637:

In my judgment, in cases in which the court has to decide what are the consequences of a failure to comply with an unless order, the relevant question is whether such failure is intentional and contumelious. The court should not be astute to find excuses for such failure since obedience to orders of the court is the foundation on which its authority is founded. But, if a party can clearly demonstrate that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances, such failure to obey is not to be treated as contumelious and therefore docs not disentitle the litigant to rights which he would otherwise have enjoyed.” 
	
(g)	There is also a view, albeit an obita view, that where an unless order was breached, the Court should consider whether to strike out the whole pleading or only the affected paragraph (as per Purchas LJ in the English Court of Appeal in Grand Metropolitan Nominee (No 2) Co Ltd v Evans [1992] 1 WLR 1191 at p.1195 

	
(h)	In Hytec Information Systems Ltd, [1997] 1 WLR 1666, Lord Justice Ward said at pp.1674-1675:

1.	An unless order is an order of last resort. It is not made unless there is a history of failure to comply with other orders. It is the party's last chance to put his case in order; 
2.	Because that was his last chance, a failure to comply will ordinarily result in the sanction being imposed; 
3.	This sanction is a necessary forensic weapon which the broader interests of the administration of justice require to be deployed unless the most compelling reason is advanced to exempt his failure; 
4.	It seems axiomatic that if a party intentionally or deliberately (if the synonym is preferred), flouts the order then he can expect no mercy; 

5.	A sufficient exoneration will almost inevitably require that he satisfies the court that something beyond his control has caused his failure to comply with the order; 
6.	The judge exercises his judicial discretion in deciding whether or not to excuse. A discretion judicially exercised on the facts and circumstances of each case on its own merits depends on the circumstances of that case; at the core is service to justice; 
7.	The interests of justice require that justice be shown to the injured party for the procedural inefficiencies caused the twin scourges of delay and wasted costs. The public interest in the administration of justice to contain those two blights upon it also weigh very heavily. Any injustice to the defaulting party, though never to be ignored, comes a long way behind the other two;” (our emphasis)	

68.	Finally, Mr. Apted refers to the English Court of Appeal decision in QPS Consultants Ltd v Kruger Tissue (Manufacturing) Ltd [1999] BLR 366 and submitted as follows:

121.	The authorities were surveyed and principles were restated by the English Court of Appeal in 1999 in QPS Consultants Ltd v Kruger Tissue (Manufacturing) Ltd [1999] BLR 366 which is the last English authority on this point decided before England adopted the Code of Civil Procedure.  The Court surveyed the earlier decisions on unless orders generally and in relation to orders for further and better particulars.

122.	At p.371, Simon LJ –

“In short, the position is now very different to that obtaining at the time of Reiss v Woolf. If today an unless order is breached, the court, so far from being powerless, has a wide general discretion to do whatever is required in the interests of justice. In these circumstances there can be no justification for construing unless orders for particulars as narrowly (and I would add, artificially) as in times past.

… It was not, I conclude, necessary for the judge to have found the particulars as a whole “illusory” and nor, therefore, was it necessary, as the plaintiffs supposed, to establish that “in relation to a substantial number of the requests no genuine attempt had been made to answer them”. The order should properly have been found breached and the court’s discretion thus engaged on a less exacting test than this.”

123.	Simon Brown LJ further said at pp.371-372 –

“First, an order for further and better particulars (whether or not in Unless form) is not to be regarded as breached merely because one or more of the replies is insufficient. If the answers could reasonably have been thought complete and sufficient, then the correct view is that they require only expansion or elucidation for which a further order for particulars should be sought and made.
Second, although I would regard an unless order as breached whenever a reply is plainly incomplete or insufficient, I would not expect the court’s strike out discretion to be invoked, let alone exercised, unless the further and better particulars considered as a whole can be regarded as falling significantly short of what was required. Whether this would be so would depend in part on the number and proportion of the inadequate replies, in part upon the quality of those replies (including whether their inadequacies were due to deliberate obstructiveness, incompetence or whatever), and in part upon their importance to the overall litigation. Satellite strike out litigation is not to be encouraged and it must be recognised that even to strike out part of a pleading (unless of course … that would in any event be appropriate because, unparticularised, it is “vague and embarrassing”), is essentially penal.”  

124.	Waller LJ said at pp.375-376 –

“It is clear that where an order for particulars is made it is in breach of that order to respond “not entitled” or to give an answer which suggests that the matter is already sufficiently pleaded or which does not deal in any way with the request … It is also worth mentioning that if a pleading is defective for want of particularity, although it will not normally be struck out where that lack can be remedied, it may well be struck out if the failure to particularise is in blatant disregard of court orders … The extent and quality of the breach must obviously be taken into account in considering as a matter of discretion whether and to what extent the sanction should be enforced…

… what the court is concerned to examine is whether there has been a genuine attempt to answer the request. That is so, because the court will not contemplate enforcing the sanction of strike out either of the particular allegation unparticularised or of the whole pleading, unless there has been a failure, or failures, to make genuine attempts to answer the request or requests.” (our emphasis)

125.	OPS Consultants Limited was recently considered by the English Court of Appeal as representing the CPR, law under the prior English Supreme Court Rules in The Owners of the Motor Vessel ‘Gravity Highway’ v The Owners of the Motor Vessel ‘Maritime Maisie’ [2020] EWHC 1697 (Comm).

COMMENTS

69.	I keep in mind that a request for further and better particulars which goes beyond the scope of particulars and is really a probe for evidence and should not be entertained.  Also, I keep in mind the principles involved which underlie the cases cited above. 

70.	The questions I ask are:

(a)	has Kento provided sufficient information to inform NIL and SSCL of the case they have to meet to enable them to take steps to respond?
(b)	is there a real risk that NIL and SSCL may face a trial by ambush if further particulars are not provided?
(c)	are NIL’s and SSCL’s request oppressive or an unreasonable burden upon Kento? 
71.	My answer to (a) above is “No” for paragraphs 15, 16,17,20,21,23,27,28,31,32 and 33. The particulars provided still do not comply with Stuart J’s Orders of 14 July and 10 September 2021. 

72.	As to (b), I answer “Yes”. I agree with the submission that the amendments made by Kento are “plainly incomplete and insufficient”.  Their answers in effect say that the defendants are “not entitled” or “give an answer that the matter is already sufficiently pleaded” or “do not deal in any way with the request”.

73.	Mr. Maopa’s written submissions, and the affidavit of  Michael Clowes, do disclose that the failure to comply and provide particulars is for reasons beyond his control, or that the requests are unreasonable and unduly stifling on Kento.

74.	In ordering the particulars, Stuart J recognised that the relevant paragraphs of  Kento’s claim were important to the overall litigation and that it is essential for the defendants to receive the particulars to understand key parts of the litigation that they must meet at trial, so that they can prepare their evidence.

75.	Kento’s attitude has been disrespectful.  Despite numerous opportunities given by the Court to provide the particulars, Kento has simply not bothered to comply fully.  Instead, Kento has been rather evasive and deliberately obstructive.  They simply contend throughput their pleadings that it is sufficient for the defendants to understand what the two basic causes of action are.

76.	Since February 2020, the defendants have been seeking particulars of the claim relating to the alleged breach of the sublease, but to no avail. In relation to the second cause of action for contractual interference, Kento broadly asserts that the defendants are seeking evidence or should know the particulars – while completely ignoring the fact that the Court has ordered the particulars.  Kento treats the orders as if they are of no legal effect, and as if they can be ignored at its whim.  

77.	I agree with the submission that Kento’s response by way of the amendments and its answering affidavit, arrogantly ignores the rules for open, fair litigation and insist on maintaining a strategy of trial by ambush despite numerous efforts by the defendants to obtain particulars and the very clear orders of the Court.

78.	I agree that Kento’s default, and its attitude, is a deliberate flouting of Stuart J’s Orders and therefore contumelious.

79.	The question is, hat consequences should flow from this?

80.	Mr. Apted submits that in this case it would be appropriate for the whole Further Amended Consolidated Claim to be struck out. He further submits that it would be pointless for the Court to strike out only the offending paragraphs as a bare meaningless Statement of Claim would remain.  

81.	I am mindful that there is a pending application also by SSCL to strike out Kento’s claim on the ground that the sub-lease that its sub-lease from NIL was illegal because it had not been consented to by the i-TLTB. 

ORDER

82.	I will postpone making any order for now on the consequences, including costs, to flow from Kento’s contumelious breach and disregard of Stuart J’s Orders Unless Orders until I have heard the other application. The decision on what consequences are to flow from the breach of Stuart J’s orders, including costs  – I will pronounce together with the decision on the other striking out application. 

…………………………………………………
Anare Tuilevuka
JUDGE
Lautoka

21 February 2022