IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona J)

Civil Case No. 223 of 2010

BETWEEN:

SOUTH PACIFIC OIL
First Claimant

AND:

SOLOMON ISLANDS NATIONAL PROVIDENT FUND
Second Claimant

AND:

GRP & ASSOCIATES LIMITED
First Defendant

AND:

MICHAEL EDWARD HEMMER
Second Defendant

AND:

GRACE RAY HEMMER
Third Defendant

AND:

JOSES TUHANUKU
First Third Party

AND:

MARETA TAHU
Second Third Party

AND:

JOSIAH MANEHIA
Third Third Party

DATE OF HEARING: 28th and 29th November, 2011.

DATE OF RULING: 27th February, 2012.

Mr. R. Kingmele for the Claimants 
Mr. K. N. Wilson S. C. and J.R. Thomson for the Third Parties.
Mr. N. Maikin and A. Radcliff for the Defendants

RULING ON APPLICATION TO STRIKE OUT

Faukona J:

1.	There are two applications to strike out. The first was filed by Counsels for the Third Parties on 21st October, 2011. The second application was filed by the Counsels for the Claimants on 22nd November, 2011.

2.	The Third Parties are seeking orders;

(a)	That the claims by the Second and Third Defendants against the Third Parties be strike out;

(b)	That the claim by the First Defendant against Third parties be struck out,

(c)	Alternative to (2), the claims made by the First Defendant against Third Parties be struck out.

(d)	Alternative to (2), 97 paragraphs of the counter claim be struck out;

(e)	Further, that 11 paragraphs (named) of furthered better particulars provided to Third Parties be struck out:

(f)	Further particulars be provided in response to 32 paragraphs (named) of the Third parties request for particulars.

3.	On the Second application the Claimants seek orders,

(a)	That the counterclaim of the Second and Third Defendants be struck out as against the Claimants. 

(b)	As against First, Second and Third Defendants (in the alternative to the preceding order) 54 named paragraphs of the counter claim be struck out as against the Claimants. 

4.	The application by the Third parties that 97 paragraphs be struck out and 34 paragraphs out of the 97 in 2 (d) above to be struck out, but for the first sentence only; and paragraph 73 be struck out except for the second sentence. On that basis the submissions are formulated.

5.	Further, it is also noted that there are quite a number of paragraphs common to both applications to be struck out from the counterclaim.

6.	A number of issues can be identified as basis for consideration in these applications. They pivoted on major allegations of disclosing no cause of action, vexatious or an abuse of process which comprise of four components; 

(a)	Disclosing no cause of action by the Second and Third Defendants against the Third Parties and Claimants.

(b)	Disclosing no cause of action by the First Defendant to the Third Party.

(c)	Contravention of Rule 5.3

(d)	Entitlement of Third Parties to the particulars requested.

7.	Where it is alleged that a document (counterclaim) or part thereof, discloses no cause of action, immediately one thinks of it being vexatious or abuse of process. As such render the document as weak or substantially contain no chance of success. This boils down to a significant process of pleading whether it was done in accordance to the Rules or not. 

8.	These applications derive from the basis of contravention to the rules related to pleading. As such, the circumstances of the case require cautious and diligent approach to uphold the overriding objective of pleading as the nature of the case admits. 

The importance, function and content of pleading

9.	The overriding objective of the rules is to enable the court deal with the case justly as express in Rule 1.3; and must give effect ensuring parties address the real issues of the proceedings Rule 1.4 (a). Rule 1.6 and 1.7 the court should actively manage cases so that issues can be identified at an early stage. By Rule 5.2 the purpose of a statement of case is to set out the facts about what happened between the parties; and Rule 5.3 the statement must be brief as the nature of the case permits; set out relevant facts but not the evidence to prove, and identify principle of law relied upon, but not contain legal arguments.

10.	If damages are claimed then Rules 5.31 and 5.32 direct that the claim must state the nature and amount of damages claim.

11.	Rule 9.75 empowers the court to strike out proceedings generally or in relation to any claim, if it appears to the court that the proceedings are frivolous or vexatious, no reasonable cause of action disclosed and that the proceedings are an abuse of process. (This Rule is currently subject to contention in its interpretation).

12.	The pleading in strict sense contemplates document in which a party to a proceeding in a court of first instance, is required by law to formulate in identifying his case in preparation for hearing, and this include statement in writing of the claim, and any defence to it, and of the reply of the Claimant to any counterclaim of a Defendant. Further documents formulated and directed to be served on the third party and similar proceeding, however, pleadings.

13.	Thus each party is bound by its own pleading and his case is confine to the issues and questions raised until they are amended. Equally, the court is bound by the pleadings and may not decide the case on issue or question which has not been pleaded.

14.	Pleading works to identify matters which the parties differ on points on which they agree and further identify with clarity issues seek court to adjudicate on. To attain the objective, pleadings are conducted according to the rules. The main purpose is to compel each party to state clearly the material facts which they rely on, then require opposing party to admit or deny every material matter alleged against him. It follows that pleading enable the parties to decide in advance what evidence will be needed. From pleadings an appropriate method of trial can be determined. The issues are determined by the state of pleadings at their close if they are not amended.

15.	Every pleading must, if necessary be divided into paragraphs, each allegation be so far as convenient contained in a separate paragraph.

16.	Every pleading must contain only a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, but not the evidence by which they are to be proved. And statement must be brief as the nature of case admits. The rules as to what a pleading should or should contain are not absolute, but lay down the guiding principles according to which pleading should be framed. In commercial courts the rules of pleading are less strictly interpreted than in other courts. The court does not dictate to parties how they should frame their case, but parties must not offend against the rules of pleading which have been laid down.

17.	Any failure to comply with requirements of the Rules at any stage in the course of or in connection with proceedings, the court may order the pleading to be amended or strike out.

18.	In any pleading following a statement of claim of party must specifically plead any matter which he alleges makes any claim or defence of his opponent not maintainable, or which if not specifically pleaded, might take his opponent by surprise, or which raise issues of fact not arising out of preceding pleading.

19.	The general rule is that pleading must contain a statement of the material facts on which the party pleading relies, but not the evidence by which those facts are to be proved. This rule is strictly enforced by the court, see Lipkin v Kapknale Ltd. Consequently facts which are merely evidence of material should not be pleaded. If a material fact is omitted, the pleading might be held to be defective. The fact that an admission has been made by a party should not be pleaded if it is no more than evidence, although it may be a most important fact to be proved at the trial.

20.	Summary statement of fact should be pleaded as a statement and must be brief as the nature of the case admits. The facts should be stated concisely; equally pleading should be precise, clear and definite. These objectives are more likely to be achieved if the facts are stated in chronological order.

21.	Where relief is sought in respect of several distinct claims or causes of complaint founded upon separate and distinct grounds, it is good practice (no longer mandatory) to state each ground, so far as possible, separately or distinctly. The same rule applies when the defendant seeks to rely on several distinct grounds of defence or raise several matters by counterclaim or set off. The fact that different averments in a pleading are inconsistent with each other does not make the pleading either embarrassing or defective.

22.	In the case of William v Wilcox, Denman CJ explains the nature of the distinction between fact and evidence.

"It is an elementary rule in pleading, that when a state of facts is relied on, it is enough to allege it simply, without setting out the subordinate facts which are the means of producing it, or the evidence sustaining the allegations…. It is true that this mode of pleading does not disclose to the defendants the case on which the plaintiff relies: but, to object to it on this ground is to misconceive one object of pleading, and to forget another: the certainty of particularity of pleading is directed, not to the disclosure of the case of a party, but to inform the court, the jury, and the opponent, of the specific proposition for which he contends; a scarcely less important object is the bringing the parties to issue on a single and certain point, avoiding that prolixity and uncertainty which would very probably arise from stating all the steps which lead up to that point".

23.	While the distinction between facts and evidence is clear and undisputable, the case of Fera vs Ologa, confers jurisdictional power upon the court to determine the fate of pleadings. It states;

"The pleadings should be struck out only in plain and obvious cases….; the power of the court to strike out should be exercised only when the case is beyond and that it is satisfied there is no reasonable cause of action…If the statement of claim discloses some cause of action, or raise some question fit to be decided by the court, the mere fact that it is weak, and not likely to succeed, is no ground for striking out as disclosing no reasonable cause of action, where the court is satisfied that some material averment has been omitted, it will not dismiss the action but give leave to the Plaintiff to amend. On the other hand, if the court is satisfied that no amendment will cure the defect it will dismiss the action." See also Kulabule v Eagon Resources Development Co. (SI) Ltd, and Abe v Minister of Finance. In the case of Davy v Garett.

 James LJ said at page 486;

"if pleading such as this are to be allowed, the gentlemen which took such pains in the preparation of the rules may, as Oliver Cromwell did after an unsuccessful attempt to reform abuses "The sons of Zeruiah be too hard for me" (referring to 2 Samuel 3:39)".

Application of Rule 9.75

24.	The intention of Rule 9.75 is hotly contended. First and foremost though the rule is slotted under the striking out sub-paragraph, stand by itself under its own heading which uphold and impart an order for dismissal should the proceeding or in relation to any claim for relief are frivolous and vexatious. Any preceding that contain the above elements; the court has the discretionary power to order dismissal of the entire or whole proceeding or in relation to that claim for relief. A claim for relief cannot stand in isolation or alone, but has to have support by evidence; evidence that subsequently emerges from pleadings. In my opinion, if pleading is so bad in regard to one particular claim for relief, the court may order dismissal of that portion in relation to the claim; as separate from the whole proceeding. Paragraph 17 above is part of paragraph 18 which was extracted from the case of Knowles v Roberts, from the foot note of Halsbury's laws. It clearly states that the court may order pleading be amended or strike out. Similar sentiment was highlighted in the case of Fera vs Ologa in a circumstance where some material averment has been omitted the court will not dismiss the action but grant leave to amend, which in my view leave to amend part of it which is defective or irrelevant. In all, the court has discretionary power to amend pleading or strike out.

Application by the Third Parties.

There is no clear indication and explanation in relation to alternative orders sought by the Third Parties in the submissions. It is relevant therefore to stick to the pattern exerted in the submissions. 

Claim by the Second and Third Defendant against Third Parties.

25.	By paragraph (2) (a) (b) and (c) the Defendants seek relief that the Third Parties (inclusive) purchase 11,233,312 shares in 1st and 2nd Claimants registered in the names of the Defendant; pay to the Defendants the value of 2,808,325 shares and pay to the Defendant damages for breach of contract.

26.	Those claims are based on section 99 of the Companies Act 2009. It is not disputed that the only claim against the Third Parties is an application for relief under section 99 of the Act. However the Defendants reiterate that claim under section 99 premise on the use of the phrase "oppressive, unfairly discriminated and unfairly prejudicial which covers unjust detriment on the part of those in control of the company". In what capacities any act or acts in any of the terms prescribe above are question of fact which is an issue a trial court is eligible to entertain, should there be any. For mean time it is suffice to consider the application of section 99.

27.	The argument in respect of Section 99 is that, the Counsels for the Third Parties contend that the section confines to a shareholder or a former shareholder of a company may apply to court for an order under subsection (2). The second and the Third Defendants are not the shareholders of or former shareholder of a company, therefore their claim is bad in law and should be strike out.

28.	The Counsels for Defendants argue that while GRP is the applicant for relief under S.99, the provision also empowers the court to make any order that it thinks fit. These words are broad enough to include an order by the court against any person and in favour of any person (whether or not that person is the applicant). This is made clear by S.99 (2)(b) which states that orders the court make include order requiring the company or any other person to pay compensation to a person. So the extend of S.99, technically, may require an order by the court for the Third Parties to pay compensation to Second and Third Defendants and even to the First and Second Claimants.

29.	My approach to such an argument is this; acknowledging the fact that the pleadings has been closed. And as the Counsels for the Defendants has quoted in the counterclaim paragraph 23, that the Third Parties acted on behalf of and as agents of the NPF. And by paragraph 24(3) they exercise power for a proper purpose of the company and for the purposes of which such powers were conferred. 

30.	If the Third Parties are agents of Claimants or NPF for that matter, then any act or acts that is oppressive, discriminatory or prejudicial to a shareholder, former shareholder or even to non-shareholder, in normal contractual circumstances the principal is liable for the bad action of an agent. S.99 (2) (b) in my opinion though carry wide scope of interpretation, has to have some limitations. It does not open to the whole world. If the Third Parties acted extravagantly, in bad faith in their decision makings, then the Claimants are liable to pay any compensation. It would be illogic for the Third Parties to pay compensation to any person who does not suffer because of their decision, bad or otherwise, and which the circumstance does not permit. It is a matter for the principle that is the Claimants to decide on the appointment of the Third Parties or Directors and of course decide on option available to consider possible remedy and recoup any loss, should there be any. The indirect and technical route the second and third Defendants trodded seemed in my view, quite remote, which I think falls outside the scope of s.99(2)(b) of the Companies Act. I therefore strike out the claim by the Second and Third Defendants against the Third Parties in regards to purchase of shares and damages for breach of contract.

The Claim by the First Defendant against the Third Parties 

31.	The Third Parties application is to strike out the First Defendant's claim against them. The Third parties rely on a number of reasons to strike out the claim. It is too lengthy and consists of 156 paragraphs, thus breaches every rule of pleading; which in that sense embarrassing and abuse of process.

32.	To make it worst the Defendants delivered 119 paragraphs in length which rely on particulars given to the Claimants. As such it is an abuse of process and prolix pleadings and leaves it to the recipients to attempt to work out the case they expected to meet.
 
33.	That the counterclaim does not specify which paragraph it relied on against Third Parties or some of them, given it also brought against the Claimants, and claims for relief are made against the Claimants that are not made against Third Parties (paragraph (1), (3) and (4) of the relief).

34.	The counter claim does not discriminate as to which Third Party was actually a director of First Claimant at the time events alleged to have occurred. At the same time allegations are made against Mr Wate and Mr Sato who are not parties to these proceedings. Therefore the Third Parties proceed on the basis that each allegation is made against each of them.

35.	Certain paragraphs of the counterclaim as paragraphs 2(c) is unsustainable which sought an amount for breach of contract, when in reality there was no contract between the First Defendant and Third Parties. Non was pleaded. Paragraph 2 (a) alleged that Third Parties purchases shares registered in the name of the Defendants, yet only the First Defendant was the shareholder. Paragraph 2 (b) asserted that the Defendants are entitled to be issued with shares but no fact pleaded in support of that. Paragraph 2 (f) the Defendants seek valuation on the basis the Third Parties pay damages to the First Claimant. No such claim has been brought and Defendants has no right to bring such claim. And the claim for damages is not quantified. Therefore these claims ought to be struck out. 

36.	The pleading pleads multiple allegations in one paragraph. It pleads evidence and not facts, hence is irrelevant. The pleading is not confine to real issues, therefore makes many frivolous and vexatious in nature.

37.	The Defendants argument in support of their claim is based on S.99 of the Companies Act. They argue that application under S.99 can be brought against the shareholders of company, its directors and any other person who is responsible for doing unjustly detrimental acts. Subsections (2) (a) or (b) specifically refer to orders against the company or any other person. This issue was considered in Atlasview Ltd v Brightview Ltd which held the matters pleaded if proved, constitute prejudicial conduct which the director were responsible to justify sufficient relief being granted. They affirm that their claim can only be struck out if there is nothing pleaded to justify relief. To justify relief the Defendants rely on a number of issues under S.99 of the Act.

38.	First a breach of fiduciary duty by the director of the company under S.99, affirm by Robin Hollington QC 6th Edition which stated in shareholders right that "Any breach of fiduciary duty by directors is a prime facie ground for relief. Secondly the interests which S.99 is able to protect include matters beyond economic interest. Thirdly that Mr. Hemmer's wrongful exclusion is a form of oppression contrary to legitimate expectation by GRP that Mr. Hemmer be involved in the arrangement of the company. His exclusion constitutes unfair prejudice within S.99. Fourthly the Third Parties acted as agent of NPF, an action they denied. However they are liable for wrongful act alleged in counter-claim, as such, be responsible to justify relief, by making payment to Defendant and NPF in respect of loss and legal fee that NPF is paying for the Third Parties.

39.	It is submitted that Defendant do not bring any claim for breach of contract against Third Parties but an amount representing damages for breach of contract Paragraph (2)(c), the prayer in the counter-claim. S.99 2(a) refers to such payment as compensation.

40.	A number of issues are argued in regards to striking out the claim by the First Defendant against the Third Parties. I will deal with each issue under various sub-headings. 

41.	Before the court exercise its powers under Rule 9.75 to strike out, the proceedings under all circumstance must be frivolous or vexatious, that no reasonable cause of action is disclosed, or the proceedings are an abuse of processes. The question is has the claim brought about by the First Defendant fall under any of the categories express in Rule 9.75. I now turn to the issues raised in the submissions then.

Lengthy Pleading:

42.	The Counsel for Third Parties argue that the counter-claim brought against Third Parties is too lengthy with 48 pages and comprises 156 paragraphs. General Law in regards to pleadings has been stated earlier in this ruling. Suffice to say the purpose of pleading is to compel parties to state the material facts rely on clearly, allowing opposing party to admit or deny. Halsbury's law make it clear that rules as to pleading are not absolute but lay down guiding principles. In commercial courts the rule of pleading are less strictly interpreted from other courts.

43.	This case has been agreed to be most lengthy and complicated case in recent years. It involves complicated issues. As such pleading is expected to be lengthy and will involve numerous material facts. It cannot be expected to be short as in normal and usual case. It's a huge commercial case which involves millions of dollars. It is anticipated that pleading will consume space and will attract volume of argument. 

Pleading not specific

44.	The Counsels for the Third Parties submit that the Defendants rely on same particulars given to the Claimants as in the case against Third Parties. The same applies to the counterclaim and claims for relief. I noted paragraph 2 (a) (b) and (c) of the counterclaim and the truth in the Third Parties submissions. I noted that it is difficult to work out the case they expect to meet. Whilst S.99(2)(a) & (b) refer to order against the company or any other person it would be better to state which paragraph the Defendants rely upon against the Third Parties. That has to be expressed in specific term and the name of the Third Party be mentioned and identified. This is significant to avoid making allegations against a person who is not a party as Mr. Wate and Mr Sato. Whilst the claim contains the names of Mr Wate and Mr Sato it is viewed as irrelevant as they are not parties to this case that cannot warrant a strike out order for being irrelevant. Such can be cured by amendment.

Claim for damages for breach of contract

45.	The argument by the Third Parties is that there is no contractual relationship by themselves with the Defendants, and that has not been pleaded by the Defendants. As such the Third Parties carry no liability at all. The Defendant's case is that it does not bring any claim for breach of contract against Third Parties but a payment should be an amount representing damages for breach of contract; the exact amount will be a matter for the judge at trial.

46.	Reading of S.99 (2) (b) expressly refer to payment of such compensation, and it means recompense, and award of money to recompense a person for damages suffered as a result of breach of contract.

47.	Obviously there has to be an original contractual relationship between the offender that is the Third Parties and the Defendants. Following that is the breach of that contract. My view is that there is none, either in express term or impliedly. However, I take cognition of expression alluded in Atlasview Ltd case which gives discretionary power to the court to award financial compensation to the Defendant, even without buy-out of shares. Such particular form of relief cannot be said to be incapable of being granted. It can be granted upon exercise of the court's discretion.

48.	I also noted the value claim is not quantified, which could have been properly done. Can that warrant a strikeout? Having considered the claim it appears difficult to quantify for the time being because the claim included the First and Second Claimants. At a pleading stage that has to be done. However, it is not too difficult to think over an appropriate figure. That can be done easily. Should it not done at the pleadings, it can be done by a judge in the trial. The Claim for financial compensation is in no way unsustainable, and hence, cannot be strike out. The issue whether the Third Parties acted wrongly or not to secure liability for payment even to the claimants; is a matter for a judge in the trial to consider. 

Purchasing of shares by Third Parties 

49.	The major argument by the Third Parties is that they are not shareholders; therefore not oblige to purchase the First Defendant's shares. If they are to buy those shares, what is the value of the shares? That has not been pleaded. All that the claim covers is share of 11,233,312 against the Claimants and the Third Parties inclusive.

50.	Whilst the Third Party is segregated in body and function, it would, in my view, expect a value figure well identified in shares against them as a separate party. To combine a claim without discriminating a particularised value with the Claimant is injustice. Not only that, but the figure has to be precisely exerted and pleaded.

51.	I agree with the Third Parties submission on this issue. Would it be appropriate for me to strike out the relief for not alluding value indicative of shares the Third Parties oblige to purchase? In my view the problem can be easily cured by amendment. If it can't be so, then am relying on the truthfulness by the Defendant's Counsel to disclose at trial.

Overall pleading

52.	My observation of general pleading is that it is true that there are multiple allegations in some paragraphs, pleads evidence, some irrelevant facts, not brief. However, I have stressed in my previous paragraphs the status of this case is huge and complicated hence require different treatment than usual. Some, if not most, are not frivolous or vexatious but can be cured by amendment. Some are so bad that require immediate striking out. 

Application to strike out certain paragraphs of the counter-claim. 

53.	The application by the Third Parties to strike out certain paragraphs were based on, that they plead evidence and not material facts, embarrassing and vexatious, argumentative and matter of submissions, raise no material allegation and were not pleaded. It appear that some, if not, additional reasons for striking out those paragraphs confine to sentences only as contain in the application itself; which is not elaborated in the submissions.

54.	Where application is confined to a sentence in a paragraph only, then initially, that application is in dire need of an amendment to the paragraph. As such striking out of the entire paragraph is not necessary, in fact not applied for. 

55.	In respond to the application to strike out those paragraphs, the Defendant's counsels allude that the Third Parties application is misconceived. They failed to respond to majority of allegations against them. Simply they fail to adopt a "cards on the table" approach, and hiding behind unmeritorious technical pleading points. That the Defendants have a straight forward case while the Third Parties have gone to elaborate efforts to avoid explaining their actions. To stress a point reference is made to paragraphs 103 and subparagraph 26 (2) (b) of the Defendant's counterclaim. Paragraph 103 concerns the problem between Ms Hall and Mr Tuhanuku which had not set out what happened.

56.	Similarly, in paragraph 25 (13) of the counterclaim which alleged Mr Tuhanuku's son discussed the actions of the company's Senior Management Term with his father. Again the Third Parties do not admit or deny the allegation.

57.	From the above the Third Parties defence does not comply with CPR and in breach of Rules 1.3, 1.8 and 5.4 and they cannot rely on alternative versions of facts unless included in their statement.

58.	Quite a lot has been thrown around in submissions in regards to pleading and failure of the parties to play their cards openly. Whilst that may so, it is relevant to point out that the issue between Ms Hall and Mr Tuhanuku is a criminal allegation which had been dealt with in a competent court of law. In my view the issue does not have any pertinent attachment in relation to the Board's decision to terminate the 2nd Defendant's appointment. Neither does it have any association with the lease agreement of the Tasahe Property, the charter of LC ALCOL, or the Lease of GRP properties at Gizo. The Tuhanuku/Hall issue has no longer persist. If, however, for some reasons that the issue was used as a genesis of this case, that Mr Tuhanuku has breached his fiduciary duties, therefore constitute liability for the Third Parties under Section 99. The fact that the criminal allegation has been acquitted, therefore hold no proper base to argue. 

59.	Further, the general submissions in respect of the paragraphs to be struck out contain arguments shifting blame on each other for not complying with the rules which set out the objectives the parties and the court must give effect. I noted there are references to instances. However, this ruling must base on the issue of pleading as the main focus of the application. One particular reference is made to paragraphs 54 and 55 of the Third Parties reference which I have the privilege to read. I noted the pleading in those paragraphs coincided with the general format of pleading. Should a party fail to comply with the Rules, the other party should capitalise on Rules 5.3, 5.14 and 5.15.

The power of the court to strike out paragraphs

60.	This has been a contentious issue. The defence approach is that Rule 9.75 does not give the court the power to dismiss or strike out individual paragraphs. Whilst it is true of what Lord Hope said in Three Revers DC v Bank of England; "if one part of the claim is to go to trial it would be unreasonable to divide the history up and strike the other parts of it". That comment does not bar the court but gives a lee way for court to exercise its discretion considering the circumstances and the reasonableness of the case. That is, if one part of the claim should go, it would not resonate a full and meaningful claim, making it difficult to determine the issues. 

61.	Further, Rule 5.3 (5) provides a statement of case must set out all relevant facts which a party relies. In all suits parties ensure their case upholds facts which they rely on to support their claim. And in all manners, Counsels do the best they can to advance their claim to trial. There may be several or single claim. With no doubt, it is expected at trial the court will hear and determine the claim. To omit one part out by way of strike out leaves uncompleted case and nothing for the court to determine. Unless the proceedings generally or in relation to any claim for relief under Rule 9.75, the court may order the proceedings or in relation to that claim be dismissed because they fall under one of the categories in Rule 9.75 (a)-(c). My interpretation of Rule 9.75 is that the court has a discretionary power to dismiss the proceedings generally or in relation to that claim, which means should there be a failure to meet the objectives of pleading, then whatever paragraphs of pleading in relation to that claim can be dismissed, unless it can be cured by amendment.

62.	But if in relation to a claim there are paragraphs as part of the claim is to go to trial, whilst others has been strike out, then it would be unreasonable as Lord Hope commented in the above case. Such claim that goes to trial is incomplete and undeterminable. Rule 9.75 has given court a discretionary power to be exercised premise on its wisdom.

Striking out of 87 paragraphs in the counter-claim

63.	The Third Parties application, inter alia, is to strike out 87 paragraphs of the counterclaim because they plead evidence and not material facts. Counsels for the Defendants submit that that has been misconceived. They submit that Rule 5.3(b) does not state that a statement of case must not include other matters or evidence. In fact Rule 5.3 (b) refers to evidence in order to make it clear that it need to be included, and not intended to prohibit the inclusion of evidence. It makes inclusion of evidence permissive but not mandatory. The interpretation of Rule 5.3(b) will be elaborated when specific paragraphs are determined.
 
64.	I have the privilege to read all the 87 paragraphs in the Third Parties submissions. 

65.	The argument in respect to paragraphs 1-4 is that they are not matters for pleading. That is a shallow argument. Those paragraphs are introductory paragraphs for the Defendant's case. In any writing it is a good practice to have opening paragraphs as introductory, outlining in brief what is expected in the main. Those paragraphs are purposely for that and there is no reason to strike them out. Paragraphs 8-11 are paragraphs that introduce the Defendants. I noted paragraphs 9-10 pleaded some evidence but not as severe as to require striking out. 

66.	Paragraph 13-21 related to the purchase of the Shell's Solomon Islands Operation. Paragraphs 13-16 and 20 (7) were objected as disclosing evidence. Paragraph 13-16 contain facts related to the genesis of purchasing of shells. They are more or less providing information's. No issue to argue about. Paragraph 20(7) is a reference to the Management Contract with some quotes extracted as (a)-(h). I don't think they are evidence of material facts. Is it because the clauses are quoted so that the nature changed into evidence. I do not think that is the case. If paragraph 20(7) is to be struck out it will make the entire paragraph meaningless. The best I can do is to refuse striking out the paragraphs.

Paragraph 25 outline events following purchase of Shell operation. 

67.	Paragraph 25 (2) concern with the members of the Senior Management team. I do not see anything wrong with that. Subparagraphs 4, 6-10, 13, are part of paragraph 25. I noted there is evidence in those subparagraphs, however, to strike out some and allow others will make a story incomplete. 

68.	Paragraph 26 and 30 are part of paragraphs which outline profits of the company and share, to be allocated to GRP. I noted there is a lot of evidence pleaded. It can be cured by way of amendment. To strike out is absolutely out of context.

69.	Paragraphs 31-36 are short paragraphs which refer to entering into contract with SIEA at Gizo for supply of fuel. Even if evidence is pleaded it is not severe enough to require striking out.

70.	Paragraphs 39-45, 51, and 53 are part of paragraphs that relate to Gizo lease. Surprisingly seven paragraphs were not objected to, yet carry the same feature of pleadings. To strike out half of the story and allow others is totally unfair to the Defendant. I refuse to strike out those paragraphs.

71.	Paragraphs 54-56 are part of the five paragraphs relates to the removal of the management contract. To strike out two paragraphs and allow three to remain is a bad application. On the face of it, there is no difference at all in pleading in respect of the five paragraphs. I must therefore refuse to strike out those paragraphs. 

72.	Paragraphs 58 and 59 are part of five paragraphs that relate to employment of Ms Azeem, Ms Hu and Ms Hall. Whilst two paragraphs are subject to be struck out, the rest are to remain. There is no difference in pleading. In fact they all plead evidence. To strike out two from the rest is unreasonable. It makes the story incomplete.

73.	Paragraphs 63-65, 71-73 and 76-77 are part of fifteen paragraphs which relate to Tasahe lease. Whilst eight paragraphs are objected to, seven will still remain. There is no difference in pleading in all the paragraphs. In fact to strike out some and allow others to remain is a case incomplete and appear to be difficult to determine on one of the major issue in this case. I therefore refuse to strike out those paragraphs.

74.	The next set of twenty five paragraphs (78 -102) relate to LC ALCOL charter. The Third Parties application is to strike out seventeen paragraphs out of twenty five. I noted evidence is pleaded in some of those paragraphs. A full history was reflected. To strike out some paragraphs meant the claim in relation to the charter arrangement will be unreasonable and incomplete. Therefore I refuse to strike out those paragraphs. 

75.	Paragraphs 104 and 106 are part of four paragraphs that concern Mr Tuhanuku's behaviour. The behaviour is a criminal allegation which has been dealt with by the court. I do not seem to understand why the Third Parties apply to strike out two paragraphs and allow the rest to remain. For reason as stated I will strike out paragraphs 104 and 106 and allow the parties to deal with the rest.

76.	Paragraphs 107-108, 110-113 are part of the paragraphs that deal with the response to Mr Tuhanuku's behaviour. Six paragraphs are objected to. I noted there is evidence pleaded in those paragraphs including the remaining ones. For some reason unexplained the Third Parties had selected the ones they objected. Apparently, by reading those paragraphs Mr Tuhanuku's problematic behaviour does not connect or associate in any way with the counterclaim in this case. May be on personal issues and enmity which form the basis of initial claim against the Defendants. Apparently those paragraphs have little bearing on the major claims. If indeed it was proved that Mr Tuhanuku misbehaves himself then any breaches of his duty, is a matter for the Claimants and shareholders to determine. But would that require payment of compensation as required by Section 99 to the First Defendant and Claimants alike; or would such behaviour tantamount to termination of his appointment as a director; which in my view a normal consequence in such circumstances. In addition, any compensation claim must be equated with the value of loss because of such behaviour and must be pleaded. In this case it was not pleaded. With those reasons I therefore strike out paragraphs 107-108 and 110-113 accordingly.

77.	Paragraphs 115-116, 118, 120-121 are part of paragraphs which relate to the resignation of Ms Azeem. I do not seem to understand whether such paragraphs support the relief sought in the counterclaim or the Defendant's case generally. However, they are facts and information's related to Ms Azeem's resignation which contain evidence and accounts which are irrelevant. Those paragraphs must be strike out.

78.	Paragraph 122 is part of three paragraphs which relate to failure to investigate Mr Tuhanuku's conduct. It has to be reiterated that Mr. Tuhanuku's case has been criminally dealt with by the court. The question whether those paragraphs are still relevant on the basis that they support the relief sought in the counterclaim. I do not seem to think so. And they contain material evidence in regards to how investigation into Mr Tuhanuku's conduct failed. I therefore strike out paragraph 122 accordingly.

79.	Paragraphs 125-129, 131, 133, 137 and 138 are part of twelve paragraphs which relate to Ms Azeem's investigation and attempt to undermine Mr Hemmer. The above paragraphs were objected to on the basis that they plead evidence. The issue of Ms Azeem may not have any association with relief sought by the counterclaim. However, there are paragraphs under the sub-heading which touch on the major issues and claim in this case. To strike out some paragraphs and allow others to remain will make the issue under the subheading half told. There may be evidence pleaded, but it would be necessary to understand a complete story. With those reasons I refuse to strike out those paragraphs.

Paragraphs pleaded more than one allegation

80.	The next 61 paragraphs as submitted by the Third Parties plead more than one allegation, therefore are embarrassing and vexatious. Not only that but they are also argumentative and matter of submissions. I have read each paragraph to verify what was alleged.

81.	Paragraphs 9 and 10 are part of four paragraphs that name the Defendants as parties. It briefly introduces the experience of the Second Defendant and his involvement in operating GRP at Gizo. I have noted no double allegations. Even if there is, this court is not informed specifically of more than one allegation in those paragraphs. As such it is hard to see whether they are embarrassing, vexatious and argumentative. Therefore I refuse to strike out those paragraphs.

82.	Paragraphs 13-16, 19 and 20 (7) are part of the paragraphs that relate to the purchase of shell's Solomon Islands Operation. I have dealt with the same paragraphs as alleged to have pleaded evidence. Now the Third Parties submit they plead more than one allegation and are embarrassing, vexatious and argumentative. If they plead more than one allegation it has to be pointed out with clarity. The same if they are embarrassing must be pointed out, or argumentative in what way. It is insufficient to allege a paragraph containing two allegations, argumentative, embarrassing and or vexatious and no explanation is given at all. I therefore refuse to strike out those paragraphs. The paragraphs are part of section F that deals with purchase of shell and would not be reasonable to strike out one part of it.

83.	Paragraph 25 has eighteen subparagraphs. Seven subparagraphs were objected to by the Third Parties for pleading more than one allegation, embarrassing and vexatious and also argumentative and matter of submissions. No explanations are given in relation to the reasons for striking out. It gives no assistance to the court to decide whether those paragraphs contain the nature as alleged. There is nothing wrong with subparagraph (4) in all respect. There are some argumentative sentences in subparagraphs 6,7,9,10 but I do not think they are severe enough to warrant striking out.

84.	Paragraphs 39, 41, 44, 49, 51 and 53 are part of fifteen paragraphs that deals with the Gizo lease. This is one of the contentious issues in this case, and a major one as well. To strike out the above paragraphs would not connect the story well. It is considered reasonable not to strike out any of the paragraphs under the Gizo lease sub-heading. Whether the paragraphs plead more than one allegation or not is not an overriding fact. The fact is that the entire story should not be disturbed and must remain intact. I noted there is no double allegation in paragraph 39 for instance. However, paragraph 41 has it. My view is that this is a huge commercial case and Halsbury's laws pointed out that pleading can be expected to be flexible in commercial cases. In addition Lord Hope's comment cemented the fact that to strike out part of the story is unreasonable. I therefore refuse to strike out those paragraphs.

85.	Paragraph 54 is part of four paragraphs which come under the subheading renewal of management contract. Upon perusing the paragraph it does hold more than one allegation. In fact the paragraph contains material facts, no more or less. It cannot be said as embarrassing and vexatious and argumentative. I refuse to strike out the paragraph.

86.	Paragraph 58-59 and 62 are part of five paragraphs that deal with employment of Ms Azeem, Ms Hu and Ms Hall. It would appear pleading in those paragraphs are undistinguishable. None of them plead more than one allegation and amount to embarrassment and argumentative. I do not seem to understand whether they are matter of submissions, and whether they are relevant to the relief sought. To strike out three paragraphs out of five is unreasonable. It does not make sense to the paragraphs. It would be a story uncompleted. I therefore refuse to strike out those paragraphs.

87.	Paragraphs 63-65, 69, 70, 73, 76-77 are part of 15 paragraphs that relate to Tasahe lease. Take for instance paragraph 64, no implication that there are the two allegations pleaded in that paragraph. There has been no explanation as to such. The issue of Tasahe lease is one of the major claims in this case. Therefore, to strike out some paragraphs is quite unreasonable; it makes facts related to the issue incomplete. I consider those paragraphs to remain as they are.

88.	Paragraphs 78-79, 81-85, 88-93, 98 and 102 are part of the twenty five paragraphs that relate to LC ALCOL Charter. This issue is one of the significant parts of the claim in this case. I noted that paragraphs 79, 81-82, 91, and 98 for instance plead more than one allegation. Some paragraphs appear to be argumentative. Where argumentative is identified in the pleading stage, that would mean the issues are becoming clear before they go to trial. To strike out the exceptive paragraphs and allow others to remain would give no proper connection to the entire facts. In that instance I refuse to strike out those paragraphs.

89.	Paragraphs 107-108, 110, 112-113 are part of eight paragraphs that concern with the response to Mr Tuhanuku's behaviour. The reason alleged for striking out those paragraphs is because they plead more than one allegation, therefore embarrassing and vexatious, argumentative and matter for submission. I find on reading paragraph 108, it reveals nothing in respect of multiple allegations. The same is noted with other paragraphs as well. Indeed they are argumentative paragraphs, but there is no explanation as to how they are embarrassing or vexatious. 

90.	One thing I noted in those paragraphs concluded by alleging Mr Tuhanuku undermines Mr Hemmer's position and has created personal enmity with Mr Hemmer. It boils down to the fact that the issue has been personalised. As they are, they do not connect to major claim in this case. In my observation they have nothing to do with the claim at all. I would rule that the above paragraphs be struck out.

91.	The next lot of paragraphs applied to be struck out are 115, 118, 120-121. Those paragraphs are part of seven paragraphs pertaining to Ms Azeem's resignation. They in all comprise of a logic and reasonable story. The question is, are they relevant to the claims and the relief sought by the Defendants. I do not seem to think so. It is another independent incident dragged into the whole entire case. Therefore they have to be struck out for being vexatious. 

92.	Paragraphs 122-123, are part of the three paragraphs that relate to failure to investigate Mr Tuhanuku's conduct. The Third Parties rely on the following grounds to strike out the paragraphs; that they plead multiple allegations, embarrassing, vexatious and argumentative and matter for submission. I noted the paragraphs under this sub-heading can be concluded by saying that Mr Tuhanuku deliberately prevaricate and obstruct any investigation of his conduct. However there is nothing in those paragraphs relate to relief sought or claim by the Defendants. The issue of Mr Tuhanuku's conduct is an independent one which has been dealt with. It may be the cause upon which this case germinates which remains a concern to the Defendants. However, my view is that the claims as being the basis of this case and relief sought by the counterclaim has no connection whatsoever with the behaviour of Mr Tuhanuku. I therefore strike out those paragraphs for being vexatious. 

93.	Paragraphs 131 and 133 are part of twelve paragraphs which deal with Ms Azeem investigation and attempt to undermine Mr Hemmer. Whilst all paragraphs are similar in construction and pleading, the reason to strike the two paragraphs, for pleading multiple allegations therefore embarrassing and vexatious hold no ground. I cannot see both paragraphs differ in the manner they plead from the rest of the paragraphs. It may perhaps amount to argumentative, but are not serious evidence to require striking out. To allow the paragraphs to remain will enhance a full history. This section of pleading canvas part of the issue relevant in this case. To strike out some, of course, be unreasonable. I therefore refuse to strike out those two paragraphs.

Paragraphs pleaded against Third Parties but raise no material allegations.

94.	Counsels for the Third Parties submit that there are forty one paragraphs in the counterclaim that are pleaded but raise no material allegations against them. Submissions in respect to the paragraphs are general with one or two references. In fact that also applies in respect of the whole entire case. And that has been done by all the parties. My expectation is when each individual paragraph is referred to or subject to argument, there has to be some explanations, so as to assist the court consider and determine each individual paragraph without difficulties and in a timely manner.

95.	Since less has been done, I have decided to take the time, though winding, to examine each individual paragraph separately.

96.	Paragraphs 19 and 21 (2) are part and partial of nine paragraphs which relates to purchase of Shell's Solomon Islands Operation. Counsel for the Third Parties submits that the two paragraphs did not allege that Third Parties were directors of NPF, and therefore not liable for their actions.

97.	I have read the paragraphs and I agree with submissions made by the Third Party's counsel. Third Party is a separate party in this case. If the Third Parties are to be part of the relationship or trust in the Head Agreement that should be alleged in the pleadings. This is important because the bond of that relationship will create, under which, each has fiduciary duty to act. It is not clear what the Third Parties would like the court to do. There is no mention of striking out any paragraph under this sub-heading. 

98.	In respect to paragraphs 21(3)(b); I agree with the Counsel for the Third Parties that the paragraph pleaded no material fact at all. At the same time there is no expression as to any striking order. I feel I could not possibly exceed beyond what is not sought and refuse to strike out the paragraph.

99.	Paragraphs 25 (6) – 25 (7), 25 (9) – 25 (10), 25 (12), 25 (14) and 25 (17), are part of fifteen paragraphs which relate to purchase of shell's operation. The argument is that those paragraphs do not plead what the Third Parties knew and the allegation concern events that occurred before some or all of them were directors. My reading of subparagraphs (6) and (7) indicate the actions and the authority of SMT was not done in secret and the directors are well versed with the functions of SMT.

100.	Subparagraphs (9) and (10) concern trading between the company and GRP, which is again not a secret activity. The directors are well versed with various meetings held between the directors and SMT. It would be noted that SMT has authority to authorise such trading and approval by the directors is not necessary.

101.	The allegation in those subparagraphs together with the preceding paragraphs is that authority of SMT to authorise and approve the activities of the company was not questioned by the directors, whoever they are, at that time. I see there is nothing wrong with those paragraphs.

102.	Paragraphs 25 (5) is argued on the basis that there is no pleading that any of the Third Parties have breached Article 47 of the Articles of Association of the First Claimant. Apart from a brief written submission, there is no further explanation. It would not be appropriate to comment more on this paragraph.

103.	The next thirty paragraphs, paragraphs 26, 31-36, 37-38, 39-53, 54-57, 102 and 137-138 are argued to have raised no material allegation against the Third Parties. There is no specific submission on those paragraphs except of a general nature. I have read paragraph 26 with parts as an example. I found there is nothing contain in the paragraph amounted to allegation against the Third Parties. However, they in fact refer to reports tabled in meetings concerning profitability which was accepted or consented that entitlement shares be transferred to GRP. The paragraph may not allege any fact against the Third Parties directly, however, any transfer of shares has to be considered and given approval by a decision of the directors.

104.	Paragraph 31-36 concern with the company's use of the Gizo Deport. The rational supporting this paragraph is that the arrangement that the company to use GRP as a subcontractor to distribute fuel in Gizo is an activity that the Third Parties had been fully aware of. It would appear the allegation which may seem apparent is that the Third Parties were aware of the activities the company indulge in but yet resort to no objection.

105.	This is one of the major issues in this case. An issue which would appropriately left for the trial court to determine on the motive and the validity of the subcontracting arrangement. There is nothing wrong with those paragraphs.

106.	Paragraphs 37 and 38, upon reading, may not directly raise any allegation against the Third Parties, but the company had entered into a contract to supply fuel to SIEA, the Third Parties are aware of, yet no objection was advanced. That perhaps is the core of the Defendant's case.

107.	The same can be said in regards to paragraphs 39-53. They do not raise any allegations against the Third Parties directly and pleaded. It appears the objective of the paragraphs are to reveal the activities the company engage in under the management of 2nd Defendant, of which the Third Parties were fully versed with without any objection.

108.	If for some reason the paragraphs do not raise any allegation against the Third Parties, then alternatively it may raise allegation against the other Claimants. This is where pleading is important so that issues between various parties be identified. After then it will clearly show which allegations are against the Claimants and which allegations are against the Third Parties.

109.	Paragraphs 54-57, again seem to raise issues that there is no material allegation against the Third Parties. Those paragraphs touches the issue whether to renew Mr Hemmers Management contract which subsequently agreed to by the directors. Those paragraphs may not raise an allegation as an issue. But they seem to open up transparency as to how the company was managed. And the fact that the management activities is not something concealed from the directors of the company. I see nothing wrong with those paragraphs.

110.	The allegation against Third Parties in paragraphs 137 and 138 is clear as crystal. That the Company's employee was threatened by NPF Directors not to move into Tasahe Compound. If they choose to do so will be dismissed. The allegation is that the directors were violating the lease agreement of Tasahe property. Whoever were the directors at the time the employees prepared to move into Tasahe compound are alleged to be involved. To identify a particular Third Party is a matter for evidence in the trial court.

Allegation against directors without discriminating whether any of the Third Parties were involved.

111.	Paragraphs 25(4) - 25(10), 25 (12), 25 (14), 30, 36, 46, 50, 62, 70, 99 and 139. Those paragraphs alleged that they make allegations against the directors of the company, or the NPF directors without specifically discriminating whether any of the Third Parties were involved. Subparagraphs of paragraph 25 did not make reference to a particular director. Upon reading subparagraph 4, it indicates to me that reference can be made to any Third Party who was a director from around July 2007 and forward. From that date on until termination of all contracts, the allegation raised was that the directors at that time were aware of the decision made by SMT in relation to the activities the company engaged in advancing its business strategy. It is not an allegation targeting a particular Third Party, but directors since July 2007. If one or two of the Third Parties were appointed within that period then the allegation is raised against them.

112.	Paragraph 30 sets out appreciation by NPF Directors on Mr Hemmer's performance and his effort in managing the company. The paragraph did refer to NPF directors. If some of the Third Parties were directors of NPF before 22 May 2010, then they fall under this appreciative paragraph. There is nothing to discriminate.

113.	Paragraph 36 refers to previous five paragraphs which reflect the company's activities by using GRP as subcontractor to distribute fuel in Gizo. The same arrangement was made with AE Eke's deport in Auki town; and Kapu brothers in Lata town. Those activities were within the knowledge of the directors of the company and NPF directors. Particular Third Parties name is not mentioned but that can be calculated from June 2007, whoever one or two Third Parties were the directors, either of the company or NPF; they were involved and aware of the companies activities.

114.	Paragraph 46 refers to the takeover of the GRP's Gizo operation by the company. The allegation is that the directors of the company and NPF were aware of that including purchase of GRP's equipment, but they have not objected to it. In fact such purchases were approved of and or ratified by the NPF. Whichever Third Party was involved were those who were directors at the time of the purchase. It is not difficult to identify them. Perhaps that may wait until the case goes to trial. There is no need to identify or discriminate a particular Third Part who involved by approving or ratifying the purchase transaction.

115.	The same can be said with the Gizo Deport lease. The Third Parties refer to it in paragraph 50. Again whoever directors of NPF at the time of the lease agreement, aware of the transaction yet fails to object? A particular Third Party can be identified. Where a process is available to identify a particular director or Third Party, it is my respectful view that it is unreasonable to discriminate their involvement. The paragraphs that are listed under the heading of the submissions could rightfully be determined at trial rather than at this stage.

116.	Paragraph 62 has identified Mr Tuhanuku as signing an employment contract under which Ms Hall was employed. It is clear that one of the Third Parties had involved, it is not relevant to seek discrimination of an involvement of Third Party.

117.	Paragraph 70 specifically identified Mr Tuhanuku being aware that SMT was considering entering into Tasahe lease. It was a delegated authority by the directors, and one of them was Mr Tuhanuku for that purpose. It would be improper and unnecessary to seek or discriminate which Third Party was involved. The pleading is clear and has been stated by the paragraph itself, that one of the Third Parties has been specifically named.

118.	Quite differently, paragraph 99 did mention directors of the company including NPF directors aware of the nature of LC ALCOL charter. There was no indication which Third Party actually involved. However, my view is that whoever directors were at the time when the charter was finalised are the directors the paragraph refer to. It is not necessary to actually discriminate by name which director. That may perhaps emerge at the course of trial. 

119.	Paragraph 139, like paragraph 99, did mention NPF directors excluded Mr and Mrs Hemmer from the management of the company. There is no name actually mentioned. However, the paragraph specifically mention 22 May 2010, as being the date the NPF directors excluded Mr and Mrs Hemmer. Whichever directors whose appointment was still valid as of 22 May 2010 are the directors the paragraph refer to. It is not relevant to actually discriminate which particular director involve. It is a matter that may emerge at the trial.

Allegation of irrelevant paragraphs:

120.	It is submitted that paragraph 71 is irrelevant. The allegation in the paragraph is that since the company entered into Tasahe lease Mr Tuhanuku and Mr Sato has also let their properties to the company without disclosing such transactions or in their interest to the company's directors. As such is contrary to the provisions of the Companies Act. The logical conclusion is, why terminate Tasahe lease whilst you are doing it. This is childish approach, and of course is irrelevant.

121.	The allegation in paragraph 130 is that without authority Mr Tuhanuku with NPF acted through its Chairman and General Manager purported to issue this proceedings on behalf of the company. I don't see any irrelevancy on that. The Paragraph appears under sub-heading attempt to undermine Mr Hemmer and is a relevant paragraph.

122.	Paragraph 136 is a summing up paragraph. It indicates that the company had no right to terminate all the contracts. In doing so committed repudiatory breaches. If the paragraph does not allege a case against the Third Parties, it definitely does so against the Claimants. This is where the core of this case lies. I do not think the paragraph is irrelevant.

123.	The Third Parties allege that paragraph 124 is irrelevant. That paragraph is part and partial of the two previous paragraphs. As such it is difficult to exclude it. It is not an isolated paragraph that stands alone. There is no reason given why it is irrelevant. If the Third Parties have allowed Mr Tuhanuku to act then that is an allegation which requires pleading to ascertain the issue. That is the objective of pleading, to compel parties to state their case more clearly.

124.	Paragraphs 104 and 106 are part of paragraphs in section (O). 2 of the paragraphs in section (O) have been struck out for being irrelevant. To refer to the entire section by way of reference in paragraph 142 is further bad. Mr Tuhanuku by acting improperly and for his own purpose resulted in a criminal charge against him which subsequently was acquitted. Therefore paragraph 142 is bad still. Following that, those two paragraphs are irrelevant.

Further and better particulars:

125.	Counsels for the Third Parties have applied to strike out certain paragraphs of further and better particulars. They submit that the particulars provided by the Defendants did not support the counterclaim. For instance paragraph (1) contain a single response made to the Claimants and also to the Third Parties and was not differentiated as to which paragraph pleaded directly in response to the Claimants request and which paragraph directly response to the Third Parties request for the further and better particulars.

126.	In deed there are difficulties confronted by this case in the pleading stage. The fact is that the Claimants and the Third Parties have separate legal representatives and it is expected that particulars in response must be separated and explain with clarity. Rather than focussing on that point, the Third Parties opted to attack further and better particulars on the grounds of improper pleadings, particulars be ordered to be provided and argumentative. To do justice to the case ruling must align to the application as constructed. That consideration is given to each paragraph alleged to have fallen under one of the three categories.

127.	The argument advance by the Defendants is that the Third Parties have failed to provide proper grounds for their application, yet stated they are entitled to the particulars requested. This is insufficient and not complying with the overriding objective to deal with the case justly with minimum delay. That has prevented the Defendants from preparing properly for hearing.

128.	On the outset it is relevant to consider the procedural history. On 30th March 2011, the Claimants filed amended further amended claim. On 9th March 2011, the Defendants filed a defence and counterclaim. On 24th June 2011, the Third Parties served request for further and better particulars. On 25th November 2011, the Defendant filed objection to the request and provide particulars of the counterclaim.

129.	As it appears the particulars are filed before the defence to Defendant's defence by the Third Parties. The first nine paragraphs of the particulars contain reasons for objection to the request for further and better particulars. In fact the particulars did indicate that the response was to the Claimant's request for particulars of defence and counter claim dated 30th June 2011. In that instance it is difficult to site any response concerning the particulars requested by the Third Parties dated 24th June 2011. There is no attempt made to separately consider pleading a case against the Third Parties, as opposed to the Claimants. As I have said earlier that alone upholds a ground, but the Third Parties opted to attack certain paragraphs individually, other than focussing on response to their request.

130.	In any case the Third Parties have applied to strike out paragraphs 1, 2 and 4 of the particulars as being improper. From reading those paragraphs they seem to concern request filed by the Claimants and there is nothing concerning the request for particulars by the Third Parties. By paragraph 7 the Defendant's draw conclusion to the fact that the request is clearly offensive and improper and it runs 229 paragraphs and 49 pages. That clearly reveals that those paragraphs concern the Claimant's request for particulars and nothing to do with the Third Parties. To apply to strike out a paragraph that does not concern them and does not reply to their request is totally misconceived.

131.	Paragraph 15 (1) is a response to the request made in paragraph 96 by the Claimants. The request was made following paragraph 9 of the counterclaims which refer to the Second Defendants status as a Solomon Islands Citizen. Request for particulars under paragraph 96 (a) is well answered in paragraph 15 (1) of the response. Paragraphs (b) – (c) are requests for further detail information about the Second Defendant's previous status in terms of nationality, any renunciation of passport. The Defendant's response is that the Claimants are not entitled to such information. The question is, are those information requested relevant? Unless they are issues which validly relate to this case, which I doubt it does. By seeking more information about previous nationality, renunciation of passport is asking for evidence including documentary evidence. I noted this case has not reached the disclosure stage. To attempt to obtain from the Defendants to provide disclosure and set out their evidence is pre-empting the Defendant's case. I must refuse to strike out and no order made for particulars be provided.

132.	The next two paragraphs to be strike out and order particulars be provided is paragraphs 16 (1) and 16 (3). From the particulars provided by the Defendants there are no such paragraphs exist. The only paragraph refers to without prejudice is paragraph 4 (b). The paragraph is part of other paragraphs that refer to paragraph 97 of the request. I noted the request is of a nature of seeking evidence, in particular paragraphs 97 (c) – (d). However the answer given as response on paragraph 16 (4) (b) appear sufficient. I do not seem to know what facts were the Claimants or the Third Parties require. There is no explanation of any necessity. I refuse to strike out the paragraphs and refuse to make an order for particulars be provided.
133.	Paragraph 46 is a response to paragraph 127 of the request. Paragraph 127 is a request for further and better particulars of paragraph 26 (3) of the counterclaim. Paragraph 26 (3) concerns with the 2009 profits which was shown by audited financial statement, and was signed by Mr Wate as agent of NPF. The same financial statement for 2009 was accepted by the directors at the meeting on 29/03/2010. At the said meeting it was agreed that 2,808,226 shares be issued to GRP.

134.	Against that background information paragraph 127 request Defendants to provide the financial statement, facts and matters relied on that Mr Wate was an agent of NPF, minutes of the two meetings and facts, matters and circumstances relied on that the 2009 financial statement was unanimously accepted by the First Claimant's directors.

135.	In respond to paragraph 127 of the request, which contain in paragraph 26, I do not see that they are argumentative. In fact the response has provided what has been requested and there is no irregularity or insufficiency in it. It is straight forward and to the point. No reason to strike out and no order is made for particulars be provided. It is ridiculous that after response is made to the request, then an application to strike out ensured. 

136.	Paragraphs 26 (3) and 99 are alleged to be argumentative rather than in the nature of particulars, therefore must be struck out. Paragraph 26 (3) make reference to minutes of four different meetings, and the quorums. It is a respond to paragraph 107 of the request. Originally paragraph 23 of the counterclaim refers to the directors in paragraph 22 who acted as agents of NPF. When request was made for further and better particulars by the Claimants in paragraph 107, it seems to me as they asking for further evidence. The Claimants have requested for identifications, date of dealings, their substance and effect. It is premature to ask for disclosure at this stage. I refuse to strike out the paragraphs.

137.	Paragraph 23 of the counterclaim contains single sentences that allege directors of NPF are agents. That can be simplified rather than requesting bulk of information, source of which are irrelevant. In response to that, the Defendants refer to minutes of the meeting in paragraph 26(3) which to me differs from the request. One thing to note is that when a request is beyond the subject, you expect an answer which may deviate as well. I refuse to strike out paragraph 26 (3).

138.	Paragraph 99 is a respond to requests under paragraph 212-214. The requests are in respect of emails, letters, resolutions and minutes of various meetings, and reference is made to twelve paragraphs in the counterclaim. On reading paragraphs 99 it clearly states that there was no general meeting on 20th May 2008 as referred to in paragraphs 121 and 127. Paragraph 99 (2) clearly states that Defendants have provided copies of documents requested with particulars. If that is true why apply for striking out when response to request is well provided. I must also refuse to strike out paragraph 99.

Paragraphs not properly answered:

139.	There are about thirty paragraphs the Third Parties allege to have been requested but not properly answered. Therefore plea that the particulars should be properly answered. I have read all the paragraphs in response to the paragraph that provide requests.

140.	Paragraph 18 which cross refer to paragraph 25 (1) of the response contain particulars of negotiation between NPF and Mr Hemmer that Mr Hemmer be a managing director in accordance with paragraph 17 of the counterclaim. The Third Parties allege that the response in paragraph 18 does not answer their request on paragraph 11. The request that the Defendants provide facts, matters and circumstances that NPF had the intention to appoint Mr Hemmer as managing director. By reading paragraph 18 as a whole in particular subparagraph (1) - (5), clearly the intention was held by a number of people in paragraphs (2)-(5). I think paragraph 18 has provided sufficient particulars to request under paragraph 11. Hence, there is no need to pressure the Defendants to answer to the request.

141.	It is requested in paragraph 22 as to how the Second Defendant required reporting to the company directors. Paragraphs 29 and 23 (4) of the response were provided to request made by paragraphs 110 and 104 respectively. There was no response to the Third Parties request at all. In fact, as clear as it is, there is no separate response to the two sets of requests. If I should refer to paragraph 22 of the Third Parties request it did not correspond to paragraph 29 and 23 (4) because both respond to two different paragraphs of request and not paragraph 22 of the Third Parties request.

142.	Earlier on in this ruling I mention that there is no separate respond by the Defendant in relation to the Third Parties request. And that has been a serious issue itself, rather than engaging in paragraphs which do not correspond to the Third Parties pleading. It appears that the Third Parties attempted to push their way into the process so that they could obtain an answer to their request. It is difficult because each paragraph of response, directly related to, and refers to the paragraph of request. Therefore to be fair to the Third Parties I therefore ordered that paragraphs quoted in 40 (b)-(r) in the submissions require a direct response from the Defendants to those requests.

The application by the Claimants: 

143.	The application by the Claimants comprises of two limbs. One that the second and third Defendant's counterclaim against the Claimants be struck out on the basis that it did not disclose a reasonable cause of action. Secondly, there are certain specific paragraphs which the Claimants seek to strike out on the grounds that they plead irrelevant facts to the relief claim, plead evidence and not material facts, and plead more than one allegation, therefore embarrassing and vexatious.

Second and Third Defendants' counterclaim 

144.	The Claimants have applied that the Second and Third Defendants' counterclaim be struck out for disclosing no reasonable cause of action. The Counsel for the Claimants urge this court to take into consideration the relief claimed by each of the Second and Third Defendants in the counterclaim, which based on damages for breach of contract and claim for relief under Section 99 of the Companies Act 2009. 

145.	It would appear that this application is similar in nature to the application file by the Counsel for the Third Parties. It is perhaps for the same reason that Counsel for the Defendants submit that these applications are joint applications.

146.	Because of the similarity of the applications I do not intend to venture into repetition of my decision. I consider relevant, that in regards to the issue of damages for breach of contract, I refer to the rulings I make in paragraphs 45-48, and in relation to issue under Section 99 of the Companies Act, I cross refer to paragraphs 25-30 of this ruling, and I do confirm to be my valid rulings. The Second and Third Defendants are not proper parties to claim such relief therefore be struck out. Technically they may acquire some benefits from the shares the First Defendant has in the company but there is no direct link that binds them with the Claimants.

Specific Paragraphs sought to be dismissed:

147.	 The Claimants seek to strike out paragraph 1- 4 because they contravene Rule 5.3, they do not plead facts that are relevant to the relief claimed. I have read the respective paragraphs and Rule 5.3. Those paragraphs by nature and feature are introductory paragraphs. A common practice in any writing that an introductory paragraph introduces to readers the content of the writing. The argument that they do not plead facts; then what is it that they plead. There has to be explanation. No such explanation. I accept Mr Maikin's submission that they are mere introductory paragraphs, therefore not irrelevant under any of the two categories for that purposes. I therefore refuse to strike out those paragraphs. 

148.	Paragraph 16 is part of nine paragraphs in relation to the purchase of Shell's Solomon Islands Operation. I noted there are two allegations under the paragraph. Would that be sufficient to guarantee a striking out? Is it irrelevant because it contains pre-negotiation evidence which is not relevant to this case? Is it vexatious and embarrassing, or if so, in what way. My reading of the section is that there is no difference in a manner of pleading concerning the nine paragraphs altogether. To strike out one is absolutely meaningless. I therefore refuse to strike out the paragraph. 

149.	Paragraph 21 (3) (b) is also part of Section D under which I have dealt with in paragraph 16 above. Paragraph 21 (3) (b) is an alternative to paragraph 21 (3) (a). In fact subparagraph (3) (b) concerns with GRP's right pursuant to the agreement. What the paragraph is saying is that GRP has the right to prevent NPF from acting in anyway inconsistent with Mr Hemmer's entitlement. This appears to be a protective paragraph in which GRP act as a shield. There was nothing to do with the breach of any agreement. Paragraph 21 (3) (b) is more align to the line of argument advance by the Claimants yet there is no striking out sought. Paragraph 21 (3) (b) is more difficult because it speaks of GRP's right to protect than Mr Hemmer himself. I refuse to strike out the paragraph.

150.	Paragraph 25(4) is part of Section F in the counterclaim. There are eighteen subparagraphs in all. The above paragraph was objected on the ground that it is not relevant to the relief sought. The question is, is that the only paragraph that is irrelevant. If so the rest are relevant to the relief sought. To strike out one and allow the rest is unreasonable. The authorities I refer to at the beginning of this ruling provide pertinent guidelines to pleading. If the paragraph is so bad that it require striking out and that should be the only option left. It has to be understood that this is a huge commercial case which require different treatment from others. And of course I would reiterate again, the comment by Lord Hope in Three Rivers case "if one part of the claim is to go to trial it would be unreasonable to divide the history up and strike the other parts of it".

151.	Paragraph 25 (4) is part of the history in Section F. It may perhaps contain what claims to be evidence as a part of the history. To strike out one paragraph is unreasonable. With those reasons I refuse to strike out the paragraph. The same can be said in relation to paragraph 25 (7) which also part of Section F.

152.	The objection in paragraph 25 (15) is that where there is an allegation against a director, the shareholders of the company have the right to raise such issue and not the Hemmers. That paragraph does not state or allege a right of a person to raise an allegation against a director, who has conflict of interest. The paragraph merely state that director should comply with the approved procedures that deals with conflict of interest. There are two different and unrelated issues, they are not and the same. Again this paragraph is part and partial of paragraph 25 with 18 subparagraphs. To strike out one will render the history unreasonable. I therefore refuse to strike out the paragraph.

153.	Paragraph 49 carries the same reasons for striking out as advance by the Counsel for the Third Parties. Paragraph 49 is part of fifteen paragraphs under Section J, the Gizo lease. If paragraph 49 is the odd paragraph out, what is it in paragraph 49 which make it indifferent to the rest of the 14 paragraphs? I do not seem to see any difference in relation to pleading. There is no explanation as to any difference in the nature of pleading at all. If the paragraph pleads more than one allegation, therefore tantamount to embarrassing, vexatious, argumentative and a matter for submission, that has to be clarified in the manner the sentences were used, restricted to the boundary permissible. There has been no clarification that the paragraph contains forbidden nature in pleading. I have observed no difference in the construction of all the paragraphs of the section. Perhaps it would be in the best interest of justice not to strike out to allow a meaningful history exists.

154.	Paragraphs 58-62 relate to the employment of Ms Azeem, Ms Hu and Ms Hall. Those paragraphs concern the procedures adopted in employing those officers. I do not seem to see what is it in those procedures that are relevant to the relief sought by the Defendants. It appears those paragraphs exist in total isolation from the defence case and relief sought. I agree they are irrelevant and should be strike out.

155.	Paragraphs 103-106 concern with Mr Tuhanuku's behaviour towards Ms Hall. I have read those paragraphs in full. The motive for incorporating those paragraphs in the pleading is not so clear. However, the objective may embrace the fact as a director of NPF, Mr Tuhanuku owes to the company duties to act in good faith and to act in a manner that he believed to be in the interest of the company. If that is so, there are procedures in place to deal with such misbehaviour if proved to be so. Secondly if the criminal allegation is proved, then what effect does it have on the company? If so can that be measured in monetary term? Nothing has been pleaded. It is purely assumption that action of Mr Tuhanuku is detrimental to the company of which is not valued. In the absence of such, and in normal circumstances, it is optimistic Mr Tuhanuku will receive his marching orders, no more, no less. At the same time is responsible to recompense a person for his action pursuant to Section 99. However, the situation of Mr Tuhanuku, in my view is quite remote from the true meaning and requirement of Section 99 of the Companies Act.

156.	Eventually Mr Tuhanuku was acquitted following a full criminal trial. Therefore the criminal allegations against him as stated in the paragraphs become irrelevant and unsustainable; and should be strike out, and I do so accordingly.

157.	Paragraphs 107-114 relate to actions taken following the allegations made by Ms Hall. This set of paragraphs follow on from the previous four paragraphs. In fact they seem to deal with the same issue. The concluding effect in regards to these paragraphs is an allegation that Mr Tuhanuku was undermining Mr Hemmer's position to avoid such investigation. Apparently there was nothing deterring criminal investigations into Ms Hall's allegations. Charge was laid and Mr Tuhanuku was acquitted by a competent court of law. On what ground would those paragraphs remain on course. The allegation has been dealt with. There is no detrimental effect to the company, nothing eminent so far. With those reasons I find there is no relevancy for those paragraphs to remain on foot. They are not relevant to the relief claim and to the issues as well, therefore those paragraphs be struck out.

158.	Paragraphs 115-121 relate to Ms Azeem's resignation. In short the Board had accepted Ms Azeem's employment following her appeal from Mr Hemmer decision terminating her employment. If there are provisions in the employment contract to appeal a decision made by the Managing Director, then so be it. The Board has discretion to make its own decision. If the Defendants thought that this was wrong and detrimental to the company then point out by way of pleading. There was nothing done to correspond to the relief sought.

159.	Again this is an independent issue. It has nothing to do with the relief claim by the Defendant. As such is irrelevant and I must strike out all the paragraphs.

160.	Paragraphs 122-124 deals with the issue of failure to investigate Mr Tuhanuku's conduct. These paragraphs derive from paragraphs in Section O and Section P which I have succinctly deal with. The crux of these paragraphs is that as a result of Mr Tuhanuku's deliberate prevarication and objection, no investigation has ever been conducted. That may be true so far as the company is concerned. But that has not thwarted an investigation by Police which subsequently Mr Tuhanuku was charged for a criminal offence. The charge has been processed through the normal judicial proceedings. In the end Mr Tuhanuku was acquitted of any criminal offence. 

161.	The question why those paragraphs still remain on paper is a mystery. They do not worth value as an issue for deliberation. They become redundant and irrelevant and are fit to be strike out. I must strike out those paragraphs accordingly.

162.	Paragraphs 125-138 relate to Section S which contains the Azeem investigation and attempts to undermine Mr. Hemmer. Paragraphs 125-133 specifically confine to the Azeem investigation. Paragraphs 134-138 concern a significant part of this whole entire case where the company directors met on 22nd July 2010, and passed six resolutions to terminate all the contracts, remove Mr Hemmer as a Managing Director and commerce the current legal proceedings.

163.	The question to ask is what is the connection between the Azeem investigation and the resolutions reached by the company directors. Upon reading the paragraphs, I noted in paragraph 27 there was a propose resolution that Ms Azeem be appointed and require to provide reports to the directors on Gizo lease, Tasahe lease, LC ALcol Charter and other financial affairs. Those connections may provide a history of what the section intends to reflect.

164.	There are no explanations given whether the six resolutions reached by the company directors followed on from an inquiry report submitted by Ms Azeem. It appears the dates of meetings seem quite close and would not be appropriate to inquire and submit a report in a short span of time. As it seems the six resolutions were made independent of any report, therefore it cannot be said that the two set of facts did connect, so as to create an unbroken history. In that regard, and without doubt, the Azeem investigation is irrelevant to the relief claim, therefore paragraphs 125-133 be struck out.

165.	Paragraph 141 of the counterclaim is a paragraph of its own. It highlighted Mr and Mrs Hemmer's response to Ms Hall's report of what Mr Tuhanuku alleged to have been done. I have dealt with the issue of criminal behaviour of Mr Tuhanuku; and I have strike out paragraphs intended for pleading in that incident. It's an issue which had been dealt with by the court of law and should now be foregone. It is a paragraph irrelevant to the relief claim and should be strike out.

166.	Paragraphs 142-148 relate to NPF directors breaches of duty. The Counsel for the Claimants argue that the paragraphs do not support any relief claim against the Claimants. It has to be noted that the Defendants defence and counterclaim and relief sought are from both the Claimants and the Third Parties inclusive. Should it not concern the Claimants, then, by common sense, it is against the Third Parties.

167.	On a wider perspective the paragraphs seem to admonish allegations of breach of duty in generic term with some specifications. In fact they are sum up paragraphs. However, they focus on failure to investigate Ms Hall's issue, conducting of meeting without prior notice issues, decision to accept Ms Azeem's appeal, fail to exercise independent judgment, failing to comply with the company's constitution, acted in bad faith, acted for no proper corporate purpose but to further the company's claim against the Defendant or eventually excluding Mr Hemmer from management of the company.

168.	Some of the paragraphs related to allege breaches of duty have been struck out earlier. For instance paragraph 114 as refer to. Others are pleaded in preparation for trial, in particular breaches related to decision made to further the company's claim against the Defendant paragraph 147 and excluding Mr Hemmer from management of the company.

169.	Decision by the NPF directors on the last two allegations are significant issues which had been pleaded in their specific paragraphs. I noted reference is made to previous paragraphs. I find paragraphs 142-146 are a repetitive of previous paragraphs and are irrelevant. Therefore they have to be struck out. However I refuse to strike out paragraphs 147-148.

Conclusion

170.	In conclusion the law that relates to pleading is clear. It fashioned the Rules as a guiding principles of pleading and to maintain the paramount objectives of pleading. It can be noted from this ruling that a number of paragraphs have been struck out for being so bad and irrelevant. Other paragraphs can be cured by amendments. The rest still remain.

171.	I also noted that a good amount of paragraphs plead evidence. However I treat this case differently from other cases because of its commercial nature and its complexity.

172.	In other paragraphs I refuse to strike out, because to do so will not connect the history well. This is in relation to application for striking out of one or two paragraphs of a section. I consider prudent not to strike out to maintain the link, otherwise unreasonable.

173.	In all that I decide, both applications have partially succeeded. Therefore in exercising the discretionary power vested on the court, I therefore make no orders as to costs. Parties to meet their own costs.

Orders

1.	Both applications partly succeeded.
 
2.	No orders as to costs.

THE COURT