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Supreme Court of Samoa |
IN THE SUPREME COURT OF SAMOA
HELD AT APIA
BETWEEN
JACINTA LEE HANG GODINET
Plaintiff
AND
CHAN MOW & CO LTD,
a duly incorporated company, having its registered office at Saleufi, Apia.
First Defendant
AND
DRAKE & CO.
a firm of Barristers & Solicitors, Chandra House, Convent Street, Apia.
Second Defendant
Counsel: O Woodroffe for the plaintiff
J Brunt for the First Defendant
R Drake for the Second Defendant
Hearing: 17 January 2006
Judgment: 18 May 2006
JUDGMENT OF VAAI J
This is an application by the first and second defendants for further and better particulars of the plaintiff’s Amended Statement of Claim which is resisted by the plaintiff firstly on the basis the Amended Statement of Claim has sufficiently set out the factual circumstances giving rise to each cause of action, secondly that the defendants application seeks to discover the plaintiff’s evidence and tantamount to a fishing exercise, and thirdly the facts sought are already within the knowledge of the defendants so that the requests by both defendants is an abuse of process.
From perusal of the file documents and of the submissions filed in these interlocutory proceedings there is not a cloud of doubt that all the parties are familiar with and have common knowledge of the facts surrounding this action as well as the previous actions also pending determination by this court. All three actions concerns a piece of land at Saleufi which was originally purchased by Mr Lee Hang, the father of the plaintiff and Mr Chan Mow, the father of the shareholders of the first defendant. Following the death of the plaintiff’s father who died interstate the first defendant bought the undivided half share of the plaintiff’s father. The documentations for the administration of the estate of the plaintiff’s father and for the purchase of the plaintiff’s father half share by the first defendant were all handled by the second defendant as solicitors for the first defendants. Niko Lee Hang, the brother of the plaintiff was the administrator of the estate who effected the sale of the land to the first defendant. As of now the plaintiff and her family are still living on the said land. In January 1993 the first defendant engaged the second defendant to issue proceedings for the eviction of the plaintiff from the said land and in response the plaintiff filed a statement of defence and a counterclaim virtually repeating what she is alleging in the present action. Further and better particulars were not sought in that action by the first defendant.
In October 1997 the plaintiff commenced action against the first defendant to restrain the first defendant from trespassing and causing nuisance onto the said land. Although an interim injunction was granted ex parte it was rescinded soon after on an application filed by the second defendants for the first defendants.
Both the 1993 and 1997 court actions have been adjourned sine die or taken off the list due to the desire of both parties to settle their differences out of court considering the close cordial relationship between the Lee Hang family and the Chan Mow family. So when the present action was filed in 2005 all the parties had full knowledge of the history of the dispute and of the conflicting views of the plaintiff and the first defendant. Before the filing of the present action in July 2005 a mediatory meeting was summoned in February 2005; it was attended by the plaintiff and her counsel and by representatives of the first defendant and Mr Drake of the second defendant as counsel. What was agreed to at that meeting is in dispute and is the subject of further pleadings in the plaintiff’s Amended Statement of Claim. It is with that background since 1993 that I now turn to consider the applications by the first and second defendants for further and better particulars bearing in mind rule 15 (1) Supreme Court (Civil Procedure) Rules 1980 which require the statement of claim to specify the particulars which the plaintiff seeks to establish including such particulars of time, place, names of persons, dates of instruments and other circumstances as may suffice to ensure that the court and the opposite party are fully and fairly informed of the cause of action. In general the function of particulars is to inform the other party of the nature of the case he has to meet, as distinguished from the mode in which the case will be proved to prevent the other party from being taken by surprise; to enable the other party to know with what evidence he ought to be prepared and to limit and define the issues: Commerce Commission v. Quantas Airways (1992) PRNZ 227
It has been stated in numerous ways that the over riding principle in providing particulars is that the trial should be conducted fairly, openly, without surprises and incidentally to reduce costs. At the same time, under the exigencies of the adversary system of litigation a litigant is entitled within limits to refuse to disclose the nature of his case until the trial so that if the particulars sought tantamounts to eliciting evidence from the opposing side then application should be refused. In essence the particulars will be ordered if I am satisfied that without them the applicant will not know what his opponent will try to prove against him at the trial. I shall deal with each paragraph of the Amended Statement of claim of which further particulars are requested by the first and second defendants.
Paragraph 14 (Page 4) alleges:
By letters dated 11th February 2005 from the plaintiff lawyers to the first defendants directors, she sets out the plaintiffs understanding of the Agreement reached between the parties as follows:
'We confirm that the Lee Hang children understood that the Agreement reached between the Lee Hang children and Directors of Chan Mow and children of Chan Mow, is that the joint venture of Lee Hang and Chan Mow starts on a 'clean slate' wherein the land reverts. To the beginning where the late Chan Mow and the late Lee Hang were joint owners of the land unencumbered.
Please confirm that the above is correct and the necessary steps will be taken to ensure that Chan Mow and Lee Hang families start their new venture without any misunderstandings.
We look forward to hearing from you. Please clarify in your response whether your firm also acts for the individual children of Chan Mow'.
Both the first and second defendants seek clarification as to the basis for the plaintiff’s understanding that the legal title to the land would revert to joint ownership. The first defendant also seeks representations, if any, made by the First Defendant, which gave the Plaintiff the understanding that the land would revert to joint ownership.
Paragraph 14 and the preceding paragraphs 9 to 13 refer to the meeting in February 2005 and the follow up letter from the plaintiff’s solicitor. Although a joint venture development of the land appear to have been agreed to in principle at the meeting what was actually said and decided is disputed between the parties. Mr Drake of the second defendant in reply to the letter by the plaintiff’s solicitor is alleged to have said:
'The plaintiff’s understanding in regards the joint venture 'was far removed from the reality of the agreement'.
Plainly the plaintiff is saying that the agreement to a joint venture between the Lee Hang family and the Chan Mow family and what was said at the meeting is the basis for her understanding which is obviously disputed by the defendants. The allegation is informative and further particulars are not necessary.
Paragraph 17 (page 5) alleges:
The plaintiff and her siblings that she represents agreed to the proposal for a joint venture on the basis that the parties to the agreement were to start the joint venture with a 'clean slate' with no encumbrances on the title to the Saleufi land. Her understanding as set out in her letter of 11 February to the first defendant directors was met with a response from Mr Drake saying that: [Your understanding] 'is far removed from the reality of the agreement'.
The first defendant seeks to clarify:
(a) whether the plaintiff is alleging that the first made representation that the Saleufi land was free from encumbrances.
(b) If so who made the representation.
(c) If not what is the basis of the plaintiff’s misunderstanding.
I have already alluded to this issue and Mr Drake’s reply to the plaintiff’s understanding of the joint venture negotiations as far removed from the reality of the agreement. No other particulars are required.
Paragraph 18 alleges:
The plaintiff has subsequently discovered that the Saleufi land is encumbered by the directors of the first defendant. This fact was not disclosed to the plaintiff’s at the time the parties entered into settlement negotiations.
The first defendant seeks to clarify whether the plaintiff is alleging that the plaintiff discovered after the meeting that the land was encumbered.
The short simple answer to the request is that the allegation is in simple plain language and does not need clarification by further particulars.
Paragraph 19 alleges:
The plaintiff and the plaintiff’s siblings she represents has legal and equitable rights to the land at Saleufi. The plaintiff has been in continuous occupation of her late father’s house built on Saleufi land since 1971.
The first and second defendants seek further particulars as to the nature of the equitable and legal interest, when they arose and the factual basis on which those interests are claimed.
In view of the history of the dispute between the plaintiff and the first defendant the request for further particulars is not warranted. In the 1993 action the present plaintiff in her counterclaim alleged inter alia that the conveyance of her father’s half share to the present first defendant was null void for the reasons specified in the statement of defence and counterclaim. Those allegations are again repeated in various parts of the Amended Statement of Claim in addition to allegations arising from the discussions in the February 2005 meeting.
Paragraph 21 (page 6) alleges:
'As there is no longer an agreement between the parties to settle matters between them out of court, the plaintiff seeks to have all her claims that are adjourned sine die in the Supreme Court heard. She further claims that the first and second defendant acted fraudulently. As a result of the fraudulent acts of the first and second defendants the plaintiff has lost her legal rights to her share of her fathers half share of the land at Saleufi.
The plaintiff then listed the fraudulent acts of the first defendant.
The first defendant seeks further particulars of some of the acts of the first defendant which the plaintiff has listed as fraudulent.
In my view the request is not warranted as the request seems to be seeking evidence which in any event is already within the knowledge of the first defendant.
Prayer for relief (first cause of action)
One of the reliefs sought by the plaintiff is:
(e) Damages for $200,000 for financial loss, emotional harm and inconvenience.
Both the first and second defendants in identical language seek particulars of the financial loss, emotional harm and the inconvenience suffered by the plaintiff.
Emotional harm and the inconvenience suffered, are, if proven can be compensated for by the award of general damages whereas financial loss is a special damage which should be specifically and separately pleaded. Special and general damages cannot be lumped together under one head. The plaintiff is accordingly ordered to quantify and particularise the financial loss suffered.
Paragraph 14 (Page 9) alleges:
The second defendants gave undertakings to the Supreme Court that has never been honoured subsequently. No affidavits as to their consents were obtained and filed in Court from John Lee Hang (since deceased), Amataga Lee Hang or Gogo Lee Hang, children of the deceased who resided overseas at the time that the second defendants filed documents to appoint Niko Lee Hang Administrator of the late Lee Hang’s estate.
The second defendants seek particulars of:
(a) the contents of the undertakings.
(b) were the undertakings oral or in writing.
(c) When the undertakings were given.
The further particulars sought are well within the knowledge of the second defendants from the history of the dispute and from the pleadings. Sub-paragraph 4(b) of paragraph 21 (page 6) which listed the particulars of fraudulent conduct of the first defendant states:
There are several other allegations in the Amended Statement of claim alleging that the administrator of Lee Hang estate employed the second defendants (solicitors of the first defendant) whose services were paid for by the first defendant to effect the sale of the land to the first defendant.
An order for further particulars is refused.
Paragraph 15 (page 9) alleges:
The second defendants prepared and filed in court a sworn affidavit of Niko Lee Hang dated 18th October 1983 in which paragraph 5 reads as follows:
'.............. my solicitors are in the process of obtaining written directions and authorities from all members of the deceased’s family before dealing with the sole asset.
The second defendants did not honour this undertaking before dealing with the sole asset.
The plaintiff is simply saying that the wording of the affidavit and the undertaking made there was not made by Niko Lee Hang but by the second defendant who prepared and engrossed the affidavit for the purpose of granting the letters of administration to Niko Lee Hang.
Whether it amounts to an undertaking by the second defendants will be the subject of legal submissions; not an issue for an application by the second defendant for further particulars which is denied.
Paragraph 16 Page 9 alleges:
The second defendant was at all times agents and lawyers of the first defendant. The second defendant ordered the first defendant in fraudulently using Niko Lee Hang as a means of transferring legal title of the Saleufi land to the first defendant.
The second defendant seeks from the plaintiff whether the allegation means the defendant took any action which aided the first defendant in fraudulently transferring legal title to the Saleufi land to the first defendant.
Other than acting as solicitors for the first defendant and for Niko Lee Hang whose legal fees are alleged to be paid for by the first defendant and whose affidavits in support of the application for the grant of letters of administration of the estate of his late father was prepared by the second defendant the plaintiff makes no other allegation other than those in the preceding paragraphs. This is confirmed by the plaintiffs reply to the request and no further particulars are necessary.
Paragraph 21 (page 10) alleges:
The said affidavits fraudulently misrepresented to the court that the deponents of the affidavits gave informed consent to appoint Niko Lee Hang as administrator of the estate of the late Lee Hang.
The allegation when read together with paragraphs 19, 20, and 22 is informative and does not require further particulars as requested by the second defendant.
Prayer for relief
One of the reliefs sought by the plaintiff is:
(4) Damages in the sum of $200,000 for financial loss, emotional harm and distress and embarrassment.
Again the second defendant seek particulars of the financial loss, emotional harm and inconvenience suffered. As I have earlier ruled the financial loss is a special damage which should be separately pleaded and should not be lumped together with the general damages for emotional harm and inconvenience. The plaintiff is ordered to quantify and particulars the financial loss suffered.
Paragraph 27 (7) page 12 alleges:
27: The first and second defendants conspired to defraud the plaintiff.
(1) ...................
(7) By the first and second defendants setting the sale price of Lee Hang’s half share in the Saleufi land without authority and informed consent of Mrs Lee Hang and the plaintiff.
- (a) Acted for conveyance by Niko Lee Hang as administrator of Lee Hang’s estate the individual one half (½ ) share of Lee Hang in the Saleufi land.
The first defendant seeks from the plaintiff whether she alleges that no independent market valuation report was prepared for the land.
The request is baseless and totally irrelevant to what is alleged by the plaintiff and the request is refused.
Prayer for relief for the second cause of action (page 13)
Again one of the reliefs sought is:
(5) Damages from each of the first and second defendants of $200,000 for financial loss, inconvenience and emotional.
Again I make the same order that plaintiff is to quantify and particularise the financial loss alleged.
The plaintiff also seeks an order.
(4) that the first defendant is holding the land at Saleufi as a constructive trustee for the plaintiff and her family.
The second defendants request for further particulars as to when the constructive trust arose and on what basis it arose cannot be sustained because the prayer for relief follows the allegations upon which that prayer is based. Request is denied.
Paragraph 30 (page 13) alleges:
That the first and second defendants conspired to defraud the plaintiff for the personal benefit of the first defendant or both defendants.
Both the first and second defendants seek particulars of the personal benefits received.
In response the plaintiff says that at least the second defendants received legal fees for acting for the first defendant as well as acting for Niko Lee Hang.
As for the first defendant the benefit alleged to have been gained are quite obvious from the pleadings. Request for further particulars is therefore denied.
Paragraph 35 alleges:
That as a result of the fraudulent behaviour of the first and second defendant, the plaintiff has lost legal title to her share of her father’s undivided share in the Saleufi land to the first defendant and has suffered financial loss, humiliation and emotional distress.
Again I make the order as above that in the plaintiff’s prayer for relief the plaintiff is to quantify and particularise the claim for financial loss and to separately quantify what is claimed as general damage for humiliation and emotional distress.
Paragraph 37 (page 15) alleges:
That the first and second defendant acted with the purpose of denying the plaintiff and her family of the half share of the late Lee Hang’s in the Saleufi land.
(a) That the conveyance by Niko Lee Hang of the undivided one half share in the land under Deed of conveyance .... was made possible by the defendants conspiracy.
The first and second defendants seek particulars of the basis on which the plaintiff alleges that the second defendant acted with the purpose of denying the plaintiff and her family of the late Lee Hang’s half share in the land.
Again I make the ruling that no further particulars are necessary considering the history of the dispute between the plaintiff and the first defendants as well as the pleadings in the preceding paragraphs of the Amended Statement of Claim.
Paragraph 39
The request by first defendant for particulars of financial loss, emotional distress and humiliation is also denied as the plaintiff in that particular part of the Amended Statement of Claim is not seeking compensation for any financial loss, emotional distress and humiliation.
Orders
(1) The plaintiff is ordered to file and serve on the defendants the further and better particulars ordered by the 5th June 2006.
(2) Both defendants are to file and serve written Statements of Defences to the Amended Statement of Claim by the 19th June 2006.
(3) Costs are reserved.
VAAI J
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URL: http://www.paclii.org/ws/cases/WSSC/2006/32.html