IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. HBC0582 OF 1993

Between:

LLOYD PHILLIPS
Plaintiff

- and -

JULIE ROSE WASHINGTON
Defendant

Mr. P. Knight for the Plaintiff
Mr. S. Parshotam for the Defendant

RULING

On the 27th of October 1993 the plaintiff issued an originating summons seeking the following relief (as amended):

"1.	An order for transfer of the Defendant's half share in the property jointly owned by the Plaintiff and Defendant and situated at Wakaya Island, Fiji and more particularly described as Lot 2 D.P. 4482 C.T. 22992 Wakaya to the Plaintiff;

2.	An order that the transfer of the said half share of the Defendant to the Plaintiff be executed by the Registrar of Titles of Fiji."

Although the parties have filed affidavits in the proceedings learned counsel for the defendant raised a preliminary objection as to the appropriateness of the procedure adopted by the plaintiff.

In this regard reference was made to the provisions of Order 5 of the High Court Rules. Save however for the mandatory provisions of Order 5 rules 2 and 3 which are inapplicable in these proceedings, a plaintiff has an option or choice as to whether or not to begin proceedings by writ or originating summons.

Order 5 rule 4(2) provides some guide however as to what proceedings would be appropriate to be brought by way of originating summons, namely, (so far as relevant):

"Proceedings - 

(a)	in which the sole or principal question at issue is, or is likely to be, one of construction of an Act ... or of any deed, ... contract or other document, or some other question of law or 

(b)	in which there is unlikely to be any substantial dispute of fact."

In this regard learned counsel for the plaintiff says that the sole or principal question for the Court is the construction or interpretation of a matrimonial property settlement deed or agreement (hereafter 'the agreement') entered into by the parties after their marriage was dissolved in May 1986.

There has been a suggestion that the agreement between the parties was an "informal" arrangement. In this regard I need only refer to the headnote in Merritt v. Merritt [1970] 2 ALL E.R. 760 in which the Court of Appeal:

"Held: The written agreement ... was intended to create legal relations between the parties because the presumption of fact against such an intention where arrangements were made by a husband and wife living in amity did not apply to arrangements made when they were not living in amity but were separated, or about to separate when it might safely be presumed they intended to create legal relations;"

a fortiori in my view where the marriage has been dissolved.

Learned counsel for the defendant submits however that the Court according to the plaintiff's originating summons, is not asked to declare the meaning of any clause or interpret the agreement as such, rather, the plaintiff asks for positive orders of the Court which, in effect, amounts to a claim for 'specific performance' of the agreement which ought to be brought by way of Writ of Summons. I cannot agree. 

In Spry on "Equitable Remedies" (3rd Edtn) the learned author makes the following observation in respect of actions seeking specific performance at p.53: 

"Secondly, it is not regarded as necessary that Courts of equity should progress by stages and so require separate proceedings for the establishment of legal contractual rights and then, subsequently, for the enforcement of those rights by an order for specific performance. It is sufficient simply to apply for an order of specific performance and to establish on that application the matters through which the defendant should be prevented from relying on a ground by which the legal enforceability of the contract might otherwise be impugned. This is so a fortiori when it is a Court not merely of equitable jurisdiction, but of combined legal and equitable jurisdiction, to which application is being made ..."

Counsel for the defendant also submits that there is substantial dispute as to the meaning of the agreement and the rights of the parties under it. In particular counsel submits that the agreement is 'deficient' in so far as it sets no time limit within which the Wakaya property is or ought to be sold so as to entitle the defendant to the payment of 8,000 as agreed between the parties.

Learned counsel for the plaintiff however submits that the obligation of the defendant under the agreement to transfer her share of the Wakaya Island property to the plaintiff is not and cannot be disputed as the relevant clause is clear.

As for the plaintiff's obligation to pay 8,000 to the defendant, counsel submits that the relevant clause is quite unrelated to the defendant's obligation to transfer her share in the Wakaya property and in any event the clause imposing the 8,000 liability on the plaintiff is clear in its terms, both as to the source of and the time when the plaintiff's liability to pay the 8,000 accrues, namely, "... from any proceeds of sale of Wakaya".

In counsel's submission the defendant is seeking to introduce parole evidence to explain the otherwise clear terms of the written agreement between the parties which was impermissible. Very simply the plaintiff had performed his obligations under the agreement and now required the defendant to perform hers and "not hold him to ransom".

Furthermore counsel submits that there is no real dispute as to the facts or the meaning of the written agreement rather the defendant appears to be claiming that the plaintiff had given her to understand that the payment of the 8,000 or the sale of the Wakaya property would occur soon after the agreement had been executed which claim the plaintiff vehemently denies.
 
I am satisfied that the principal question at issue in these proceedings is likely to be one of construction of the agreement between the parties and therefore the present form of action adopted by the plaintiff is appropriate in the circumstances. The preliminary objection is accordingly over-ruled as being without merit.

(D.V. Fatiaki)
JUDGE

At Suva,
31st March, 1994.
HBC0582D.93S