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Nand v Bhan [1999] FJHC 169; HBC0529D.1995S (26 November 1999)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO: HBC 529 OF 1995

BETWEEN:

SATYA NAND
Plaintiff

AND:

KUAR VIJAY BHAN
1st Defendant

RAM CHAND & COMPANY
2nd Defendant

Counsel: Ms S. Sen for Plaintiff
Mr H. Nagin for Defendants

Hearing: 17th November 1999

Decision: 26th November 1999

DECISION

This is an application that the Second Defendant be struck out as a party to the proceedings on the ground that the Statement of Claim does not disclose a reasonable cause of action against the Second Defendant.

The application is opposed by the Plaintiff. The writ of summons in this case was filed on 3rd November 1995. The Statement of Claim states that Chandar Bhan (the deceased) owes the Plaintiff $F80,000.00 which was a loan before the deceased died in October 1994. The First Defendant is executor of the deceased’s estate. The Plaintiff lodged a claim against the estate to solicitors acting for the First Defendant. The basis of the claim against the Second Defendant (the solicitors) is that the Second Defendant failed to pay the Plaintiff the $80,000 allegedly owed to him by the estate of the deceased.

Thereafter, the Statement of Claim was amended on 18th December 1997. Paragraphs 20, 21 and 22 read as follows:

“At all material times the Second Defendant acted for the First Defendant in applying for the grant of Probate of the deceased’s estate. The Plaintiff believed that a substantial amount of monies namely F$108,639.06 held in credit in the deceased’s name in various banks was transferred into the Second Defendant’s Trust Account pending distribution.

21. The Plaintiff is entitled to have his claim of F$80,000 against the Estate settled as a matter of priority as a debt against the estate.

22. The Second Defendant so far as not taken any steps to settle this said debt against the Estate and to distribute the Estate’s capital held in his Trust Account, and therefore is in breach of the Trustee Act Cap 65.”

This application is now made, presumably under Order 15 Rule 6(2)(a) of the High Court Rules 1988. That Rule provides:

“Subject to the provisions of this rule, at any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application -

(a) order any person who has been improperly or unnecessarily made a party .... to cease to be a party.”

In support of the application, Mr H. Nagin submitted that whilst there was a cause of action against the First Defendant, no cause of action existed against the Second Defendant. Indeed, he submitted that without proper instructions from the First Defendant who was the Second Defendant’s client, the Second Defendant could not pay out any money from the trust account at all.

Ms S. Sen for the Plaintiff submitted that the Second Defendant had a legal obligation to pay the debts of the estate, and thus was properly joined as a party. There was no dispute that the reason for the late application for striking out was because solicitors for the Defendants had been changed only recently.

It seems clear that the only capacity in which the Second Defendants are being sued is in their capacity as solicitors for the First Defendant. Counsel for the Plaintiff submitted that the Second Defendants had a duty to the Plaintiff to pay out the $80,000.00 on demand.

I cannot agree. The executor and trustee of the deceased’s estate is not the Second Defendant, he is the First Defendant. The Plaintiff is not the Second Defendant’s client. The First Defendant is the Second Defendant’s client. The Plaintiff has a claim against the estate which is disputed by the executor of the estate. The Second Defendant in all the circumstances is not under any duty to pay any money to any claimants without the authority of the First Defendant.

I find therefore that the Statement of Claim discloses no reasonable cause of action against the Second Defendants and I order that they be struck out as a party, and that an amended Statement of Claim be filed by the Plaintiff within 14 days of the date of delivery of this judgment.

As to costs, I note that it was held in Butler -v- Rice [1910] UKLawRpCh 74; 1910, 2 Ch 277 that defendants who do not move promptly to be struck out, may be held liable for the costs of the application. This is especially so if they have taken active part in the litigation. I note that the record shows the personal attendance of the principal of the Second Defendant on several occasions since 1995.

As such the Second Defendants are to bear their own costs in respect of this application.

Nazhat Shameem (Ms)
JUDGE

At Suva
23rd November 1999