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Goldstein v Narayan [2003] FJHC 245; HBC0413d.2001s (9 July 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0413 OF 2001

Between:

RONNA LYNN GOLDSTEIN
Plaintiff

and

SAT NARAYAN
f/n Nagan
Defendant

Mr. R. Naidu for the Plaintiff
Mr. V.P. Ram for the Defendant

DECISION

By motion dated 2 February 2002 the defendant seeks the following orders:

(a) THAT the order made on the 17^th day of October 2001 extending the Caveat No. 494994 be rescinded.

(b) THAT the Plaintiff’s claim be dismissed

• (i) for want of a cause of action
  
• (ii) as being an abuse of the process of the Court
  

(c) THAT the Plaintiff pay the costs of this application.

Background facts

A writ of summons dated 12 October 2001 was issued against the defendant (‘SN’) claiming, inter alia, specific performance of the Sale and Purchase Agreement dated 7 September 1999. It is alleged in the Statement of Claim that SN had reneged on the said agreement and has refused to execute the necessary documents and/or to perform his obligations under the said agreement.

There was acknowledgment of the writ and a Statement of Defence and Counterclaim was filed on 23 November 2001. However on 17 October 2001 on an application ex parte an order extending the time for removal of Caveat No. 494994 was extended until further order of this Court. Reply to Defence and Defence to Counterclaim was filed on 18 December 2001.

On 2 February 2002 the present application was made by the defendant supported by affidavit. The plaintiff filed affidavit in response.

Consideration of application

As ordered, both counsel made written submission and I have given these due consideration.

This application is made under Or 32 r6 and Or 18 r18(1)(a) and (d) of The High Court Rules 1988.

The learned counsel for the defendant has made lengthy submissions for Court’s consideration on the issue before it.

On the facts and circumstances of this case it cannot be said that it is in the least plain obvious or clear beyond doubt that the action cannot succeed, or an abuse of the process of the Court. The plaintiff definitely has the right to bring the action. I agree entirely with the submissions made by plaintiff’s counsel on the issues. Such lengthy submissions by Mr. Ram were unnecessary for the determination of the issues before me at this stage and they would have been more appropriate at the trial of the action.

On the principles involved in striking out an action for the reasons stated, I think I ought to refer to some of the authorities on the subject and which I have considered.

In the context of this case I find that following statement of Megarry V.C. in Gleeson v J. Wippell & Co. [1917] 1 W.L.R. 510 at 518 apt:

“First, there is the well-settled requirement that the jurisdiction to strike out an endorsement or pleading, whether under the rules or under the inherent jurisdiction, should be exercised with great caution, and only in plain and obvious cases that are clear beyond doubt. Second, Zeiss No. 3 [1970] Ch. 506 established that, as had previously been assumed, the jurisdiction under the rules is discretionary; even if the matter is or may be res judicata, it may be better not to strike out the pleadings but to leave the matter to be resolved at the trial”.

In considering this application I have borne in mind the following passage from Halsbury’s Laws of England 4^th Ed Vol. 37 para. 434 on ‘abuse of process’ which I consider pertinent:

“An abuse of the process of the court arises where its process is used, not in good faith and for proper purposes, but as a means of vexation or oppression or for ulterior purposes, or, more simply, where the process is misused. In such a case, even if the pleading or indorsement does not offend any of the other specified grounds for striking out, the facts may show that it constitutes an abuse of the process of the court, and on this ground the court may be justified in striking out the whole pleading or indorsement or any offending part of it. Even where a party strictly complies with the literal terms of the rules of court, yet if he acts with an ulterior motive to the prejudice of the opposite party, he may be guilty of abuse of process, and where subsequent events render what was originally a maintainable action one which becomes inevitably doomed to failure, the action may be dismissed as an abuse of the process of the court.”

The plaintiff submits, inter alia, that this case cannot be struck out ‘willy nilly’ as it is a claim for ‘specific performance’ of the contract for the sale and purchase of land. The fact that the contract is prepared by a firm of Solicitors is not denied by the defendant. There was provision in the contract for a survery and subdivision. The issues, counsel submits, can only be decided by the trial of the action. It was to protect his interest that the plaintiff lodged a caveat on the property.

I hold that the Statement of Claim discloses a reasonable cause of action raising issues of fact; it is a claim for specific performance.

The plaintiff’s counsel has referred the Court to a number of relevant authorities on principles involved in striking out applications. These are set out in the notes to Order 18, r.19 of the Supreme Court Practice (UK), 1979 Vol. 1 Order 18/19/11, where it is stated:

“ .......... A reasonable cause of action means a cause with some chance of success when only the allegations in the pleadings are considered (per Lord Pearson in Drummond Jackson v British Medical Association [1970] 1 WLR, 688; [1970] 1 All E.R 1094, C.A.). So long as the statement of claim or the particulars (Davey v Bentinck [1892] UKLawRpKQB 216; [1893] 1 Q.B. 185) disclose some cause of action, or raise some question fit to be decided by a Judge or a jury, the mere fact that the case is weak, and not likely to succeed is no ground for striking it out (Moore v Lawson (1915) 31 T.L.R. 418, C.A.; Wenlock v Moloney [1965] 1 W.L.R. 1238 [1965] 2 All E.R 871, C.A.)...”

Similarly, Lindley M.R. in Hubbuck & Sons, Ltd v Wilkinson, Heywood & Clark Limited [1898] UKLawRpKQB 176; [1899] 1 Q.B. 86 at page 91 said:

“... summary procedure is only appropriate to cases which are plain and obvious, so that any master or judge can say at once that the statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to what he asks. The use of the expression “reasonable cause of action” in rule 4 shews that the summary procedure there introduced is only intended to be had recourse to in plain and obvious cases”.

In Attorney General v Shiu Prasad Halka (1972) 18 FLR 210 Marsack J.A. said of the predecessor to order 18, r.18 of High Court Rules at page 215:

“... I think it is definitely established that the jurisdiction to strike out proceedings under Order 18 rule 19 should be very sparingly exercised where legal questions of importance and difficulty are raised”.

The Fiji Court of Appeal in its decision of National MBf Finance (Fiji) Limited v Nemani Buli, (Civil Appeal No. ABU0057 of 1998) very clearly enunciated and determined the principles for striking out. At page 2 of the judgment their Lordships said:-

“The law with regard to striking out pleadings is not in dispute. Apart from truly exceptional cases the approach to such applications is to assume that the factual basis on which the allegations contained in the pleadings are raised will be proved. If a legal issue can be raised on the facts as pleaded then the courts will not strike out a pleading and will certainly not to do so on a contention that the facts cannot be proved unless the situation is so strong that judicial notice can be taken of the falsity of a factual contention...”

Conclusion

To conclude, on the facts and circumstances of this case for the above reasons, on the authorities and as a matter of discretion, I do not consider that it would be right to strike out the writ or pleadings under Or.18 r.18(1)(a) and (d) of the High Court Rules 1988 under which the application is made. It is important that the caveat on the property remain to protect the interest of the plaintiff.

The defendant’s application is therefore dismissed with costs in the sum of $250.00 to be paid within 14 days of this decision. The matter is to take its normal course.

D. Pathik
Judge

At Suva
9 July 2003