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AB Annand (Christchurch) Ltd v Australia and New Zealand Banking Group Ltd [2004] FJHC 292; HBC0223d.1992s (12 July 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0223 OF 1992

Between:

A.B. ANNAND (CHRISTCHURCH) LTD
Plaintiff

and

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
Defendant

Mr. J. Sloan for the Plaintiff
Mr. C. Ngamoki-Cameron for the Defendant

DECISION

By summons dated 19 March 2004 the plaintiff seeks orders that (a) leave be granted to amend the Statement of Claim as proposed and (b) that the defendant’s application for further and better particulars be stayed pending the plaintiff’s application for leave.

The summons is supported by affidavit of Mr. Feizal Haniff, a solicitor employed by Munro Leys. The application is opposed and an affidavit in response has been filed by Virendra Singh, an executive of the defendant Bank.

I have before me for my consideration the written and oral submissions of both the counsel.

This case has for some reasons moved at a snails pace and it is time that it gains speed and moves faster.

The background to this case is partly as follows as stated by Mr. Haniff:

‘The case has had a long history and the Amended Statement of Claim is drafted in order to assist the quick resolution of this matter. Munro Leys took conduct of this file on 13 October 2003. The file had been in the conduct of Mehboob Raza and Associates for over ten years. On 13 October 2003, the Defendant had 3 applications before the Honourable Court. Two of these applications have been responded to by Affidavit. The third application for further and better particulars relates to the Statement of Claim for which leave is hereby sought to amend’.

It is the plaintiff’s submission that the proposed amendment will not prejudice the defendant and that the latter’s application for further and better particulars should be satisfied by the amendment.

In opposing the application the learned counsel for the defendant states that if leave is granted then ‘the defendant’s applications for further and better particulars will become obsolete and costs of that application will have been thrown away’; and that ‘if allowed in its present form a fresh request for their further and better particulars will need to be prepared and served at additional expense to the defendant’.

Counsel for the plaintiff opposes the application for further security for costs of $60,000. He says that a ‘figure of this size would act as a bar to justice in Fiji. It may deny a Plaintiff his day in Court or even discourage a Plaintiff from seeking redress from this Honourable Court’.

I have considered the submissions of counsel for the defendant in its application for further security for costs and his arguments in opposition for leave to file further amended Statement of Claim.

Determination of the issues

(1) Further security for costs

On the issue whether further security for costs should be granted in favour of the defendant the answer is ‘yes’ bearing in mind the facts and circumstances of this case.

The order for security for costs in the sum of $5000.00 was made ten years ago. The plaintiff has been dilly-dallying and sleeping on the file and not taking adequate steps to move the case on in accordance with the High Court Rules. Costs have gone up in the last decade since the order was made.

Counsel for the defendant is to be commended for his very helpful submission on the subject of ‘security for costs’ citing authorities I have carefully considered counsels’ arguments on this aspect in the light of the facts and circumstances of this case.

I hold that there is nothing in law preventing the defendant from making this application. After due consideration I find that it is only right and fair that a further sum of $20,000.00 be ordered in favour of the defendant as security for costs.

(2) Whether to grant application to Amend Statement of Claim

Given the background history of this case, which is a source of great concern, I am seriously considering whether to grant the application to amend the Statement of Claim at this late stage and after so long.

The learned counsel for the plaintiff does ‘accept that an amended statement of claim at this stage in the proceedings does appear to be a backward step’.

The defendant has applied for Further and Better Particulars and on this counsel for the plaintiff says that ‘it is intended to respond in the best way possible’ by applying for amendment to the Statement of Claim and it hopes that the ‘differences between the plaintiff and the defendant relating to the amended statement of claim can now be resolved and the plaintiff understands that it may be ordered to pay reasonable costs to the defendant if its amendment is granted’.

On this aspect I have given due consideration to the arguments put forward by both counsel and to their written submission which were very helpful.

In the circumstances I consider that the application to amend should be granted in the interests of justice and so that all the issues for Court’s determination are placed properly and in a coherent form.

Conclusion

In conclusion, having considered the affidavit evidence and the written and oral submissions of both counsel, I grant the plaintiff its application to amend the Statement of Claim.

By granting this application it is hoped that it will solve the problem of ‘further and better particulars’, if it does not then the defendant’s application is still before this Court, but in the meantime it is stayed.

Before I conclude I would like to repeat what I told counsel in one case in 1996 that they should ‘get on with the case instead of bickering over technicalities. The Rules are there to be obeyed, they are servants and not masters, but parties have not been following the Rules, nothing is done on time’. It is my experience in the last eleven years as a Judge that there are a number of cases which have been pending for over a decade. It is the responsibility of counsel involved in these cases to pull them out from their shelves and take whatever the next step is to dispose of them otherwise I would suggest to the Chief Registrar to dig them out from the Registry and place them before the Court to strike them out for want of prosecution. It is very annoying when counsel tell me that it is a very old case when the fault is entirely their own for dragging them on for 10 years and then expecting a quick decision from the Court.

Order

It is ordered that the plaintiff file and serve its Amended Statement of Claim within 7 days from the date of this decision. It is further ordered that plaintiff give further security for costs in the sum of $20,000.00 within 21 days AND it is further ordered that the plaintiff pay costs to the defendant’s solicitors in the sum of $500.00 (five hundred dollars) within 14 days AND it is directed that counsel for the parties appear before me on 20th July 2004 at 9.45 am for directions as to the future course of action.

D. Pathik
Judge

At Suva
12 July 2004