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Fiji Development Bank v Singh [2004] FJHC 331; HBC0531D.2000S (12 July 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0531 OF 2000

Between:

FIJI DEVELOPMENT BANK
Plaintiff

and

NAZMA SINGH
f/n Mohammed Hanif
Defendant

Ms. Y. Fatiaki for the Plaintiff
Mr. R. P. Singh for the Defendant

DECISION

By motion dated 26 February 2004 the plaintiff seeks an order that leave be granted to the plaintiff to amend the statement of claim upon the grounds set forth in the affidavit of Mukesh Nand filed in support;

The motion was heard by me on 2 June 2004 when both parties made oral and written submissions.

Background

By writ of summons dated 22 November 2000 the plaintiff claims against the defendant, as stated in the Statement of Claim, the sum of $45,584.68 “pursuant to a loan letter dated 27th April 1989, the plaintiff had lent and advanced the sum of $19,909.00 to the defendant as security for which the plaintiff had obtained, inter alia, a Notification being Book 95 Folio 12422 over NLTB Ref. 4/9/9766 (Naravuka Subdivision – Stage 11, Lot 23). The defendant had agreed to pay interest on the said loan at the rate of 10.25% per annum”.

Default was made in repayments and as at 31 October 2000 the defendant is alleged to have owed the sum of $45,584.68. The plaintiff exercised its rights under the said Notification but was unable to sell the said property.

Demand was made but the defendant failed to pay.

The plaintiff says that this action is being taken against the defendant ‘without prejudice to its rights and powers as mortgagee under the said Notification with the intent that the entry of judgment in this action shall not merge with the said Notification’.

The plaintiff now applies to amend the Statement of Claim on the ground as stated in the affidavit of Mukesh Chand, Assistant Manager Legal of the plaintiff, “that there have been some alterations due to collection of more information and providing further and better particulars to this Honourable Court”. He has annexed to his affidavit the draft of proposed amended Statement of Claim.

Determination of the issue

The defendant opposes the application to amend the Statement of Claim on the ground that “a new cause of action is being introduced by the proposed amendment”. She also says that the action is statute-barred.

The plaintiff on the other hand submits that the claim is well within the 6 year limitation period under section 4 of the Limitation Act, Cap. 35. Ms. Fatiaki for the plaintiff says that there is no new cause of action and only ‘a more detailed amended statement of claim’. She says that there are ‘no new issues’ raised in the amended claim. She says that ‘it is simply the plaintiff’s efforts to recover monies owed by the defendant for failing to perform, under the contract between the parties’.

Consideration of application

Upon a careful consideration of the arguments put forward by both counsel I find that there is no merit in the defendant’s grounds of opposition.

I agree with the reasons for the application to amend as submitted by Ms. Fatiaki. It will be up to the plaintiff to prove its case on the civil standard.

I do not consider that the proposed amendment gives rise to a ‘new cause of action’ or that the claim is ‘statute-barred’.

Under Order 20 r.5 of The High Court Rules, 1988 there is provision for ‘Amendment of writ or pleading with leave’. Order 5(2) and (5) are relevant to the matter before me. They provide respectively as follows:

(2) Where an application to the Court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.

(5) An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.

Order

For the above reasons I do not consider that the plaintiff should be prevented from pursuing its claim in the amended form.

Leave is therefore granted to the plaintiff to amend its Statement of Claim with costs in the cause. The amended Statement of Claim is to be filed within 14 days and the action to take its normal course thereafter.

D. Pathik
Judge

At Suva
12 July 2004