IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0073 OF 2005

BETWEEN:

JERALD EDWARD SCOFIELD
PLAINTIFF

AND:

REX BASIL HOLLOWS
DEFENDANT

Mr W. Clarke for the Plaintiff
Ms M. Muir for the Defendant

Date of Hearing:	1 July 2005
Date of Ruling:	8 July 2005

RULING OF FINNIGAN J

The Defendant Rex Basil Hollows has filed an application [31 March 2005] for an order striking out this action with costs on an indemnity basis. Both sides have filed affidavits and written submissions and Counsel for both parties made further submissions at the hearing on 1 July 2005. The applicant [“Hollows”] is Defendant in these proceedings but Plaintiff in parallel proceedings HBC0191.2004L. By affidavit he advises that in those other proceedings he seeks six separate remedies i.e. a declaration, an order directing the parties to perform a contract for Sale and Purchase, an injunction, an order for specific performance, an order giving himself time for specific performance and damages. Each party as Plaintiff seeks remedies arising out of an agreement they made for sale and purchase of land.

For reasons not known to me, the Respondent [“Scofield”] who is Plaintiff in the present action and Defendant in the other proceedings has filed no Statement of Defence in those proceedings, according to the Hollows affidavit. I have no access to those proceedings, the file is in the Court of Appeal. This is because Hollows has appealed against an interlocutory ruling [as I am informed] of my Brother Connors refusing an order for specific performance of the agreement which I have mentioned. In the meantime Hollows has filed another interlocutory application in those proceedings seeking judgment by default under the High Court Rules Order 19 Rule 7. That summons I am told was returnable on the same day as this present one [1 July 2005] but it could not be found, I presume it is on the file which is in Suva.

Rather than counter-claim in Hollows’ action, Scofield has filed the present one. Hollows wants it struck out as frivolous, vexatious and an abuse of the Court’s process because he claims they are separate proceedings litigating the same issues as in his proceedings. He relies on Yat Tung Investment Co Ltd –v- Dao Heng Bank Ltd & Another. [1975] A.C. 581.

The principle in that case cannot apply here. In that case a Plaintiff brought an action and after trial judgment was entered against him on both his claim and the Defendant’s counter claim. After judgment he instituted another action on new grounds. The second action was dismissed as an abuse of process. In the present case Scofield has instituted proceedings parallel with those of Hollows, arising out of the same course of dealings but seeking different remedies. The two actions might well be consolidated. That however is temporarily out of the question while Hollows pursues the appeal in his action. Scofield as Plaintiff in the present action should not be held out of his right to a trial. 

I refuse Hollows’ application to strike out this action. It has no merit. As Counsel for Scofield points out, there is no obligation on his client under the Rules to bring his claim by counter-claim in Hollows’ action. He is free to commence a separate action. In this case it has distinct advantages for him because as Plaintiff he can control his claim towards trial, while Hollows [as I am informed] seeks redress on an interlocutory ruling in the Court of Appeal. Since Counsel has raised costs as costs on an indemnity basis and because this is a waste of the Court’s time it is proper that I award costs on an indemnity basis. These follow the event and are payable by Hollows. If not agreed they will be settled by the Registrar.

The matter will be listed in the Friday callover on Friday 15 July 2005. It appears Hollows now needs leave to file a statement of defence. This will be readily granted without formal application if that is sought because this action needs to proceed towards a hearing and judgment.

D.D. Finnigan
JUDGE

At Lautoka
8 July 2005