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Kupsami v Bala [2009] FJHC 259; HBC332.2004L (25 November 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 332 of 2004L

BETWEEN:

KUPSAMI (f/n Janaiya) of Malaqere, Sigatoka, Farmer
Plaintiff

AND:

SASHI BALA (f/n Nand Ranjan) and ROHIT KUMAR (f/n Pushkar Charan) both of Malaqere, Sigatoka, Farmers
Defendants

INTERLOCUTORY JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr. H. A. Shah for the Plaintiff
Mr. R. Krishna for the Defendants

Solicitors: S. S. Law (Sigatoka) for the Plaintiff
William Scott & Co. (Suva) for the Defendants

Date of Hearing: 13 October 2009
Date of Judgment: 25 November 2009

INTRODUCTION

1. This is the Plaintiffs application for reinstatement of his action after having been struck out on 9 September 2008.

THE CLAIM

2. The Plaintiff claims in his Statement of Claim filed on 28 October 2004 that he and the Defendants were joint owners of freehold land comprising about 11 acres of freehold land in Sigatoka from January 1995. The Plaintiff held 1/5th and the Defendants held 4/5th. For 45 years prior to January 1995, the Plaintiff occupied the whole of the land. With the concurrence of the Defendants, the Plaintiff subdivided his 1/5th part of the land into 9 lots which the Director of Town and Country Planning has approved. However, the Defendants have refused to sign the approved subdivision plans and the Plaintiff brought this action for orders to compel the Defendants and others to do certain things to give effect to his subdivision.

3. The Defendants in their Defence filed on 25 November 2004 denies that there was any agreement between for the proposed subdivision and they further say that the proposed subdivision would in fact adversely affect the value of the land and they complain that the subdivision as proposed does not allow them direct access from the highway. The Defendants therefore counter claim that any subdivision should be on the basis that they have direct access to their portion of the land from the highway.

CASE HISTORY

4. The Summons for Directions was filed on 20 January 2005 and the Order made on 2 February 2005. The Defendants filed their list of documents on 6 April 2005. The Plaintiff filed his list of documents on 20 April 2006.

5. On 28 March 2006, the Plaintiff filed a Summons for orders that the land be sold by public auction and the parties paid their respective shares. On 28 April 2006, this Court ordered, by consent, that the land be valued and put to sale by public tender. Many mentions followed before the Judge, the Master and the Deputy Registrar whilst the parties attempted to sell and or settle without success. On 26 May 2008 the Plaintiff changed his solicitors. On 7 July 2008, on the Plaintiffs solicitors failing to appear, the Master ordered the Plaintiff to pay the Defendants wasted costs of appearance and wasted Court costs by 31 July 2008. Neither the solicitors nor the Plaintiff appeared on two further mentions of the matter and the costs orders were not complied with so on 9 September 2008 the Master struck the action out. On 3 August 2009, the Plaintiffs current solicitors, despite not having filed a notice of change of solicitors, filed a Motion for reinstatement of the action and to set aside the consent order of 28 April 2006. The application was supported by the Plaintiffs affidavit and opposed by an affidavit by the Second Defendant. The application was first called on 14 August 2009 and all the parties, represented by Counsel, were directed to file written submissions and the application set for hearing on 13 October 2009. Counsel for the Defendants filed his submissions on 3 September 2009 but no submissions have been filed for the Plaintiff.

HEARING OF THE APPLICATION

6. When the application was called for hearing on 13 October 2009, the Court was advised by a note written on the appearance slip by a clerk from the Plaintiffs solicitors that the Counsel involved was on leave and sought further time to file his submissions and an adjournment of the hearing. Mr Krishna, Counsel for the Defendants, urged me to hear him and to strike out the application. I did not think that the application should be adjourned any further having regard to the many delays caused by the Plaintiff and heard Mr Krishna. He relied on his written submission supplemented by oral submissions and after hearing him, I dismissed the application. These are my reasons.

CONSIDERATION OF THE APPLICATION

7. There has been considerable delay caused by the Plaintiff and his lawyers. He has also failed to comply with costs orders made by this Court despite being given ample opportunity and time to comply with them. He has not, and, as Mr Krishna submitted, is in contempt of Court and should not be heard until he has complied with those orders. He has clearly shown no intention to comply with them despite this Court having been lenient with him in the past.

8. The Plaintiffs application was set down about 2 months before the actual hearing date. His Counsel had ample time to file submissions and advise opposing Counsel if he needed an adjournment. Mr Krishna rightly complained that at the very least, a courtesy phone call from opposing Counsel that an adjournment was being sought, was to be expected. No such call was made.

9. The law on adjournment of proceedings has been stated by the Court of Appeal (Byrne and Scutt JJA) in Goldenwest Enterprises Ltd v Pautogo [2008] FJCA 3; ABU0038.2005 (3 March 2008) as follows:

37. Generally, this is the principle covering courts’ discretion to adjourn or not to adjourn. If refusal to grant an adjournment amounts to a denial of a fair hearing and hence denial of natural justice or procedural fairness, or where a refusal to adjourn would cause definite and irreparable harm to the party seeking it, an adjournment should be granted. If it is not, an appeal court has power – and one might say a duty – to redress the wrong by allowing an appeal against the denial of the adjournment: Gasparetto v. Sault Ste-Marie [1973] 2 OR 847 (Div. Ct); see also Jim Patrick v. United Stone (1960) 21 DLR (2d) 189 (Sask. CA)

38. An objecting party is compensated by costs – unless the adjournment would cause irreparable damage to it. Then a court must weigh up the competing interests and consequences ruling according to the fairness and justice of the particular case.

10. In respect of costs orders, the Plaintiff has not complied with them in the past so the Defendants can take no comfort in that respect for further costs orders. The Plaintiff has been given ample opportunity to put his case before the Court but has chosen not to exercise his right to natural justice. This Court cannot be expected to continue to accommodate him. Further, the history of this matter shows that the Plaintiff can hardly complain of procedural unfairness if he or his lawyers fail to appear in Court.

11. In considering whether to dismiss this application with the result that the whole action is struck out without a hearing on the merits, I am obliged to not only consider the prejudice that the Defendants may suffer as well as the Plaintiffs right to have his claim heard in this Court.

12. The Plaintiff started his action on 28 October 2004. On 28 April 2006, the parties agreed to a compromise. The land was to be sold by auction and the proceeds shared. Many adjournments followed and the Plaintiff failed to appear either by Counsel or in person on several occasions resulting in the Master ordering him on 7 July 2008 to pay the Defendants’ costs and for his solicitor to appear personally on 14 August 2008. Neither order was complied with despite several requests by the Plaintiffs solicitors. The matter was then struck out by Connors J on 9 September 2008.

13. The delay in filing this application and the delay in prosecution of this action has not been adequately explained in the Plaintiffs affidavit in support. He instead blames the Defendants’ failure to contribute equally to the cost of the registered valuer for the delay in complying with the consent order of 28 April 2006. The dilatory and prima facie contemptuous behaviour of the Plaintiff and his lawyers is, in my view, highly prejudicial to the Defendants in terms of unrecovered legal costs and other expenses and the stress of having unresolved court proceedings hanging over their heads.

14. On the other hand, all that the Plaintiff will lose is his ability to subdivide his portion of the land for the moment. He is still in occupation and can pursue his rights further without the assistance of this Court. There is no definite and irreparable harm caused to him by his action being struck out.

15. Further, the Plaintiff should not be surprised that the Court will not assist him if he is not willing to comply with its procedures and orders. His affidavit in support filed on 3 August 2008 made no reference to the order for costs made by the Master a month earlier on 7 July 2008 although I am doubtful that he did not know of the existence of the order when he swore his affidavit.

16. In the circumstances, I think the Plaintiffs application for reinstatement should be dismissed with the end result that his whole action is struck out and the consent order of 28 April 2006 is vacated.

COSTS

17. I think the normal rule applies and costs should be awarded to the Defendants in the sum of $600 to be paid within 21 days.

ORDERS

18. The Orders are as follows:

1. The Plaintiffs motion filed herein on 3 August 2009 for reinstatement of this action is dismissed.

2. The Plaintiff is to pay the Defendants’ costs of $600 within 21 days.

Sosefo Inoke
Judge