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Kelton Investments Ltd v Lami Investments Ltd [2011] FJHC 812; HBC248.2006 (30 December 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 248 of 2006

BETWEEN:

KELTON INVESTMENTS LIMITED a limited liability company having its registered office at Suva
PLAINTIFF

AND:

LAMI INVESTMENTS LIMITED a limited liability company having its registered office at Suva trading as FOOD FOR LESS SUPERMARKET.
DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSEL: Ms. B. Narayan for the Plaintiff
Mr. H. Nagin for the Defendant

Date of Hearing: 15th October, 2010
Date of Ruling: 30th December, 2011

RULING

1. INTRODUCTION
   

1. The delay in delivering this ruling is regretted. This is partly due to the Plaintiff's delay in submitting additional materials that was to be submitted with the notice to the Defendant, consented by both parties at the oral hearing. This is a summons filed by the Defendant to amend their statement of defence. The trial has not begun and generally such amendments are granted subject to a cost as it was sought close to the trial, but the Defendant is objecting to the amendment vehemently and the objection is not without merits and this is an instance where the court should deviate from the generally accepted rule of allowing the amendment as such an amendment would prejudice the Plaintiff to the extent that is irreparable and award of cost cannot be a remedy and the proposed amendment if allowed, will result in not determining the real question in controversy between the parties proceedings or of correcting any defects or errors in any proceedings." Jenkins L. J. in R. L. Baker Ltd v Medway Building & Supplies Ltd [1958] 1 W.L.R. 1216; [1958] 3 All E.R. 540, p.546 and the proposed amendment is sought late in the day after the pre-trial conference, in mala fide, and or in an over ambitious attempt to avoid the main issue or to prolong the trial unnecessarily, as I have analyzed in the ruling.
   
2. The Plaintiff and defendant are landlord and tenant. The property is a commercial property in the middle of the city where the Defendant is conducting business of a supermarket under the name and style 'Food for Less'. Earlier, after the expiration of the initial term for the lease, Plaintiff filled an action for eviction in terms of the Section 169 of the Land Transfer Act, though the Plaintiff was successful in the High Court, the action for the eviction of the Defendant was dismissed in the Court of Appeal and the Plaintiff filled the present writ of summons against the Defendant. In High Court as well as in Court of Appeal the Defendant unequivocally admitted building of mezzanine floor in Plaintiff's premises, and also produced their engineer's letter which was submitted to City Council to ensure the safety of the mezzanine floor that Defendant had built, and its effect to the structure of the building. The Defendant had obtained this engineers' report as the City Council has requested that mezzanine floor to be demolished. This fact of Defendant building a mezzanine floor, was maintained throughout this action till this summons for amendment is served, as well as in the previous proceedings for eviction. Now the Defendant seeks to change the position that they never build a mezzanine floor, and attempts to state that it was built by the Plaintiff, to put the blame to Plaintiff. It is to be noted that City Council has also warned the Defendant and if he did not build a single mezzanine floor the Defendant would have simply denied it to city council, rather than obtaining an engineers' report as to the strength and the safety of it at their expense and has also assured the City Council that Defendant would lodge "As-Built" drawings. It is to be noted that said engineer's report was never even copied to the Plaintiff, indicating that it was done behest of the Defendant and Defendant directly dealt with the issue of mezzanine floor construction without the approval of the City Council, even without informing the Plaintiff (landlord). It is also noted that when the issue of mezzanine floor was first raised by the City Council, the Plaintiff informed the Council that it was built by the Defendant who was in occupation as a tenant at that time. The Defendant did not deny building a mezzanine floor and has also submitted materials supporting it in the previous proceeding in High Court as well as in Court of Appeal. These are all materials that were submitted by the Defendant in the previous action filled by the Plaintiff for summary eviction in terms of the Section 169 of the Land Transfer Act. There are two judgments by the High Court and Court of Appeal and in both judgments, there were no dispute as to the person who built the mezzanine floor as the Defendant not only admitted the building of the mezzanine floor but also has submitted documentary proof to the structural strength of it and has also stated that it was built with the knowledge of the Plaintiff and has also pleaded the Defence of estoppel, waiver and or acquiescence. This contentions did not confined to the previous proceedings but also maintained more succinctly in the statement of defence, but nearly after two years from the statement of defence suddenly seeks to change its position that they maintained throughout this action as well as in the High Court and also in the Court of Appeal in the previous action. There is no reason given for such a complete reversion of their stance.
   
3. There is no doubt that the mezzanine floor was built by the Defendant, on the material before me .So the objection for the amendment is sustained. The Court is entitled to have regard to the merits of the case in an application to amend if the merits are readily apparent and are so apparent without prolonged investigation into the merits of the case (King's Quality Ltd v A.J. Pants Ltd [1997]3 All E.R. 267). In both High Court and also in the Court of Appeal the fact that mezzanine floor was built by the Defendant was admitted and was also held in the same manner, in both courts in those respective judgments. The Defendant had filled an affidavit admitting the said fact and also supported the building of mezzanine floor with documentary evidence that was admitted by High Court as well as in Court of Appeal. So, even without any investigation of the fact that who built the mezzanine floor, it is clear that it was built by the Defendant in the Plaintiff's rented premises. It is an admitted fact in High Court and also in Court of Appeal in the previous proceedings and also in this action in statement of defence where the Defendant has more elaborately maintained that same status. Now, with the amendment sought by the Defendant it is trying to take a U-turn and state that the Defendant never built a mezzanine floor is clearly without any merits and only can be explained as a device to deviate the main issue in this action and to prolong this action unnecessarily and also done with mala fide. It is also noted that the said complete opposite position at the middle of the action, though taken before the trial, was prompted after the discovery and pre trial conference was held, and has not explained the reason for such a complete change of clearly accepted position in both courts in previous action. In the absence of any explanation, one cannot rule out the possibility of discovering the evidence at hand with the Plaintiff at discovery stage and also in the pretrial conference and changing their position in mala fide, so as to prolong the trial, and to deny even the facts which were never in dispute till this summons for amendment were filled. It is to be noted that by changing its position at this late stage, though before the trial, this would prejudice the plaintiff and would amount to abuse of process and the Defendant is trying to change an admission in this action to an issue if the said proposed amendment is allowed. It is clear that for the said amendment will not serve the purpose of "determining the real question in controversy between the parties to any proceedings or of correcting any defects or errors in any proceedings." Jenkins L. J. in R. L. Baker Ltd v Medway Building & Supplies Ltd [1958] 1 W.L.R. 1216; [1958] 3 All E.R. 540, p.546and the amendment sought is nothing short 'of fraudulent or intended to overreach' per Bowen L.J. in Cropper v. Smith [1884] UKLawRpCh 91; (1883) 26 Ch. D. 700, pp. 710 – 711 and the discretion granted to the court should not be exercised in favour of the Defendant in allowing the amendment, for the reasons given in this ruling. The amendment to paragraph 11 of the statement of claim is refused.
   

2. FACTS
   

4. The Plaintiff and the Defendant are landlord and tenant and initially the Plaintiff has leased the premises for the Defendant on a written contract. At the expiration of the said initial term the Plaintiff filled an action for eviction from the premises in terms of Section 169 of the Land Transfer Act.
   
5. In the said application for the eviction in affidavit in reply filled by the Defendant's behalf sworn by Rudra Prasad has not only admitted that they built the mezzanine floor, but also stated that the Plaintiff has also acquiesced with the building of it and estopped from raising the issue again.
   
6. In the statement of defence the same position was maintained till the conclusion of the pretrial conference and after the conclusion of pretrial conference the Defendant sought to amend the statement of defence denying building of any mezzanine floor.
   
7. The application before the Court by the Defendant is to amend the Statement of Defence. A proposed Amended Statement of Defence was annexed with the Application filed on 7th March, 2008. The Defendant is trying of introduce completely new proposition from their defence in the amended paragraph 11 of the proposed statement of claim. The other amendment of insertion of paragraph 23 is not objected by the Plaintiff. So, the insertion of paragraph 23 sought by the Defendant is allowed subject to a cost of $1,000 as it was sought late. The objection is only concerning the paragraph 11 of the proposed statement of defence. (hereinafter the amendment refers only to what is sought in paragraph 11)
   

The proposed amended paragraph 11 reads as follows

"As to paragraph 21 of the Statement of Claim the Defendant says that the Plaintiff for its ulterior motives wrongly reported the matter to the Suva City Council and wrongly used and influenced the Suva City Council in the matter. There are two Mezzanine Floors in the premises and both of them have been constructed by the Plaintiff itself. The Defendant only built a ceiling in the rafters at the rear Mezzanine Floor during the fit-out period with the full knowledge and consent of the Plaintiff".

8. The paragraph 11 as it stands in the statement of defence is reproduced below for easy comparison
   

'11. As to paragraph 21 of the Statement of Claim the Defendant says that the Plaintiff wrongly reported the matter to the Suva City Council and wrongly used and influenced at the Suva City Council in the matter. There are two Mezzanine Floors in the premises, one has been constructed by the Plaintiff itself and the other one was constructed during the fit-out period by the Defendant and with the full knowledge and consent of the Plaintiff.' (emphasis is added)

9. It should be noted that the Defendant has admitted the building of mezzanine floor and has also stated that it was built by them with the full knowledge of the Plaintiff. The said admission is clearly not a mistake as Defendant himself has submitted evidence in support of the said contention, and the proposed amendment is clearly and overreach without merits supporting the said amendment.
   

100. LAW AND ANALYSIS
     

10. This is the Defendants application to amend his Statement of Defence pursuant to Order 25 rule 5 of the High Court Rules 1988.The law relating to grant of leave to amend pleadings is set out under Order 20 rule 5 off the Supreme Court Practice 1999.
    

Order 20 Rule 5 of the High Court Rules which provides:

"5-(1) Subject to Order 15, Rule 6,8 and 9 and the following provisions of this rule, the Court may at any stage of the proceedings allow the Plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct."

11. It should be noted the court is granted a discretion to allow any amendment at any time of proceedings, but this discretion has to be exercised in accordance with the accepted norms and principles of law. The Plaintiff is objecting to the said amendment and relies on the affidavit evidence and findings by this Court and the Court of Appeal in the related Civil Action No. 78 of 2005 in relation to these proceedings.
    
12. Under Order 20/ 8/6 of the Supreme Court Practice of 1999 under the heading 'General principles for grant of leave to amend' at page 379 it is stated that:
    

"General principles for grant of leave to amend (rr5, 7 and 8)-It is a guiding principle of cardinal importance on the question of amendment that, generally speaking, all such amendments ought to be made "for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defects or errors in any proceedings." (see per Jenkins L. J. in R. L. Baker Ltd v Medway Building & Supplies Ltd [1958] 1 W.L.R. 1216; [1958] 3 All E.R. 540, p.546)." (Emphasis added)

It is well established principle that the object of the amendment after the closing of the pleading Court is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights...I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace... it seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of rights on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right"(per Bowen L.J. in Cropper v. Smith [1884] UKLawRpCh 91; (1883) 26 Ch. D. 700, pp. 710 – 711, with which observations A.L. Smith L.J., expressed "emphatic agreement" in Shoe Machinery Co. v. Cultam (1896) 1 Ch. 108. P. 112)."

13. It should be noted what is paramount in the exercise of the discretion of the court in determining an application for amendment is whether the amendment will lead to a decision of the real matter in controversy and if so to allow the pleading to be corrected with necessary amendment. This cannot be used to amend the pleading to deviate from the real matter of controversy, and to change the position of a party merely because it wanted to change it in such a way without a valid and acceptable reason, as in this action. The Defendant is seeking the said amendment denying the building of a mezzanine floor, which they clearly admitted previously with overwhelming evidence and the said denial is nothing short of an act of mala fide, without any acceptable reason for such a deviation.
    
14. Under Order 20/ 8/6 of the Supreme Court Practice of 1999 under the heading 'General principles for grant of leave to amend' at page 379 further stated as follows
    

"In Tildesley v. Harper [1878] UKLawRpCh 284; (1876) 10 Ch. D. 393, pp 396, 397, Bramwell L.J. said:

"My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by this blunder, he had done some injury to his opponent which could not be compensated for by costs or otherwise." "However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs" (per Brett M.R. Clarapede v. Commercial Union Association (1883) 32 WR 262, p263; Weldon v. Neal (1887)19 QBD 394 p.396. Australian Steam Navigation Co. v. Smith [1889] UKLawRpAC 12; (1889) 14 App. Cas. 318 p 320; Hunt v. Rice & Sons (1937) 53 TLR 931, C.A and see the remarks of Lindley L.J. Indigo Co. v. Ogilvy (1891) 2 Ch. 39; and of Pollock B. Steward v. North Metropolitan Tramways Co.(1886) 16 QBD.178, p.180, and per Esher M.R. p.558, C.A.). An amendment ought to be allowed if thereby "the real substantial question can be raised between the parties," and multiplicity of legal proceedings avoided (Kurtz v. Spence (1888) 36 Ch, D. 774; The Alert (1895) 72 L.T. 124).

On the other hand it should be remembered that there is a clear difference between allowing amendments to clarify the issues in dispute and those that provide a distinct defence or claim to be raised for the first time (see, per Lord Griffiths in Kettma v Hansel Properties Ltd [11987] A.C 189 at 220).

Leave to amend will be given to enable the defendant to raise a defence arising from a change in the law since the commencement of the proceedings affecting the rights of the parties or the relief or remedy claimed by the plaintiff, even though this might lead to additional delay and expense and much longer trial, e.g. that the plaintiffs have acted in contravention of Art. 85 (alleging undue restriction of competition) and Article 86 (alleging abuse of dominant market position) of the treaty establishing the European Economic Community (the "Treaty of Rome") which became part of the law of the United Kingdom by the European Community Act 1972, so as to become disentitled to their claim for an injunction (Application des Gaz SA v Falks Veritas Ltd [1974] Ch. 381;[1974]3 All E.R. 51 CA)...

Where a proposed amendment is found upon material obtained on discovery from the defendant and the plaintiff also intends to use if for some purpose ulterior to the pursuit of the action(e.g. to provide such information to third parties so that they could bring an action), the plaintiff should not be allowed to amend a statement of claim endorse on the writ and so it the public domain but instead the amendment should be made as a statement of claim separate from the writ and thus not available for public inspection(MialanoAssicuranzionaSpA v Walbrook Insurance Co Ltd [1994] 1 W.L.R 977 see too Omar v Omar [1995] 1 W.L.R. 1428, use of documents disclosed in relation to Mareva relief permitted to amend claim and at trial.

The Court is entitled to have regard to the merits of the case in an application to amend if the merits are readily apparent and are so apparent without prolonged investigation into the merits of the case (King's Quality Ltd v A.J. Paints Ltd [1997] 3 All E.R. 267)." (emphasis added)

15. The Plaintiff alleges that the Defendant is acting mala fide in making the amendment sought. There are no acceptable reasons for the change of the position that the Defendant had maintained in this action as well as in the previous action. If the Defendant did not build the mezzanine floor, why it did not state so, in the first opportunity, needs an explanation in the absence of satisfactory reason for the deviation of the admitted fact. In the circumstances, it cannot be considered as an amendment sought on bona fide by reason of mistake but in mala fide considering all the circumstances of this proposed amendment. If they did not build a mezzanine floor why they did accepted the responsibility and obtained the services of engineering consultants and had requested the same consultants to write to the City Council, when the City Council requested the same to be removed is another factor that favours the Plaintiff. The Defendant cannot be in two minds when it admitted the building of a mezzanine floor in High Court as well as in Court of Appeal and also more elaboratively in the statement of defence again admitted building of mezzanine floor.
    
16. It is not only contrary to the Defendant's original Statement of Defence but also intended to alter their position in this action completely as the issue of mezzanine floor was raised in the previous proceedings and the Defendant is trying to change its admission even after completion of pre trial conference without a credible explanation. It is also noted that the Plaintiff has not changed its position regarding the mezzanine floor. It has always maintained that Defendant has built a mezzanine floor without approval.
    
17. It is important to refer to the relevant paragraphs regarding mezzanine floors here in the affidavit in support filled by the Plaintiff in the action for eviction in terms of Section 169 of Land Transfer Act and the affidavit in reply by the Defendant. It shows clearly that the position of the Plaintiff was always that the Defendant has built a mezzanine floor in the premises that was rented and the Defendant has without any reservation admitted that and has also produced documentary proof for the safety of the said mezzanine floor, at their expense.
    
18. Paragraph 9 of the affidavit in support states as follow
    

'That the Plaintiff did not renew the lease since the Defendant had breached clause 4(i) and 4(k) of the lease agreement sometime in October 2003 by building a series of Mezzanine Floors and fixtures in the Plaintiff's leased premises. No consent had been obtained by the Defendant from the Plaintiff to make the additions and alterations to the existing structure of the building. Annex hereto marked with letter "D" is a copy of letter dated 18th November 2003 by the Plaintiff to the Defendant stipulating the blatant breach of the Lease Agreement by the Lessee.

19. The paragraph 5 of the affidavit in reply, filled by the Defendant state as follow

'As to paragraph 9 of the said Affidavit I say as follows

i I totally disagree with the allegation that the Defendant breach clause 4(i) and 4(k) of the lease agreement sometimes in October 2003 or at any other time.

ii The mezzanine floor is totally removable and not a breach of any of the provisions of the lease and was in any event built with the full knowledge and consent of the Plaintiff not long after the Defendant entered in to the Lease Agreement dated 17thDecember 1998.'

iii Mr. Michael Ah Koy a director of the Plaintiff's company and also a signatory to out lease agreement was fully aware of the mezzanine floor construction from its inception and no objection was raised of whatsoever nature at all at that time and not until our lease renewal notice was sent to the Plaintiff. The Plaintiff's officers and directors have on several occasions visited the mezzanine floor and have never before objected to the same. The Plaintiff is therefore deemed to have acquiesced to the same and is estopped from raising this issue and deemed to have waived any objection to it may have to the same.

iv Furthermore the mezzanine floor constructed is in full conformity with Suva City Council standards. It has not done any structural damage to the building (or damaged or defaced any of the ceilings, walls etc) and is fully removable at any point of time. [engineer's Report is annexed hereto and marked "a"]

v In fact the Plaintiff has itself breach Clause 6(e) of the Lease Agreement in that the Plaintiff has failed to provide 100 car parks and has only provided 63......"

20. What is deducible from the above averment in the affidavit in opposition is that Defendant has not only admitted the building of the mezzanine floor, but also state that it was built by them without any objection from the plaintiff and the Plaintiff's director was fully aware of the Defendant's action of building a mezzanine floor. The Defendant has at its own expense obtained a report from the engineers and that letter is addressed to the City Council and copied to the Defendant without even a copy to the Plaintiff (landlord) clearly indicating that Defendant has not only admitted building the mezzanine floor, but also has obtained professional assistance to justify that it has not cause any structural damage to the premises belonging to the Plaintiff. No sensible company would spend money to obtain engineer's report and also informed the City Council that they would lodge an "As built" drawings unless they built it. Clearly, the structure was built by them and this is amply substantiated by their admission that it was built without any objection from the Plaintiff. The Defendant cannot change this position as the evidence produced by the Defendant is overwhelming.
    
21. Paragraph 11 of the affidavit in support state
    

'11. The Defendant failed to obtain the consent of the Suva City Council prior to undertaking the alterations and construction as a result of which the Plaintiff has now received a Demolition Notice from the Suva City Council. The Notice also threatens Criminal Prosecution. I annex here to the Demolition Notice dated 21st December 2004 from the Suva City Council to the Plaintiff marked with letter "E".

22. The affidavit in reply, by the Defendant at paragraph 5 stated
    

'5. As to paragraph 11 of the said Affidavit I say as follows

i The Demolition Notice is orchestrated by the Plaintiff in its long series of actions to attempt to increase the Defendant's rental.

ii The consent of the Suva City Council is not required to shelving done by the Defendant or the removable mezzanine floor. The Defendant's Engineers have, in any event written[Annexure "A"] to the Council to regularize the situation and I am advised by the said Engineers that there should be no further problem in this matter"

23. It is clear that the Defendant has expressly admitted at para 5(ii) that it had built a mezzanine floor and the consent of the city council is not required and has also obtained the advice from the Engineers.
    
24. The said letter is dated 20th February,2005 and addressed to the The Town Clerk, Suva City Council, on the direction of the Defendant by the engineers, state as follows
    

"Re Temporary Mezzanine at Food for Less Super market Rodwell Road, Suva.

We refer to the Suva City Council letter of 4th February, 2005 regarding construction of a mezzanine at the rear of the structure.

We advise that Chand engineering Consultants Ltd, have carried out an inspection of the mezzanine that has been constructed and we are in the process of preparing "as-Built" drawings for lodgement onto Suva City Council for your records.

It is noted that the mezzanine is utilized for light storage only. The mezzanine that has been constructed is a temporary structure and is structurally in safe and sound condition. We further advise that the construction of the mezzanine has not caused any instability to the existing main building and can be removed at any time without causing any damages to the existing main building.

We trust that the discussions stipulate above is acceptable to you. Please noted that the 'As-Built" drawings would be submitted to Suva City Council as soon as they are complete. Please contact the undersigned should you wish to discuss any matters pertaining to the above.'

25. The said letter was copied to the surveyor of the city council and to the director of the Defendant there was not even a copy to the Plaintiff as the landlord of the premises. It is clear indication that Plaintiff was in the dark as to the said assurance of the engineering consultants. So, it is clear that this engineering consultants were engaged by the Defendant and Defendant has admitted that they have built a mezzanine floor and it was not a mistake to admit the same as the evidence was overwhelming, as they have even tried to justify the building by obtaining services of an engineering consultants.
    
26. The Defendant has prior to the institution of this action, even obtained an engineering report and has also assured that it will submit drawings on "As-Built" basis. This shows that Defendant has built a mezzanine floor, as all the said evidence was submitted by the Defendant and has also relied by High Court as well as in the Court of Appeal. So, any deviation needs serious consideration by court, unless an acceptable explanation is given for such deviation from the admitted fact. It is noteworthy that the same law firm and same lawyer appeared in this application as well as in the previous proceedings and the issue before the court was also the same, difference being that this is an action based on a writ and the previous action was an action for summary procedure (originating summons) for eviction in terms of Section 169 of Land Transfer Act. The court is require to be satisfied as to the truth and substantially of the proposed amendment (Lawrance v. Norreys [1888] UKLawRpCh 116; (1890) 39 Ch. D. 213; see judgment of Stirling J. p.221, and of Bowen L.J. p. 235) and clearly there is no such material submitted to court in the summons and also in the affidavit in support seeking amendment.
    
27. The Supreme Court Rules (1999) further goes on to state under Order 20/8/10 at p 382 state under the heading "Before the trial or hearing" state as follows
    

"Before the trial or hearing(rr5,7 and 8)- Leave is readily granted, on payment of the costs occasioned, unless the opponent will be placed in a worse position than he would have been if the amended pleading had been served in the first instance (Steward v North metropolitan Tramways Co (1885) 16 Q.B. D 178) or some injury caused to him for which he cannot be compensated by payment of costs B (See "Costs no remedy", para 20/8/20)..........

Under the same heading "Before the trial or hearing" it further state at p 382

"There will be difficulty however, where there is ground for believing that the application is not made in good faith. Thus, it either party seeks to amend his pleading, by introducing for the first time allegations of fraud, or misrepresentation or other such serious allegation, the Court will ask why this new case was not presented originally; and may require to be satisfied as to the truth and substantially of the proposed amendment (Lawrance v. Norreys [1888] UKLawRpCh 116; (1890) 39 Ch. D. 213; see judgment of Stirling J. p.221, and of Bowen L.J. p. 235).

So in a libel action, if the defendant seeks at a late stage to amend his defence by adding a plea of justification, his application will be closely inquired into and it will be allowed where he has shown due diligence in making his inquiries and investigations, but it may well be refused if he has been guilty of delay or has not made proper inquiries earlier(Associated Leisure Ltd v Associated newspapers Ltd [1970] 2 Q.B 450 [1970]2 All E.R. 754, CA)" (Emphasis added)

28. So it is clear that even before trial, the position regarding the amendment is not always favourable for the party seeking amendment, and there is a discretion with court that has to be exercised with due regard to the established principles on amendment. Where there is a delay, even though it is before the commencement of the trial, the amendment should not be granted as of a right, but the discretion of the court has to be exercised judiciously. In the Associated Leisure Ltd v Associated newspapers Ltd [1970] 2 Q.B 450 [1970]2 All E.R. 754, CA it was held that though the trial has not started, if the party applying for amendment is guilty of delay and has not made proper inquiries the amendment can be refused. Clearly, the Defendant cannot admit that they built the mezzanine floor unless they did it. The evidence they have submitted clearly indicate that Defendant has built a mezzanine floor.
    
29. In the case before me there is a clearly a delay as the Plaintiff has raised the issue of Defendant building mezzanine floor in the previous proceedings and Defendant without any reservation has admitted building the mezzanine floor and has also gone to the extent of obtaining an engineer's certificate to substantiate that these constructions are not affecting the building, structurally. If those mezzanine floors were not constructed by the Defendant, as he had admitted in the previous proceedings as well as in the statement of defence filled on 3rdJuly, 2006, needs an explanation which they had failed to do. In paragraph 11 of the statement of defence it was admitted that they built a mezzanine floor. It stated that mezzanine floor 'has been constructed by the Plaintiff itself and the other one was constructed during the fit-out period by the Defendant and with the full knowledge and consent of the Plaintiff.' So, the contention that the Defendant did not build a mezzanine floor is clearly untenable.
    
30. The letter signed by Chand Engineering Consultants Ltd was only copied to the Building Surveyor, Suva City Council and to Director of Food for Less Supermarket. This letter as well as the affidavit in reply to the affidavit in support unequivocally admitted that the said engineers were engaged by the Defendant to obtain an engineer's report. It is clear from their own admission as well as from the said letter that the Defendant being a tenant has built the mezzanine floor and was prepared to lodge even "As-Built" drawings to the Suva City Council, and this clearly indicate that it was built by the Defendant. The denial of building a mezzanine floor by the Defendant in the proposed statement of defence is clearly not acceptable from the available evidence and the Defendant has not produced any fresh evidence that made them to deviate from such an established fact from their own evidence that was produced before the High Court as well as in Court of Appeal. Even both judgments have also held on the said issue of Defendant constructing Mezzanine floor.
    
31. This action originates from the initial proceedings filed by the Plaintiff in Civil Action No. 78 of 2005 by way of an Originating Summons against the Defendant whereby it had sought immediate vacant possession of the subject property but on Appeal the Court of Appeal had decided that the said issue could not be properly decided by way of summary proceedings and hence a Writ of Summons and Statement of Claim has been filed by the Plaintiff in this action to determine the same issue. It is to be noted that Plaintiff has always stated that Defendant has built a mezzanine floor in this proceedings as well as in previous proceedings and also in their communication to the city council prior to the institution of action against Defendant, clearly showing consistency in their allegation regarding the building of the mezzanine floor.
    
32. The crux of the Plaintiff's claim against the Defendant in the said Civil Action No. 78 of 2005 and now in this action is that the Plaintiff did not grant renewal of the Lease Agreement dated 9th December 1998 entered into between the Plaintiff and the Defendant since the Defendant is in fundamental breach of clauses 4(j), 4(k) and 7(g) of the said Agreement by making substantial alterations to the Plaintiff's premises occupied by the Defendant by building Mezzanine Floor and fixtures without the prior written consent of the Plaintiff and without the approval of the Suva City Council as required under the terms and conditions of the Lease Agreement. The Plaintiff is therefore inter-alia seeking immediate vacant possession of the said premises. Though the previous action was proceeded by way of originating summons, the issues were similar.
    
33. The Defendant has never denied constructing the Mezzanine Floor prior to seeking this amendment and this is the first occasion that Defendant is seeking to deny the construction of any mezzanine floor. As I have indicated in this ruling before, from their own averments in the affidavit in reply filled in this court opposing the eviction and also on their own evidence that was produced to the court the Defendant has unconditionally admitted the construction. The main defence put forward by the Defendant, has always been that the Plaintiff was fully aware of the Mezzanine floor construction from its inception and never raised any objection to same and was deemed to have been acquiesced to the same. The Plaintiff is therefore estopped from raising this issue and deemed to have waived any objection that it may have to the same, according to the Defendant. The Defendant further alleged that the consent of the Suva City Council was not necessary to the construction of the Mezzanine floor and that the floor is removable. The said contention was also supported by their engineers' letter to the city council.
    
34. The Affidavit in Reply of the Defendant and in particular paragraphs 5 (i) to (iv), paragraphs 9, 13, 14 and 20 of the said Affidavit are self-evident of the fact that the Defendant has always admitted that it has built the Mezzanine floor alleged by the Plaintiff. The Annexure "E" mentioned in paragraph 14 of the said Affidavit (that is, the letter dated 27/11/03 written by the Company Director of the Defendant to the Plaintiff). The said letter which states:
    

"if I agree to enter into a new leasing arrangement whereby the rent payable will be increased substantially than you will give approval of the mezzanine floor structure that we built at our own cost more than 3 years ago and also will forego issues in dispute and will give approval to cut doors in your building in order to have access for us to Yatulau Building." (Emphasis added)

The Judgments of High Court and Court of Appeal

35. It is also clear from the Affidavit evidence in the said Civil Action No. 78 of 2005 that the Plaintiff had allowed the Defendant approximately 10 months to remove the Mezzanine floor and when the Defendant failed to do so the Plaintiff reported the construction of the Mezzanine floor to the Suva City Council as a result of which a Demolition Notice dated 21st December 2004 was issued by the Suva City Council requiring the said Mezzanine floor to be remove. Whilst not disputing the contents of the said Demolition Notice the Defendant's alleged defence to same is only to the effect that the said Demolition Notice was allegedly orchestrated by the Plaintiff.
    
36. Without prejudice to what was already held in this ruling, I will now consider the findings of the High Court and Court of Appeal on the issue of mezzanine floors. In the Judgment of the High Court Civil Action No. 78 of 2005 the Court observed the fact that the Defendant "admits constructing the mezzanine floor" (page 5 of the Judgment). On appeal by the Defendant against the High court Judgment to the Court of Appeal, the Court of Appeal held that two important facts were not in dispute, that is, the Defendant had constructed one or more substantial Mezzanine floors and the Defendant did not obtain the prior written consent of the Plaintiff or the approval of the Suva City Council for its construction. In this respect the Plaintiff submitted the following observations of the Court of Appeal in Civil Appeal No. ABU 0059/2005 at paragraph [7] on page 3 of its Judgment:
    

"It is not disputed that shortly after the parties entered into the lease agreement one or more substantial mezzanine floors were constructed by the Appellant within the premises. It is not disputed that the Appellant did not, before undertaking the construction of the mezzanine floors obtain either the prior written consent of the Respondent or the approval of the Suva City Council."

37. Further at paragraph [20] on page of 8 of Judgment of the Court of Appeal said:
    

"......As will have been seen from the judge's summary of the Appellant's submissions, set out in paragraph 14 above, no mention was made by the judge in that summary of the possibility either that the Respondent had in fact agreed to the construction of the mezzanine floors or that it had either waived the obvious breach of clauses 4(j), 4(k) and 7(g) of the lease or alternatively had acquiesced in them."

38. Furthermore at paragraph [22] on page 9 the Court of Appeal said:
    

"The Appellant did not deny that it has commissioned and completed major alterations to the leased premises. It could not do so since the substantial mezzanine floors were and are there for all to see. Neither could it point to any written request or authority to make those substantial alterations. It could not deny that the consent of the Suva City Council had never been obtained nor that the Suva City Council had demanded the demolition of the mezzanine floors. Rather than attempt to do any of these things however, it advanced the proposition that the installation of the mezzanine floors was in fact well known to the Respondent and that no objection had been taken to their construction or installation in the five years that followed from October 1998 to November 2003." (Emphasis added)

39. The Court of Appeal further at paragraph [23] referred to paragraphs 5(ii), 5(iii) and 9 of the Defendant's said Affidavit in respect of the Defendant's contention that the mezzanine floors were constructed by it with the full knowledge and consent of the Plaintiff's director, Mr. Michael Ah Koy and other directors and its suggestion that the Plaintiff is therefore deemed to have acquiesced in the same and stopped from raising this issue and deemed to have waived any objection that it may have to the same. The Court of Appeal then formed the view that it was this aspect of the Defendant's contention of waiver, estoppels and acquiescence that raised an arguable issue of fact with "important and decisive legal consequences' which could not be determined appropriately by way of the Section 169 proceedings.
    
40. The High Court and Court of Appeal have already made findings of fact that the Defendant did in fact construct the Mezzanine Floor alleged by the Plaintiff and the Defendant did not prior to undertaking the said substantial alterations to the premises either seek the Plaintiff's prior written consent or the required approval of the Suva City Council.
    
41. The only issue remaining to be decided by this Court by way of a writ action is whether the Plaintiff was in fact through its Director, Mr. Michael Ah Koy, was fully aware of the construction of the Mezzanine floor and is therefore deemed to have acquiesced to that same and to have waived any objection that it may have to the same and estopped from raising this issue. This will be completely changed and the scope of the trial will be changed if the proposed amendment is allowed. This would clearly against the accepted principles regarding the pleadings that is meant for narrowing the issues of an action.
    
42. The pre-trial conference and the discoveries are not meant to for parties to abuse, so that instead of narrowing the issues of the trial, it cannot be utilized to deny the facts that were already admitted, merely to prolog the trial as they are benefitted from such an protracted trial instead of the pleaded action before the court. If this kind of amendment is allowed, without any reason for deviation from the accepted facts, this will amount to abuse of process by parties for their benefit, specially when they are aware of the evidence and materials at the Plaintiff's hand.
    
43. The Defendant has all along admitted and maintained that it had built the Mezzanine Floor as alleged by the Plaintiff and this is the bone of contention in this matter as well as in the previous proceeding according to the Plaintiff. The Defendant has been legally represented by the same Solicitors from the commencement of these proceedings in 2005 and thus been receiving legal advice in respect of this action from the same Solicitors so there is no issue of receiving any form of ill-advice or different advice from different Solicitors as an excuse for altering his line of defence at this late stage, it is to be noted that the Defendant has not submitted any acceptable reason for delay in making this application for the leave to amend the statement of defence.
    
44. As stated under Order 20/5-8/10 of the Supreme Court Rules (1999) if there is ground for believing that the application is not made in good faith there will be difficulty and the "Court will ask why this new case was not presented originally; and may require to be satisfied as to the truth and substantially of the proposed amendment".
    
45. In Reddy Construction Company Limited v Pacific Gas Company Limited (26 FLR 121, FCA at 125-126) the Court of Appeal stated that:
    

"The primary rule is that leave may be granted at any time to amend on terms I it can be done without injustice to the other side. The general practice to be gleaned from reported cases is to aloe an amendment so that the real issue may be tried, no matter that the initial steps may have failed to delineate matters. Litigation should not only be conclusive once commenced, but it should deal with the whole contest between parties, even if it takes some time and some amendment for the crux of the matter to be distilled. The proviso, however, that amendments will not be allowed which will work an injustice is also always looked at with care. So in many reported cases we see refusal to amend at a late stage particularly where a defence has been developed and it would be unfair to allow a ground to be changed".

46. Defendant is trying to amend at a late stage a defence which has been well developed and will cause grave injustice to the Plaintiff if the amendment is allowed. In this case the injustice likely to be caused to the Plaintiff cannot be compensated by costs and if the amendment is allowed it may lead to abuse of process and also will prompt parties to amend the pleading to broaden the issues that were narrow and clear from the beginning of the action as in this case.
    
47. In the Supreme Court Rules (1999) under Order 20/5-8/21 sub-headed "Dishonest application" it is stated that:
    

"In Lawrence v. Norreys [1888] UKLawRpCh 116; (1890) 39 Ch. D. 213, The Divisional Court was not satisfied as to the truth and substantially of the proposed amendment: see judgment of Stirling J., p.221; and Bowen L.J., p.235. It therefore refused leave to amend, and dismissed the action. The Plaintiff the brought an action in Ch. D., in which the proposed amendments were set out more fully in the statement of claim, and this action was subsequently dismissed ad being an abuse of the process of the Court (15 App. Cas.210)."

Furthermore under Order 20/5-8/20 of the White Book sub-headed "Delay" it is stated that:

"A slight delay is not sufficient ground for refusing leave. But if an application which could easily have been made at a much earlier stage of the proceedings be delayed till after evidence given and a point of law argued, leave may be refused (James v. Smith [1890] UKLawRpCh 141; [1891] 1 Ch. 384...."

4. CONCLUSION
   

48. The Plaintiff has sought amendment after the pre trial conference, before the pretrial conference minutes were finalized. The Plaintiff is objecting to amendment to paragraph 11 of the statement of defence. The said paragraph is seeking to deny the fact of Defendant building a mezzanine floor in the Plaintiff's premises. These are admitted facts by the Defendant in this proceedings as well as in the concluded proceedings relating to eviction from the premises. Clearly, the proposed amendment to paragraph 11 of the statement of claim cannot sustain on materials before me and was sought in mala fide. If such amendment is allowed the real issue of the action will not be determined and the issue will not be narrowed down. So the said objection by the Plaintiff to the amendment sought to paragraph 11 of the statement of defence is sustained. The insertion of paragraph 23 to the statement of defence is allowed, and it was not objected by the Plaintiff.
    

5. FINAL ORDERS
   
   1. The Proposed paragraph 11 of the amended statement of defence is refused.
      
   2. The amendment through insertion of paragraph 23 to the statement of defence is allowed, subject to a cost of $1,000. The Defendant is granted 14 days to file and serve the amended statement of defence with the insertion of paragraph 23 as proposed.
      
   100. The cost of this application is assessed summarily at $1,500.
        
   4. Costs in (b) & (c) above to be paid within 14 days.
      

Dated at Suva this 30th day of December, 2011

Mr. Deepthi Amaratunga
Master of the High Court
Suva