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Greystone Holdings Ltd v Fairdeal - Sila Joint Venture Ltd [2011] FJHC 88; Civil Action 83.2007 (23 February 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. 83 of 2007

BETWEEN:

GREYSTONE HOLDINGS LTD having its registered office at HLB House, Nadi Airport, Fiji Islands.
Plaintiff

AND:

FAIRDEAL – SILA JOINT VENTURE LIMITED having its registered office at HLB House, Nadi Airport, Fiji Islands.
Defendant

Before: Master Anare Tuilevuka.
Solicitors: Lowing Nandan & Associates, Nadi
Sahu Khan & Sahu Khan, Ba

Date of Hearing: 31st January, 2011
23rd February, 2011

RULING

[1]. What is before me now is the plaintiff's application to serve interrogatories. Before I get into that, by way of background, the defendant had filed a Notice of Motion on 3rd April 2007 seeking an interim order to restrain the plaintiff from commencing and/or taking any steps for Winding Up Proceedings against the defendant until the final determination of this action.

[2]. Connors J's ruling on that application dated 31st May 2007 is helpful. What I gather from it is that the plaintiff's substantive action seeks to recover from the defendant monies owing pursuant to an alleged agreement between them. The agreement pertained to the construction of the Navakai Sewarage Treatment Plant. The contract sum was in excess of $1.7m. The contract appears to have been formed out of various documents rather than a single "formal" agreement between the parties. The terms of the payment was to be on a "progress payment" basis. The defendant made some payments to the defendant until the events of 5th December 2006 when it was unable to continue. Ultimately, the contract was terminated by the defendant by letter. Connors J then observes as follows:

[16] The plaintiffs claim against the defendant as pleaded in the statement of claim appears to relate to payments outstanding together with loss of profits on monies that would have been earned pursuant to the agreement. It is this claim that appears to form the amount demanded in the notice issued under section 221 of the Companies Act.

[3]. Since that ruling, the matter has progressed considerably and the parties have exchanged documents and are on the verge of finalizing the pre-trial conference minutes. It was then, according to Ms Suzie Cheer, legal executive of Lowing Nandan & Associates, when it dawned on her principal that most of the issues involved could be dealt with by way of interrogatories.

[4]. That precipitated a series of letters in 2010 from Lowing Nandan & Associates to Sahu Khan & Sahu Khan written and sent on 23rd April, 6th May, 7th April, 16th April, 21st April, 22nd April, 23rd April, 6th May, 17th May, 7th June, 10th June and 16th June 2010.

[5]. What is now before me is the plaintiff's application seeking leave to serve interrogatories on the defendant and that the defendant be ordered to answer them within 14 days. Its application was filed on the 10th of June 2010 pursuant to Order 26 Rules (1) and (2) of the High Court Rules 1988.

[6]. The proposed interrogatories are as follows:

• (a) how much of the works (as defined in the Plaintiff Statement of Claim) have been completed? Provide particulars including but not limited to
  
  • (i) date of completion of various portions of the works
    
  • (ii) the description of the works
    
• (b) how many interim certificates in relation to the works have been issued by Sinclair Knight Mertz? Provide the following particulars:
  
  • (i) dates on the interim certificates
    
  • (ii) description of the works for which the interim certificates were issued
    
  • (iii) amounts certified by the interim certificates for payment to the defendant
    
• (c) how much has been paid to the defendant by the government of Fiji in relation to the works?
  
• (d) how many payments has the government of Fiji made to the defendant in relation to the works?
  
• (e) what were the amounts paid to the defendant in relation to the works and when (provide the dates of payment alongside the amounts paid in chronological order).
  

[7]. Mr. Parmod Kumar, a director of the defendant company, swore an affidavit on the 24th June 2010 and which is filed herein opposition to the interrogatories. The following grounds of opposition emerge from his affidavit:

• (i) interrogatories as to the contents of existing documents ought not to be allowed
  
• (ii) to the best of my knowledge information and belief the documents disclosed in the affidavit and/or Bundle of Documents by both the plaintiff and the defendant contain all the information sought in the proposed interrogatories
  
• (iii) in any event basically in the proposed interrogatories the plaintiff is generally asking what documents the defendant has in its possession or control and/or possession and/or control of other parties who are not parties in these proceedings.
  
• (iv) the plaintiff is seeking as to the evidence the defendant has and/or intends to call at the trial and ought not to be allowed so to do.
  
• (v) the proposed interrogatories basically and effectively are tantamount to cross examination before the trial and/or effectively are put to test the credibility of the proposed witnesses of the defendant having regard to the defence and Counter Claim.
  
• (vi) the object of the interrogatories seems to be to contradict written documents and/or relate to the same and in particular as to the documents already discovered by affidavit of documents and/or of bundle of documents filed and/or effectively discovered in affidavit filed in interlocutory proceedings in this and other related proceedings between the parties herein.
  
• (vii) the plaintiff's application is a 'fishing expedition' and seeking admission of facts which can be proved by witnesses at the trial.
  
• (viii) in any event the Interim Certificates by Sinclair Knights Mertz had been issued to the Government of Fiji and not to the defendant as such and such Certificates to the best of my knowledge information and belief would provide answers to the questions 1,2,3,4 and 5 of the proposed interrogatories and in any event the pleadings and documents already discovered provide further almost full answers to the question above.
  

[8]. Order 26 Rules (1) and (2) state as follows:

1(1) A party to any cause or matter may apply to the Court for an order –

(a) giving him leave to serve on any other party interrogatories relating to any matter in question between the applicant and the other party in the cause or matter, and

(b) requiring that the other party to answer the interrogatories on affidavit within such period as may be specify in the order.

(2) A copy of the proposed interrogatories must be served with the Summons, or the notice under Order 25, Rule 7, by which application for such leave made.

[9]. Whether or not interrogatories will be allowed is purely a matter of discretion for the courts.

[10]. An appropriate starting point in this area of the law is Master Udit's ruling in Mohammed Alam v Colonial National Bank, Queensland Insurance (Fiji) Ltd, Registrar of Titles and Mohammed Shameem Airud Khan (unreported) Civil Action No. HBC 02 of 2006 delivered on 22nd June 2007.

[11]. In the above case, Master Udit reiterated that interrogatories will be premature, and refused on that basis, if the application is made before discoveries are completed or have not been attended to. The interrogator had to be able to show that his interrogatories, if answered when served, would serve a clear litigious purpose by saving costs or promoting the fair and efficient conduct of the action.

[12]. What I surmise from accumulated caselaw material in this area of the law as submitted by Mr. Nandan for the plaintiff are as follows:

• (i) it is not permissible to ask for the names of witnesses. Names of witnesses do not form part of the material facts (see Day Break Pacific Limited & Anr v Donaldson and Ors HC AK CIV 2005-404-765[2006] NZHC 957, Associate Judge Faire; Lord Esher MR in Marriott v Chamberlain [1886] UKLawRpKQB 89; (1886) 17 QBD 154 (CA) at 163).
  
• (ii) it is not permissible to ask what is mere evidence of the facts in dispute (as per Lord Esher MR in Marriott v Chamberlain).
  
• (iii) apart from the above, nearly anything that is material may now be asked. The right to interrogate extends to any facts, the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue.
  
• (iv) the four main objects of interrogatories are:
  
  • to obtain admissions as to facts which will support the case interrogating party.
    
  • to obtain admissions which will destroy or damage the case of the party interrogated.
    
  • interrogatories which are in the nature of a request for further and better particulars.
    
  • interrogatories which seek to obtain accounts from a party occupying a fiduciary position.
    

(see Lockhart J in WA Pines Pty Ltd v Bannerman [1980] FCA 79; (1980) 30 ALR 550 and 574)

(v) attempt must be made to answer an interrogatory as accurately as possible even though complete precision is impossible (Henwood v Radio New Zealand Ltd (1993) 7PRNZ 160 at 163); Douglas v Morning Post (1923) 39 TLR 402).

(vi) where the interrogatory is directed to an act done by a servant or agent, it should expressly require the answering party to enquire of the servant or agent (Rasbotham v Shrosphire Union Railways & Canal Co [1883] UKLawRpCh 171; (1883) 24 Ch D 110 at 113).

(vii) interrogatories should not call for an opinion from the person interrogated (Re Securitibank Ltd (No 32) (1984) 1 PRNZ 523 at 526).

(viii) interrogatories cannot seek information as to the content of documents (Herschfeld v Clarke [1856] Eng R 167; (1856) 11 Exch 712) or to the interpretation of discoverable documents (see Mohammed Alam v Colonial National Bank).

(ix) interrogatories and their answers must be expressed in language of the most rigorous precision and in strict adherence to the letter of the words used (Kupresak v Clifton Bricks (Canberra) Pty Ltd [1985] 75 FLR 172 at 174).

(x) there is no place for reading between the lines. What is required is the expression of the clear meaning that the words bear on their face.

(xi) interrogatories relating solely to credit are not permitted (as per Shameem J in Huang Tzung – Hao v A Team Corporation Ltd [1999] FJHC 160; see also Order 26 Rule 1(4)).

(xii) interrogatories which are questions of law and/or mixed questions of law and fact are, ordinarily, not allowed (AG – Wang New Zealand Ltd [1990 3 NZLR 148, at 151; Nash v Layton [1911] UKLawRpCh 37; (1911) 2 Ch 71; Looker –v- Murphy [1889] VicLawRp 68; (1889) 15 VLR 348, 351, McBride v Dandland [1917] SALawRp 17; (1917) SALR 249, 259; Mohammed Alam v Colonial National Bank).

[13]. My ruling on each interrogatory sought are as follows.

How much of the works (as defined in the Plaintiff Statement of Claim) have been completed? Provide particulars including but not limited to (i) date of completion of various portions of the works (ii) the description of the works?

[14]. I will allow this interrogatory. It is in the nature of a request for further and better particulars. It is not a request for evidence. The answers are relevant to the issues in this case. The defendant has objected that the answers to the interrogatories sought are contained in existing documents. Given that the interrogatories are prima facie allowable - the onus is on the defendant to convince me that the answers to these questions are indeed in documents already discovered. I do not know what these documents are – let alone what they contain. The defendant could at least name the said documents in his affidavit in opposition to give the plaintiff to respond appropriately in his affidavit in reply. Or better still – the defendant could have annexed the documents to his affidavit. He did not do any of these. The plaintiff is entitled to the benefit of the doubt – given that the interrogatories are – as stated – prima facie allowable. I allow this interrogatory.

How many interim certificates in relation to the works have been issued by Sinclair Knight Mertz? Provide the following particulars: (i) dates on the interim certificates (ii) description of the works for which the interim certificates were issued (iii) amounts certified by the interim certificates for payment to the defendant?

[15]. Same as [14] above. These documents undoubtedly are very material to the issues between the parties and are discoverable. It is not clear though from the affidavit of Parmod Kumar whether or not the documents are in the defendant's possession. I see from the defendant's bundle of documents filed on 12th March 2010 that
Payment Certificates No. 1; No. 5, No. 18, and No. 19 are included. Obviously – there are other Payment Certificates. This particular interrogatory – I believe is asking about the balance of Payment Certificates and what work has been certified to have been completed by the defendant vis a vis those other certificates. This is relevant. In this case, it appears to me that the payment certificates that were issued by Sinclair Knight Mertz related to claims for work done by the defendant. As stated above, an answering party can be required by interrogatory to enquire of a servant or agent as to specific acts done by a servant or agent. While SKM may not be an agent of the defendant – I do not see any reason why the same principle should not be extended in the circumstances of this case – which clearly show some relationship between SKM and the defendant. In any event – if the defendant already has the above payment certificates in its possession – I am dead certain that it also has the balance of the payment certificates it its possession or at least within its power to obtain. I will allow this interrogatory.

How much has been paid to the defendant by the government of Fiji in relation to the works?

[16]. Same as [14] and in particular [15] above.

How many payments has the government of Fiji made to the defendant in relation to the works?

[17]. Same as [15] above.

What were the amounts paid to the defendant in relation to the works and when (provide the dates of payment alongside the amounts paid in chronological order).

[18]. Same as [15] above.

[19]. In allowing the above – I have adopted also the approach taken by Master Udit in Mohammed Alam v Colonial National Bank. In my view, the answers to all the above interrogatories are essential for a clear litigious purpose.

"Essential...in the sense that if the matter is left until cross examination at the trial that party will or probably will be irremediably prejudiced in his conduct of the trial or the trial may be unduly interrupted or otherwise disorganized by the later emergence of the information".

(as per Colman J put it in Det Danske Hedeselskabet v KDM [1994] 2 Lloyds Reports 534 at 537).

[20]. I grant leave to the plaintiff to issue the interrogatories set out above in paragraph [6] within 7 days i.e. by Wednesday 02nd March 2011. The defendant is to answer the interrogatories in affidavit form in accordance with the High Court Rules and appropriately, bearing in mind also the volume of case law material on the subject. These are to be filed and served by Wednesday 23rd of March 2011.

Case adjourned to Thursday 24th of March 2011 at 8.30 a.m for mention.

Costs follow the event. I award costs in favour of the plaintiff which I summarily assess at $400 (four hundred dollars only) to be paid by the 24th of March 2011.

Anare Tuilevuka
Master

At Lautoka
23rd February 2011.