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Wakaya Ltd v Niusbaum [2012] FJHC 832; HBC256.2010 (27 January 2012)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 256 of 2010

BETWEEN:

WAKAYA LIMITED
PLAINTIFF

AND

MASHA NUSBAUM.
1ST DEFENDANT

AND

KENNETH CHAMBERS
2ND DEFENDANT

BEFORE : Master Deepthi Amaratunga

COUNSEL : Mr.R.Naidu for the Plaintiff
Mr. Hurai for the 1stDefendant
2nd Defendant in person

Date of Hearing : 5th and 24th June, 2011

Date of Ruling : 27 January, 2012

RULING

1. INTRODUCTION
   

1. Plaintiff filled this action against the 1st and 2nd Defendants by way of writ of summons for alleged damagesincurred for intended burial on a land in Wakaya Island. The Plaintiff has also sought an interiminjunction preventing the burial in a land that is situated in Wakaya Island. Though the Plaintiff was able to obtain an interim injuciton for the High Court on 6th September, 2010 the said decision was unanimously overturned by the Court of Appeal on 15th March, 2011 and the matter was referred to the master for the assessment of damages that incurred to the Defendants by obtaining the said interlocutlory injunction. The Plaintiff has obtained leave to appeal of that decision out of time and the appeal to the Supreme Court has not been determined yet.
   
2. On 23rd September, 2011, the Defendants have filled their statement of Defence and in that the Defendants have pleaded ten causes of actions against the Plaintiff. They are Fraud (unconscionable conduct), Tresspass, interference with acress to foreshore, Restrictive covenenant, caveat without reasonable cause, abuse of process, slander and defamation, interfereing with burial arrangements, Derogation for grant of fee simple absolute in possession, and conspiracy.
   
3. A reply to the Defence and Counterclaim was filled on 10th November, 2010 and a reply to the counterclaim was also filled on 1st December,2010
   
4. On 29th April, 2011 the Defendants have filled a motion to join the 'counterclaim defendants' in terms of Order 15 rule 6(2)(b) of the High Court Rules of 1988.
   
5. The applicationis opposed by the Plaintiff as well as the proposed parties that the Defendant intends to join.
   

2. LAW AND ANALYSIS
   

6. The Order 15 rule 6 state as follows :
   

"Misjoinder and nonjoinder of parties (O.15, R.6)

6.-(1) No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party; and the Court may determine the issues or questions in dispute so far as they effect the rights and interests of the persons who are parties to the cause or matter.

(2) Subject to the provisions of this rule, at any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application –

(a) Order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

(b) Order any of the following persons to be added as a party, namely –

(i) Any person who ought to have joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or

(ii) Any person between whom and any party to the cause or matter they may exist a question or issue arising out of or relating to or connected with any relief or remedy which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.

(3) An application by any person for an order under paragraph (2) adding him as a party must, except with the leave of the Court, be supported by an affidavit showing his interest in the matters in dispute or, as the case may be, the question or issue to be determined as between him and any party to the cause or matter.

(4) No person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorized.

(5) No person shall be added or substituted as a party after the expiry of any relevant period of limitation unless either –

(a) the relevant period was current at the date when proceedings were commenced and it is necessary for the determination of the action that the new party should be added, or substituted, or

(b) the relevant period arises under the provisions of subparagraph

(i) of the proviso to paragraph 4(1)(d) of the Limitation Act and the Court directs that those provisions should not apply to the action by or against the new party.

In this paragraph "any relevant period of limitation" means a time limit under the Limitation Act.

(6) The addition or substitution of a new party shall be treated as necessary for the purposes of paragraph (5) (a) if, and only if, the Court is satisfied that –

(a) the new party is a necessary party to the action in that property is vested in him at law or in equity and the plaintiff's claim in respect of an equitable interest in that property is liable to be defeated unless the new party is joined, or

(b) the relevant cause of action is vested in the new party and the plaintiff jointly but not severally, or

(c) the new party is the Attorney – General and the proceedings should have been brought be relator proceedings in his name, or

(d) the new party is a company in which the plaintiff is a shareholder and on whose behalf the plaintiff is suing to enforce a right vested in the company, or

(e) the new party is sued jointly with the defendant and is not also liable severally with him and failure to join the new party might render the claim unenforceable."

7. The Defendants seeks to add parties to this action based on their counter claims. The Plaintiff's action against the Defendant was based on the attempt to burry a dead body of the son of the 1st Defendant who died of an incurable brain tumor. The Plaintiff was able to obtain an interim injuction which resulted the dead body being buried in another location and the Plaintiff virtually obtained the main relief as an interim relief. Although the Court of Appeal dissolved the interim injuncition and also stated categorically that the Plaintiff did not even have a locus standi for interim injunction, by that time the dead body was already buried and the 1st Defendant did not wished to disturb and or inter it from where it was buried.
   
8. In terms of Order 15 rule 6 (3) the application for addition' be supported by an affidavit showing his interest in the matters in dispute or, as the case may be, the question or issue to be determined as between him and any party to the cause or matter.'
   
9. The said affidavit in support of the 2ndDefendant state that the said parties are needed to be added to the action for the alleged conspiracy that was pleaded as the tenth cause of action. The affidavit in support filled by the 1stDefendant also annexed documentary proof to his allegation of conspiracy. I do not seek to venture on the analysis of the said documentary evidence at this moment, but need only to add that none of the documents were denied by the proposed parties in their respective affidavits in opposition and some parties have even opted not to swear an affidavit in opposition clearly indicting that the said documents are undisputed at this moment.
   
10. In Supreme Court Rules of 1999 15/6/6 at page 224-225 it was stated
    

Where Defendants applied to join additional defendantsagaint the plaintiff's wishes for the sole purpose of adding additional plaintiffs in their counterclaim and the presence of the additional parties was not necessary for the determination of the issues as pleaded between the plaintiffs and the defendants the application was refused (Atid Naviagation Co Ltd v Fair play Towage and Shipping Co. Ltd[1955]1 WLR 336[1955] 1 All E.R. 698) Yet a subsidiary compay of a Defendant made subject to a Mareva was added as an addition defend to enable it to join in a counterclaim for malicious prosecution and abuse of process therbing nothing in the rule restriction "matters in dispute " to the claim (Balkanbank v Taheri (No 4)(1995) The Times, April 14)

So, it if clear that the law relating to addition of parties on the application Defendants have evolved over the years and in a case of Balkanbank v Taheri (No 4)(1995) The Times, April 14) it was held that in a counter calim for malicious prosecution and abuse fo process a party can be added on the counter claim as such addition would relate to "matters in dispute". The ratio of this case is applicable to the issue before me as the Defendant also seeks to add the parties based on conspiracy and abuse of process.

11. In Supreme Court Rules of 1999 at page 225 it was stated 'In Kalsi v Kalsi [1992] Fam. Law 333, CA it was held that an order against non-parties, even expressed to be made after being "heard" and "consented to" ought not to have been made without their being added under r6(2).' The statement of defence and counterclaim seeks orders for punitive damages, penalties under Fair Trading Decree and also indemnity cost and any orders made under the said claims would be against the parties that the Defendants seek to join.
    
12. At paragraph 39 of the statement of Defence filled by the Defendants on 23rd September, 2010 states as follows in regard to the claim for conspiracy
    

'At dives time from 17th September, 2007 the plaintiff conspired unlawfully, fraudulently and unconscionably with its employees, servants, officers or agents: Daid Harrison Gilmour of Trump Towers, USA the beneficial owner of Wakaya; meliki Tuinamuana of Suva plaintiff's Finance Directory, Renee Lal and DilipJamandas of Suva, barristers and solicitors for plaintiff, to cause the defendants loss as aforesaid under Counterclaim Cause of Action 1-9 hereof.'

13. This is a very serious and bold allegation against the above named peresonsincuding some lawyers and it is nothing but fair to add them as parties to this action considering the circumstances of the action and the nature of the allegation considering the already delivered judgment of the court of appeal which in no uncertain terms have indicated that the Plaintiff did not even had a locus standi for an interim injunction.
    
14. The Defence to counterclaim was filled on 10th November, 2010 but no application for strike out of the said claim for conspiracy and or other claims wer filled by the Plaintiff. The findings of the Court of Appeal is that even the Plaintiff did not have a locus standi to apply for an interim injuciton, but the interim injuction was granted and the sole purpose of the claim and the interim relief was to prevent the burial of 2nd Defendant's son, was fulfilled .
    
15. The writ of summons filled by the Plaintiff against the Defendants are solely based on the said attempted burial, which could not be materialized due to the interim injunction that was obtained, when the Plaintiff even did not have a locus standi for such an interim relief.
    
16. The Court of Appeal has referred the matter to the Master to assess the damages that incurred by obtaining an injuciton when the Plaintiff did not even have a locus standi. Under the circumstances and the details described in the affidavit in support as well as well as in the annexing documents to it the Defendants are alleging conspiracy and claiming damages in the counter claim.
    
17. Considering the affidavit in support and the supporting documents and the statement of defence and the counterclaim for conspiracy which is directly alleged againsttheparties whom the Defendants seek to add there is clearly 'a question or issue arising out of or relating to or connected with any relief or remedy which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.'
    

100. CONCLUSION
     

18. The Plaintiff has alleged conspiracy againt the parties whom he wished to be added parties named in paragraph relaing to the caim on the conspiracy. Alarady the interim injunction that was obtained and operational till it was dissolved by the Court of Appeal has virtually obtained what the Plaintiff intended, namely not to allow the dead body of the 1stDefendant's son being buried in the land described in the action. In the circumstances based on the rules of natural justice as well as on the case of Balkanbank v Taheri (No 4)(1995) The Times, April 14) I think that there are questions or issue arising out of or relating to or connected with any relief or remedy which in the opinion of the Court it would be just and convenient to determine as between the Defendants and the parties that are proposed to be joined. In the cricumstances I grant the order in terms of the motion filled on 29th April, 2011. The cost of this application will be cost in the cause for the Defendant.
    

4. FINAL ORDERS
   

1. The Order in terms of the motion dated 29th April, 2011to join the parties.
2. Cost of this application will be Defendants cost in the cause.
   

Dated at Suva this 27th day of January, 2012.

.................................................
Mr. Deepthi Amaratunga
Master of the High Court
Suva