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Singh v Victory Mission Church [2015] FJHC 349; HBC127.2009 (14 May 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 127 of 2009

BETWEEN:

PRAKASH SINGH
of Veisari 7½ Miles, Suva
Plaintiff

AND:

VICTORY MISSION CHURCH,
Casula, Liverpool, Sydney, Australia
First Defendant

AND:

ANAND PRASAD & GEORGE MANI
of Victory Mission, PO Box 45, Casula Mall, NSW 2170, 1/45 -47 Whyalla Place, Prestons, NSW 2170, Australia
Second Defendants

Appearance: Plaintiff in Person
: No Appearance for the Defendants

JUDGMENT

[1] Background

The ex-parte summons is filed in this matter by the Plaintiff and sought the following orders:

(i) The Chief Registrar of the High Court to sign all such documents and do all such things may be reasonably required in the name of the Defendants including but not limited to:

"transfer (in the form as directed by the court) to complete the re Transfer of the property comprised and described in the Certificate of Title No. 6491 to the Plaintiff; pursuant to Order of the High Court dated 22nd October, 2009;

(ii) The costs of this application be costs in the cause.

[2] The Plaintiff has filed Ex-parte Summons for execution of transfer documents by the Registrar in pursuant to an Order of the High Court made on 15th October 2009 in this case and the matter was taken up for hearing on 3 September 2012.

[3] The sealed order dated 15 October 2009 by the Chief Registrar states:

"ORDER

BEFORE THE HONOURABLE JUDGE JUSTICE MR DAVENDRA PATHIK IN THE OPEN HIGH COURT ON 15TH OCTOBER 2009

Upon hearing Mr Prakash Singh, the Plaintiff

It is hereby Ordered:

Very well, I enter judgement by default against the defendants jointly and severally ordered that the Defendants to pay the Plaintiff, Prakash Singh, the selling price of $3.5 million with damages and costs. Alternatively, the re transfer of the sold property CT6491 with cost and damages are to be assessed.

Dated at Suva this 22nd Day of October, 2009"

[4] Background

4.1 The Plaintiff had issued Writ of Summons on 8th May 2009 against the Defendants who were living in Australia.

4.2 The Statement of Claim dated 05/05/09 is reproduced as follows:

"1. That on 23rd July 2006 both of you promised to buy and give me houses in Australia and New Zealand as on agreement dated 23/07/06 to the value of $2.4m (Two Million Four Hundred Thousand Dollars) Annexure 1.

2. That Mr Anand Prasad and Mr George Mani have not paid a single cent to me and through lies they had my property transferred to Mr Anand Prasad's name. That they lied to me that $1m (One Million Dollars) was deposited in their solicitors trust account Maharaj Chandra & Associates, Annexure 2.

3. That now Mr Anand Prasad is selling the property to Kattans Holdings Ltd against without paying me a single cent and the transfer has been duly signed. Copy of the transfer, Annexure 3.

4. That without my consent, Mr Anand Prasad signed the transfer. Also he has been holding my property for about nearly three years.

5. That now I am claiming from him to transfer my property back to me without delay.

6. That I am claiming damages and losses as I have lost genuine buyers for my properties.

My claim is $2m (Two Million Dollars)

PLAINTIFF

............................... .............................
Prakash Singh DEO RAJ
Dated: 5/05/09 Project Manager"

On perusal of the Statement of Claim and Annexures 1, 2 and 3 do not divulge any cause of action against the Defendants. Annexure 1 the purported agreement is only an understanding of a future agreement to be entered upon. It is also noted that the agreement was signed by the First Defendant Anand Prasad and George Mani as the representatives for Victory Missions INC. The agreement itself does not refer between whom the agreement was made and who agreed to buy. All the events in the Agreement are to happen at a future date and no formal Agreement in existence or no cause of action being divulged, in the Statement of Claim. The Annexures to the Statement of Claim do not substantiate the reliefs claimed by the Plaintiff and in limine the Statement of Claim is ambiguous, and there is no basis for issuing Writ of Summons.

4.3 The Affidavit of Service was filed by the Plaintiff on 3 June 2009 stating that the Writ of Summons was served on the Defendants at the address given in Australia by registered post. Advice of receipt was annexed to the Affidavit of Service. However, I find the Plaintiff had not complied with the Order 6 Rule (1) of the High Court Rules 1988 which states:

"6 – (1) No writ which is to be served out of the jurisdiction shall be issued without leave of the court:

Provided ...................................

(2) .............................................

(3) .............................................

(4) .............................................."

I emphasis the word shall is a mandatory requirement under the Order 6 Rule (6) (1) to obtain the leave of the court if the writ is to be served out of the jurisdiction and no such application was made to the court to obtain leave to serve by registered post. When the Plaintiff made the application for the Default Judgment, Pathik J. had relied on the statement made by the Plaintiff and not considered whether the Plaintiff had complied with the Order 6 Rule 6(1) and ignored the fact that there was a cause of action against the Defendants to make an order as such. I determine Pathik J's Order is per incuriam and cannot sustain, and determine that the Order made by Pathik J. has no validity and enforceability. As such the Plaintiff is not entitled to the Orders stated in the summons for the said reasons.

Accordingly:

(i) Ex-parte Summons filed by the Plaintiff to order the Chief Registrar to sign the documents for re transfer of the property described in the Certificate of Title No. 6491 is dismissed;

(ii) No order as to costs.

Delivered at Suva this 14th Day of May 2015

C. KOTIGALAGE
JUDGE