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Ragg v Yamagata [2017] FJHC 808; HBC371.2011 (18 October 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 371 of 2011

BETWEEN: LUKE RAGG of Suva, Real Estate Agent.

PLAINTIFF

AND: YUMIKO YAMAGATA as the Trustee of the Yamagata Children’s Trust of 28957 Cliffside Drive, Malibu, CA 90265, United States of America.
DEFENDANT

BEFORE: Master Vishwa Datt Sharma

COUNSEL: Ms. Devan with Ms. Shameem - for the Plaintiff

Mr. Ronald Singh - for the Defendant

Date of Ruling: 18^th October, 2017

RULING

[Summons for Specific Discovery by the Plaintiff pursuant to
Order 24 Rule 12, Order 24 Rule 13 (1) and Order 18
Rule 11 (3) of the High Court Rules and under
the inherent jurisdiction of this Court]

1. APPLICATION
   

1. The Plaintiff filed this Summons seeking Orders that the Defendant provides copies of the following documents being:
   • (i) executed sale and purchase agreement for the sale of Kanacea Island, or the amount and value of shares sold in relation to the company or legal entity previously owning

Kanacea Island as its asset;

(ii) executed sale and purchase agreement for the sale of Adavaci Island or the amount and value of shares sold in relation to the company or legal entity previously owning Adavaci Island as its asset;
(iii) executed sale and purchase Agreement for the sale of Kaibu/Kaimbu Island or the amount and value of shares sold in relation to the company or legal entity previously owning Kaibu/Kaimbu Island as its asset; and
(iv) executed sale and purchase agreement for the sale of Vatuvara Island or the amount and value of shares sold in relation to the company or legal entity previously owning Vatuvara Island as its asset.

2. In the alternative, the Defendant provide further and better particulars of paragraph 7 of its Statement of Defence dated 13 January 2012 and by way of further discovery disclose to the Plaintiff correct prices of shares sold for each of the companies or entities owning islands described as Kanacea Island, Adavaci Island, Kaibu/Kamibu Island and Vatuvara Island.
3. Any other relief and/or Order as this Honourable Court deems just and expedient.
4. Cost of this application be paid by the Defendant.
5. Upon the grounds contained in the Affidavit of Luke Ragg filed in support herein.
6. This Application is made pursuant to Order 24 Rule 12, Order 24 Rule 13 (1) and Order 18 Rule 11 (3) of the High Court Rules, 1988 and the inherent jurisdiction of this Honourable Court.

2. LAW AND PRACTICE

7. Order 24 of the High Court Rules, 1988 deals with “Discovery & Inspection of Documents” whilst Order 18 deals with “Pleadings”. Order 24 Rule 12, 13 (1) and Order 18 Rule 11 (3) provides as follows-

Order for production to Court (O.24, r.12)

12. At any stage of the proceedings in any cause or matter the Court may, subject to rule 13(1), order any party to produce to the Court any document in his possession, custody or power relating to any matter in question in the cause or matter and the Court may deal with the document when produced in such manner as it thinks fit.

Production to be ordered only if necessary, etc. (O.24, r.13)

13.-(1) No order for the production of any documents for inspection or to the Court shall be made under any of the foregoing rules unless the Court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.

Particulars of pleading (O.18, r.11)

(3) The Court may order a party to serve on any other party particulars of any claim, defence or other matter stated in his pleading, or in any affidavit of his ordered to stand as a pleading, or a statement of the nature of the case on which he relies, and the order may be made on such terms as the Court thinks just.

8. The principles on grant of further and better particulars are set out in the judgment of Byrne J in In re Estate of Harry Janson Ho [1993] FJHC 43: His Lordship held:

"The general principle governing the delivery of further particulars of any pleading is that these will be ordered by the Court if it considered desirable to elucidate the issues to be tried and prevent "surprise" at the trial. No hard-and-fast line can be laid down as to the degree of particularity which is required of a pleader and which an opponent may demand of him when formulating either a claim or defence.

It is however, essential that each party should give his opponent a fair outline of the case which will be raised against him at the hearing, and for this purpose he must set out in the body of his pleading all particulars which are necessary to enable his opponent properly to prepare his case for trial.

Particulars need be given only of facts and not of evidence but as much certainty or particularity will be directed in a particular case as is reasonable having regard to the circumstances and the nature of the acts alleged – see Ratcliffe v. Evans [1892] UKLawRpKQB 131; (1892) 2 Q.B. 524, at 532. In Bullen and Leake and Jacob's Precedents of Pleadings 12th Edition the authors remark at p.113 that the tendency of modern practice is to give full particulars as may be necessary of the matters pleaded, and to respond to a request for further and better particulars of pleading more fully than previously. However, the law has always held against a party to litigation attempting to obtain information by way of particulars which can only be obtained by interrogatories – see Lister & Company Limited v Thompson (1891) 7 T.L.R. p.107. The practical reason for this rule of practice is that whereas when interrogatories are delivered, the answers must be an oath and various objections to provide the answers such a privilege, oppressiveness and fishing and may be taken by the other party; the same is not true of further particulars. In addition, because answers to interrogatories must be sworn if, when the matter comes to trial the person interrogated when giving evidence appears to resile from or vary his answers to interrogatories, an attack may be made on his credibility.

100. BACKGROUND FACTS

9. According to the Plaintiff, by an agreement in writing dated 20^th February 2009, the defendant engaged the plaintiff to sell three properties commonly known as Kanacea Island in the Central Lau group in Fiji, Advaci Island and Kaimbu Island both in the Northern Lau group in Fiji for the price of USD 6 million, USD 26 million and USD 22 million respectively.
10. It was a term and condition of the said agreement referred to in paragraph 3 hereof that the Defendant would pay to the Plaintiff commission at the rate of 5 per cent based upon the gross selling price and value added tax on the commission.
11. On the 12 day of March 2002 the Defendant entered into oral agreement with the plaintiff and engaged the Plaintiff to sell another property commonly known as Vatuvara Island in the Lau Group in Fiji for the price of USD 9.5 million.
12. It was a term and condition of the said agreement referred to in paragraph 5 hereof that the defendant would pay to the plaintiff commission at the rate of 2.5 per cent based upon the gross selling price and value added tax on the commission.
    13. The Plaintiff found a prospective purchaser for Kaimbu and Vatuvara and registered the prospective purchaser's identity with the defendant in accordance with the agreements abovementioned.
    14. The Defendant ignored the Plaintiff, directly dealt with the prospective
        purchaser one James Jannard and sold Kaimbu and Vatuvara to James Jannard and the defendant failed to pay to the plaintiff the commission in respect of such sale.
15. On 15^th December, 2011 the Plaintiff filed and commenced proceedings against the Defendant claiming commission of USD$725,000 for the sale of Kaimbu Island and Vatuvura Island to Mr James Janard.
16. On 27^th January, 2012 the Defendant filed a Statement of Defence denying the allegations.
17. According to the Defendant the Plaintiff alleges that he was contracted to sell Four (4) islands-
    1. He entered into an oral contract with Ms Yamagata in 2002 for sale of Vatuvara Island ("Alleged Oral Agreement").
    2. As for the remaining 3 islands (Kanacea, Advaci and Kaimbu), the Plaintiff claims that a written agreement was signed in 2009 ("2009 Agreement").
18. The Plaintiff seeks commission for the sale of 2 islands (Kaimbu and Vatuvara) in his Claim on the basis he introduced Mr Janard. The Defendant denies that the Islands were sold to Mr Janard.
19. Ms Yamagata also denies that any oral Agreement was entered in 2002 as pleaded and in any event pleads that:
    1. any action to enforce a 2002 agreement is time barred under the
       Limitation Act (Cap 35) and/or
    2. since it's not in writing, void under the Indemnity, Guarantee and
       Bailment Act (Cap 232) as it is a dealing under the Act, and/or
    100. it runs foul of the Real Estate Agents Act 2006 which requires such
         agreements to be in writing.
20. The 2009 Agreement was terminated and was of no effect when the sale occurred. The Non-exclusive Agreement between the Plaintiff and the Defendant is not duly stamped either.
21. The Plaintiff filed his Reply on 23 February 2012 and alleges that the 2009 Agreement is valid and Yumiko "continued to deal" with (James) Jannard through his proxy - Dwight Manley. No evidence has been adduced to prove this claim.
22. It is clear from the pleadings, affidavits and answers to interrogatories that Plaintiff’s Claim and the specific discovery Application is speculative and an abuse of process

4. ANALYSIS and DETERMINATION

23. The issue for this Court to determine is ‘Whether the Plaintiff should provide the Defendant with specific discovery of Executed Sale & Purchase Agreements together with the amount and value of shares sold in relation to the following Islands?’-
    • (i) Kanacea Island;
    • (ii) Advaci Island;
    • (iii) Kaibu/Kaimbu Island; and
    • (iv) Vatuvara Island.
24. The Plaintiff in his Statement of Claim filed on 15^th December, 2011 claims that by Agreement dated 20^th February, 2009, the Defendant engaged the Plaintiff to sell the three (3) properties Kanacea Island, Advaci Island and Kaimbu Island. On 12^th March, 2002, the Defendant entered into an oral agreement with the Plaintiff and engaged the Plaintiff to sell another property known as Vatuvara Island and will be paid the commissions accordingly.
25. The Plaintiff at paragraphs 7 and 8 of his Statement of Claim states that it was him who found a prospective purchaser for Kaimbu and Vatuvara Islands but the Defendant ignored the Plaintiff, directly dealt with the prospective purchaser James Jannard and sold Kaimbu and Vatuvara to James Jannard and the Defendant has failed to pay to the Plaintiff the commission in respect of such sale.
26. The Defendant in paragraphs 3 and 4 of his Statement of Defence to the Plaintiff’s Claim admitted but stated further that the Non-Exclusive Agreement expired on 20^th August, 2009 and was at all material times terminated and cancelled and of no effect. Further, commission would only paid to the Plaintiff in the event the Plaintiff would secure a successful buyer in accordance with the Non- Exclusive Agreement entered into between the parties on 20^th February, 2009.
27. Reference is made to the annexure marked “LR 32” within Luke Ragg’s Affidavit in Support filed on 16^th June, 2016. The Plaintiff’s Solicitors wrote a correspondence to the Defendant’s Solicitors dated 23^rd May, 2016 which states as follows-

“We have considered the Interrogatories exchanged...and find some interesting issues.... The conclusions we reach will have a bearing on our decision whether to seek leave to file an amended statement of claim at all.

“In the meantime relevant search on the sale and purchase of four properties in Fiji previously owned by your client indicates that it is now necessary for us to seek your cooperation and request that you kindly disclose to us the price for which she transferred the following properties to the new owner;

(i) Kaimbu Island, (ii) Vatuvara Island, (iii) Advaci Island , and (iv) Kanacea Island.”

“It is already established that the Vendor of the above properties is your client. We are of course aware that one of your client’s key defence is lack of a commission contract with our client. No doubt you will be arguing this point in Court at the appropriate time.’

“However, for the moment, all we seek is disclosure of the sale price of the said properties.”

28. The Defendant’s Solicitors in reply to above at annexure marked “LR 31” stated as follows-

‘We have obtained instructions from our client and decline your request for the disclosure of the Agreement on the basis that the documents are pertaining to Agreement reached between the Defendant and a party not party to the proceedings. We also note that you request Agreement on 4 properties when the Plaintiff is claiming for the purported commission on 2 properties only. We understand this request is irrelevant in light of the current pleadings and we note that our 1 December, 2015 letter requesting further and better particulars has been responded to. We ask that you please provide us with further and better particulars without further delay.” (Underline mine for deliberation).

30. After a careful reading of the contents of the Annexures “LR-31 and LR-32”, it reveals that the Defendant was the owner/proprietor of the four (4) properties; Kaimbu, Vatuvura, Advaci and Kanacea Islands and that all have been sold to a new owner. The owner has not been identified by the Plaintiff and the Defendant has repeatedly denied in her written submissions at paragraph 8 that the Islands were sold to Mr Jannard.

Further, the Defendant’s Counsel obtained instructions from his client/Defendant who declined the request for the disclosures of the Agreement(s) sought.

Therefore, it can be concluded from the two Annexures ‘LR-31 and LR-31” that the Agreement(s) for the sale of the Islands do exist.

However, the Question which arises here is whether the Plaintiff is entitled to the particulars and the Agreement(s) for the sale of these Islands?

31. According to the Defence Counsel the disclosure of the Agreement on the basis that the documents are pertaining to Agreement reached between the Defendant and a third party. Further, the request sought by the Plaintiff on the 4 Agreements is irrelevant considering that the Plaintiff’s claim for commission is based on 2 properties only. The Defence also confirmed that their 01^st December, 2015 letter requesting for further and better particulars has been responded to by the Plaintiff.
32. At this point I make reference to the case of the Federal Court of Australia in Expectation Pty Ltd v PRD Realty Pty Ltd [1999] FCA 1207 citing Martin and the Miles Martin Pen Coy Ld v Scrib Ld (1950) 67 RPC 127 (CA), held:

“In my judgment this contention of Mr Aldous makes the right of a party to discovery in an action far too wide. The object of discovery is to assist the proper determination of the relevant issues between the parties. It is not open to a Defendant to enlarge the area of discovery indefinitely by making irrelevant allegations. The Court must be satisfied that the documents of which discovery is sought are relevant to the matters properly in issue in the action and are not merely made relevant by the inclusion by a Defendant in his pleadings of irrelevant matter which , even if substantiated, could not affect the result of the action....”

33. Bearing in mind the above, I refer myself back to the Plaintiff’s Statement of Claim together with the Plaintiff’s Application seeking Documents and information in respect of all the 4 islands including Kanacea Island and Advaci Island.
34. I note at paragraphs 8 and 9 of the Claim, the Plaintiff is only seeking commission together with interest and costs from the sale of two (2) Islands Kaimbu and Vatuvura only and not from the sale of the remaining Two (2) Islands Kanacea and Advaci. The amount of commission sought from the sale of Kaimbu Island is 5% which is $USD 350,000 and from Vatuvura Island sale 2.5% commission of $USD 375,000.

The Question which arises in mind is ‘Why is the Plaintiff now seeking documents and information regarding all the 4 Islands, including Kanacea and Advaci?”

According to the Defence Counsel, this will allow the Plaintiff to amend its Statement of Claim.

35. The object of discovery is to assist the proper determination of the relevant issues between the parties. It is not open to Plaintiff to enlarge the area of discovery indefinitely by making irrelevant allegations. The Court must be satisfied that the documents of which discovery is sought are relevant to the matters properly in issue in the action contained within the Plaintiff’s Pleadings.
36. However, the Plaintiff filed and commenced its proceedings against the Defendant on 15^th December, 2011 and made an application by Summons for Specific Discovery on 16^th June, 2016, some four and a half years later. The Plaintiff’s such a delay of 4 and ½ years was not explained to this Court and in the circumstances this Court holds that it is an inexcusable delay.

It is also important to bring to light that this Court on its own Motion issued a Notice pursuant to Order 25 Rule 9 asking the Plaintiff to show cause on the Delay in not proceeding with this matter. The Court accepted the explanation given to Court then and allowed the matter to proceed with the matter. The reason for my bringing this up was to show that prior delays in proceedings have taken place and again the current application for Further and Better Particulars sought after 4 and ½ years.

37. In light of above I make reference to the Supreme Court Practice, 1999 at page 337 (18/12/56) under the heading "Particulars Ordered by Court" it is stated that:
    

"The question on whether and what particulars should be ordered is one of discretion. The Court may refuse to order particulars of pleading to which a party would otherwise be entitled, where there has been inexcusable delay in making the application or the application is made at a late stage e.g. when there might be a substantial risk that a fixed date of trial would have to be vacated (Astrovlanis Compania Naviera SA v Linard [1972] 2 QB 611; [1972] 2 All ER 647, CA). (Underline mine for emphasis).

38. It can be ascertained from the Plaintiff’s own Pleadings within the Statement of Claim that the claim does not make the sale of Kanacea and Advaci Islands material to its Claim and the Plaintiff for the present time is bound by its Pleadings.
39. A fundamental prerequisite to discovery of specific document is that an applicant, (Plaintiff), must establish a prima-facie case that the specific documents do in fact exist or have existed, and are relevant and they were in ‘possession, custody or power of the opposing party (The Defendant).

The Plaintiff is yet to establish the fact whether the documents sought do exist with the Defendant. The Defendant’s contention is that the Islands were sold to a party who is not a party to this proceeding. If that is the case, then should the Plaintiff be still entitled to the Agreement(s) and particulars as sought by him? The answer would be in the negative.

40. An applicant will need to be heedful of accumulated case law material that Courts will not allow the discovery process to be used towards assisting a party upon a fishing expedition such as to fish for witnesses or a new case (Martin and Miles Martin Pen Co. Ltd v Scrib Ltd [1950] 67 RPC 1-7 as cited in Singh v Minjesk), Calvet -v- Tomkies [1963] 3 All ER 610. Nor will discovery be ordered in respect of documents which are not related to or may not affect the actual outcome of the action: Martin and Miles Martin Pen Co. Ltd. -v- Scrib Ltd. [1950] 67 RPC 1-7). Furthermore, discovery will also be prohibited if it is for a general purpose of enabling a party.
41. It is also important to note herein that the Agreement dated 29^th February, 2009 entered between the Plaintiff and the Defendant to sell three (3) properties Kanacea Island, Advaci Island and Kaimbu Island and an oral agreement on 12^th March, 2002 for the sale of Vatuvara Island. The sale was on the condition that commissions would be paid accordingly.
42. It is clear to Court that the sale of Vatuvara Island did not have any written Agreement rather entered into in writing and that commission would be paid once the sale has taken place. However, it was not a condition that the Plaintiff will find a prospective purchaser for Kaimbu and Vatuvara Island and register with the Defendant and then be paid commission.

What is unclear is who sold Kaimbu and Vatuvara Island? Was it the Plaintiff or that the Defendant directly dealt with the prospective purchaser? It is denied by the Defendant repeatedly that the Islands were sold to Mr James Jannard as alleged by the Plaintiff.

43. The Defendant in his written submissions at paragraph 33(d) reveals that Mr James Jannard was introduced by his father who owned ‘Ragg & Associates Fiji Limited” (Ragg’s affidavit at paragraph 10 & 11 refers).
44. The Plaintiff’s Statement of Claim at paragraph 8 confirms that the two (2) Islands, Kaimbu and Vatuvara were sold to the prospective purchaser Mr James Jannard. Kaimbu Island was sold for $USD 7 million with the commission of $USD 350,000 and Vatuvara Island sold for $USD 15 million with the commission of $375,000. These facts by the Plaintiff establi shes that the Plaintiff is already aware of the full particulars then why is the Plaintiff again seeking further and better particulars?
45. The Plaintiff’s pleadings in terms of the Statement of Claim seeks commission together with interest for the sale of two (2) Islands only Kaimbu and Vatuvara and not the remaining two (2) Islands Kanacea and Advaci Islands, do not make the sale of these two Islands material to his claim and therefore the Plaintiff is bound by his pleadings.
46. I reiterate paragraph 36 of this Ruling and hold that the Delay in bringing the application for Further and Better Particulars after a period of 4 and ½ years and failing to explain to the Court satisfactorily of such delay tantamount to an inexcusable Delay.
47. The law governing Further and Better particulars gives Court the discretionary powers. The Court may refuse to order particulars of pleading to which a party would otherwise be entitled, where there has been inexcusable delay in making the application which has become obvious herein.
48. Further, the fact that the Plaintiff has full particulars of the two (2) Islands Kaimbu and Vatuvara, there is no need for this Court to make any orders for Further and Better particulars.
49. In respect of the remaining two (2) Islands Kanacea and Advaci are not in issue within the Plaintiff’s pleadings and therefore this Court cannot make any orders for Further and Better particulars as sought by the Plaintiff.
50. This Court took two (2) consecutive days to complete the hearing. The reason being that Counsels on both sides took cautious steps in deliberating their respective comprehensive submissions. Since this Court has decided not to make any orders for Further and Better particulars as sought for by the Plaintiff, it is only appropriate that I order substantial costs against the Plaintiff which is summarily assessed at $1,500 accordingly.
51. In Conclusion, I make the following orders -
    

FINAL ORDERS

(i) There will be no orders made in respect to the orders sought by the Plaintiff’s Summons for Further and Better particulars at the discretion of this Court.
(ii) The Plaintiff’s Summons for Specific Discovery filed 16^th June, 2016 fails and is accordingly Dismissed.
(iii) The Plaintiff is ordered to pay the Defendant Costs summarily assessed at $1,500 and to be paid within 14 days timeframe.
(iv) Matter will stand adjourned for further Directions on 16^th November, 2017 at 9am.
(v) Orders accordingly.

Dated at Suva this 18^th day of October, 2017

.................................................................
MR VISHWA DATT SHARMA

Master of High Court, Suva

cc: Shameem Law, Pacific Harbour,Suva
Munro Leys Solicitors, Suva