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Prasad v Lata [2021] FJHC 419; HBC70.2019 (21 October 2021)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO.: HBC 70 of 2019

BETWEEN : SANJAY RAJENDRA PRASAD and SHULING

HAN
PLAINTIFFS

AND : BRIJ LATA
DEFENDANT

APPEARANCES/REPRESENTATION
PLAINTIFFS : Mr. K. Singh [KS Law]

DEFENDANT : Mr. V. Kumar [Sunil Kumar Esquire]

RULING BY : Acting Master Ms Vandhana Lal

DELIVERED ON : 21 October 2021

INTERLOCUTORY RULING

Application

1. The Defendant seeks to have the Plaintiffs’ claim against her be struck out on following grounds:
   1. It discloses no reasonable cause of action;
   2. It is an abuse of court process;
   3. It is frivolous vexation and/ or scandalous;
      

The application is made pursuant to Order 18 Rule 18 of the High Court Rules.

Law

2. Order 18 rule 18 (1) gives the court a discretion to “strike out or amend any pleading or indorsement of any Writ in the action, or anything in any pleading or in the indorsement on following grounds:
   1. It discloses no reasonable cause of action or defence, as the case may be;
   2. It is scandalous, frivolous or vexations;
   3. It may prejudice, embarrass or delay the fair trial of the action;
   4. It is otherwise an abuse of process of the court,
      
3. Pursuant to subrule (2), “no evidence is admissible on an application under paragraph 1 (a)”.
   
4. In Lindon v Commonwealth of Australia (No. 2) [1996] HCA 14; 70 ALJR 541; 136 ALR 251 Kirby J outlined applicable principles for summary relief of striking out and these are:

1. It is a serious matter to deprive a person of access to the
courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26 r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1967) 112 CLR 125 at 128f; Dyson v Attorney-General [1910] UKLawRpKQB 203; (1911) 1 KB 410 at 418);

2. To secure such relief, the party seeking it must show that it
is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action (Munnings v Australian Government Solicitor [1994] HCA 65; (1994) 68 ALJR 169 at 171f) or is advancing a claim that is clearly frivolous or vexatious (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91);

3. An opinion of the Court that a case appears weak and such that
it is unlikely to succeed is not, alone, sufficient to warrant summary termination (Coe v The Commonwealth [1979] HCA 68; (1979) 53 ALJR 403; Wickstead v Browne (1992) 30 NSWLR 1 at 5-7). Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;

4. Summary relief of the kind provided for by O 26 r 18, for
absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer (Coe v The Commonwealth [1979] HCA 68; (1979) 53 ALJR 403 at 409). If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;

5. If, notwithstanding the defects of pleadings, it appears that a
party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading (Church of Scientology v Woodward [1982] HCA 78; (1980) 154 CLR 25 at 79). A question has arisen as to whether O 26 r 18 applies to part only of a pleading (Northern Land Council v The Commonwealth [1986] HCA 18; (1986) 161 CLR 1 at 8)......................................................; and

6. The guiding principle is, as stated in O26 r18(2), doing what
is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.

No Reasonable Cause of Action

5. In Bidesi v. Howard a Suva High Court Civil case number 513 of 1992 Jesuratnam J. held that:

“It is not enough for the defendant to show at this stage that the Plaintiff has a weak case. He should go further and show the Plaintiff has no case at all”.

6. The Supreme Court Practice Volume 1, 1993 Part 1 at paragraph 18/19/7 outlines the principle as follows:

“A reasonable cause of action means a cause of action with some chance of success when only the allegation in the pleadings is considered (per Lord Pearson in Drummond – Jackson v. British Medical Association [1970]1W.L.R.688”.

It further goes on to state that;

“so long as the Statement of Claim or the particulars (Darey v. Bentinck [1892] UKLawRpKQB 216; [1893] 1 QB. 185) disclose some cause of action, or raise some question to fit to be decided by a Judge or a Jury the mere fact that the case is weak, and not likely to succeed is no ground for striking it out (Moure v. Lawson (1915) 31 T.L.R. 418, C.A.; Wenlock v. Moloney [1965] 1 W.L.R. 1238).

Frivolous; Vexatious and Scandalous

7. Paragraph 18/19/15 of The Supreme Court Practice Volume 1, 1993 Part 1 states:

“By these words are meant case which are obviously frivolous or vexatious or obviously unsustainable, per Lindley L.J. in Alt – Gen of Dunchy of Lancaster v. L. & N.W. Ry. [1892] 3ch. 274 p. 277]”.

Abuse of Process of the Court

8. Pathik J, in Goldstein v. Narayan a Suva High Court Civil Action No. HBC 0413 of 2001 considered following passage from Halsbury’s Laws of England 4^th Edition Volume 37 at paragraph 434 to be pertinent when considering an application for striking out claim on grounds of abuse of process:

“An abuse of the process of the court arises where its process is used, not in good faith and for proper purposes, but as a means of vexation or oppression or for ulterior purposes, or more simply, where the process is misused. In such a case, even if the pleading or indorsement does not offend any of the other specified grounds for striking out, the facts may show that it constitutes an abuse of the process of the court, and on this ground the court may be justified in striking out the whole pleading or indorsement or any offending part of it. Even where a party strictly complies with the literal terms of the rules of court, yet if he acts with an ulterior motive to the prejudice of the opposite party, he may be guilty of abuse of process, and where subsequent events render what was originally a maintainable action one which becomes inevitably doomed to failure, the action may be dismissed as an abuse of the process of the court.”

9. Paragraph 18/19/17 in The Supreme Court Practice Volume 1, 1993 Part 1 reads:

“This term connotes that the process of the Court must be used bona fide and properly and must not be abused. The Court will prevent the improper use of its machinery, and will, in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation”.

The Plaintiffs claim

10. The Plaintiffs’ claim against the Defendant is for renewal and extension of a Sale and Purchase Agreement dated 05^th September, 2017 for a period of 03 months.
    
11. The 05^th September, 2017 agreement was between the First Plaintiff and the Defendant.
    

The Plaintiffs claim that it was agreed between the parties for the Plaintiffs to construct the property to increase its value to $400,000.00 being the consideration sum and thereafter apply for loan.

The Plaintiffs claim to have paid $20,000.00 as deposit and got the Defendant’s authority to commence with renovation.

They claim to have invested more than $100,000.00 in renovation the property.

Prior to completion of the renovation work the First Plaintiff had to undergo surgery and hence not complete the renovation.

As a result, the Sales and Purchase agreement expired.

This led to the parties entering into another agreement dated 10^th September, 2018. This time the agreement was entered between both the Plaintiffs and the Defendant. The said agreement had same terms and condition as of the 2017 agreement.

However, upon lodging the consent to transfer form with Lands Department, the Second Plaintiff was informed that the application was rejected as she was a Chinese national.

Hence the 2018 agreement was terminated as it was null and void ab initio.

The Plaintiffs requested the Defendant to enter into an amended agreement which the Defendant has failed to do.

Determination

12. The First Plaintiff could not fulfil his obligation under the 2017 agreement hence both Plaintiffs entered into the 2018 agreement thus mutually terminating the 2017 agreement.
    
13. I do not find that the Plaintiffs have any cause of action against the Defendant as far as the 2017 agreement is concerned.
    
14. There are no claims concerning the 2018 agreement or any claim for compensation for monies invested on the property.
    
15. For reasons aforementioned, I find there to be no cause of action against the Defendant and that the action against the Defendant to be frivolous and an abuse of the court process.
    

Final Orders

16. The Writ of Summon and Statement of Claim filed on 14^th March, 2019 against the Defendant is wholly struck out.
    
17. The Plaintiffs are ordered to pay Defendant cost summarily assessed at $1,000. Said cost is to be paid with 21 days from delivering of this ruling.
    

......................................
Vandhana Lal [Ms]
Acting Master
At Suva.

21 October 2021

TO:

1. Suva High Court Civil File No. HBC 70 of 2019;
2. KS Law, Solicitors for the Plaintiff;
3. Sunil Kumar Esquire, Solicitors for the First Defendant.