IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 09 of 2017

BETWEEN:

TOTAL (FIJI) LIMITED a limited liability company having 
its registered office in Suva in the Republic of Fiji.
PLAINTIFF

AND:

CORNER POINT (FIJI) LIMITED a limited liability company 
having its registered office in Nadi in the Republic of Fiji.
DEFENDANT

BEFORE:
Hon. Mr Justice Vishwa Datt Sharma

COUNSEL:
Ms. Singh R. with Fatiaki S for the Plaintiff
Ms. Swamy A. for the Defendant

Date of Ruling:
Monday 07th February 2022 @ 9.30am

DECISION

[Summons for Leave to Appeal the Master’s Interlocutory Ruling and Summons for Leave to amend
 the first summons to include Enlargement of time for leave to Appeal the Interlocutory Ruling]

INTRODUCTION 
[1]	The Plaintiff has filed two (2) Summons before this Court on 04th May 2020 and 30th June 2020, respectively.
[2]	The First Summons filed on 04th May 2020 seeks Leave to Appeal an Interlocutory Ruling delivered by the Learned Master on 30th March 2020 granting Leave to the Defendant to amend its Statement of Defence and counter-claim accordingly.
[3]	This Summons is now seeking for the following Orders:-
i.	That leave be granted to the Plaintiff to appeal the Interlocutory Ruling of the Acting Master delivered on 30th March, 2020;
ii.	That the Defendant pay the costs of this application; 
iii.	That any such other Orders that this Honourable Court may deem just. 
[4]	The Second Summons filed on 30th June 2020 sought Leave to Amend the First Summons to include an Order for an enlargement/extension of time to seek Leave to Appeal the said Interlocutory Ruling delivered by the Learned Master on 30th March 2020 AND to file a supplementary Affidavit In support of the First Summons.
[5]	In Summary, the Plaintiff is seeking for-
(a)	Leave to Appeal the Interlocutory Ruling of 30th March 2020 with costs;
(b)	Leave and liberty to amend the Summons dated 04th May 2020 and
(c)	Leave to file and serve a Supplementary Affidavit in Support of the Summons of 04th May 2020.
[6]	The Defendant filed the Affidavit in Reply on 29th May 2020.
[7]	The Plaintiff filed its Affidavit in Response on 05th June 2020.
BACKGROUND OF THE CASE
[8]	The Plaintiff filed its claim against the Defendant on 17th January 2017 claiming the sum of $355,000.00 in damages for breach of contract. The Learned Master of the High Court on 30th March 2020 granted Leave to the Defendant to amend its Statement of Defence.
[9]	The initial Statement of Defence filed on 14th February 2017 did not include a counter-claim.
[10]	By way of the Amendment Application, the Defendant sought to include a Counter-claim that the Defendant suffered a monetary loss from the time the Caveat was lodged till the time the same was removed.  This is pleaded in the Amended Statement of Defence that in that the Defendant’s counter-claims against the Plaintiff that it has been forced to pay continued interest to its bankers for a period that the Caveat was lodged and removed being a total of $70,326.46 made up of interest in the sum of $879.08 per day. The sale by the Defendant of the subject land was delayed due to the Caveat.
[11]	The Plaintiff was a tenant of the Defendant on the land comprised in Crown Lease Number 17842 (“the said land”).  When the Defendant entered into a Sale and Purchase Agreement to sell the said land, the Plaintiff had lodged a Caveat being Caveat Number 838305 against the Lease of the said land.
[12]	The Defendant lodged a Removal of Caveat and subsequently receiving notice of such removal of Caveat, the Plaintiff issued proceedings in this Honourable Court and obtained ex-parte orders extending the Caveat over the said land.  In applying for an extension of the Caveat on an ex-parte basis, the Plaintiff had proffered an undertaking as to damages.
[13]	The Defendant later challenged the Caveat and had filed an extensive Affidavit in opposition on the 30th March 2017 to the application for extension.  The Plaintiff did not pursue any further extension of the Caveat and on the 12th of April 2017, the Plaintiff withdrew the application filed for extension of the Caveat.  The substantive matter remained afoot.
[14]	The essential issue then before this Honourable Court would be “whether the Plaintiff’s as tenants on the said land had any Caveatable interest and if not, damages would follow against the Plaintiff.”

DETERMINATION
[15]	There are three (3) issues before this Court now to deliberate and determine upon:-
(i)	Summons filed on 04th May 2020
Whether on Summons of 04th May 2020 the Plaintiff ought to be granted Leave to Appeal the Interlocutory Ruling of the Learned Master delivered on 30th March 2020?
(ii)	Summons filed on 30th June 2020
Whether the Plaintiff ought to be granted Leave and liberty to amend the Summons of 04th May 2020 as per the Draft annexed Amendment Summons?
(iii)	Whether the Plaintiff ought to be granted Leave to file and serve a Supplementary Affidavit?

AMENDMENT
[16]	The Defendant’s Summons filed on 18th July 2017 sought for an Order to amend the Statement of Defence and Counter-claim.
[17]	The Affidavit in Support of Shiu Ram, expressly deposes of paragraph 10 that the Defendant intends to amend its Statement of Defence to incorporate a Counter-claim directly flowing from the wrongful lodgement of the Caveat on the said land (Crown Lease No. 17842) owned by the Defendant.
[18]	It is important to note that the 2nd Summons filed on 30th June 2020 has nexus and hinges on the Summons seeking orders therein filed on 04th May 2020.
[19]	If this Court makes a determination on the Summons filed on 04th May 2020, than the Summons of 04th May 2020 has been filed out of time in terms of Order 59 Rule 11 of the High Court Rules 1988 then automatically Second Summons filed on 30th June 2020 would deem to fail.
[20]	The Amendment was accordingly granted by the Learned Master on 30th March 2020.
[21]	In terms of Order 20/5-8/6 of the White Book (1988 Supreme Court Practice) states that:
 “It is a guiding principle of cardinal importance on the questing of amendment that generally speaking, all such amendments ought to be made for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defects or error in any proceedings.” (see per Jenkins LJ in R. L. Baker Ltd v Medway Building & Supplies Ltd [1958] 1 W.L.P. 1216, p1231; [1958] 3 All E.R. 540, p.546)”.
[22]	In Ketterman v Hassel Property (1997) 1 A.C. 189 at 220 Lord Griffiths in the House of Lords said:
“Whether an amendment should be granted is a matter of the discretion for the trial judge and he should be guided in the exercise of his discretion by his assessment of where justice lies.  Many of diverse factors will bear upon his discretion.  I do not think it possible to enumerate them all or wise to attempt to do so.” 
[23]   Therefore it is clear from the above that the Court has a discretion in allowing an application for   amendment at any stage of the trial. 
[24]    The Defendant’s contention is that due to the Caveat being unlawfully lodged against the Title of the said land, the Defendant has suffered loss-
•	The amendment granted the inclusion of a counter-claim, is within the limitation period, as the complained act took place in January 2017.
•	The counter-claim arises out of the same set of facts as pleaded in the statement of claim and defence as filed.
•	The amendment will not result in any injustice to the Plaintiffs. The Plaintiff whilst obtaining ex-parte orders to extend the Caveat on the said land, proffered an undertaking as to damages.  In fact, setting aside the order of the Learned Master of the High Court, the amendment will cause substantial injustice to the Defendant.
•	There would be no purpose served for the Defendant to institute a separate action claiming damages against the actions of the Plaintiff.
•	There is no bad faith on the part of the Defendant nor has the Defendant breached any undertakings given to the Plaintiff or their Solicitors.
•	The Plaintiff’s raises objections as to the merits of the counter-claim, these matters will be dealt with at trial when this Honourable Court determines whether the Plaintiff has a caveatable interest in the said land.
[23]	The Defendant further submitted that the Summons filed on 04th May 2020 was out of time. The first summons was filed on the 04th of May 2020. The ruling granting leave to amend is an interlocutory ruling and pursuant to Order 59 Rule 11 of the High Court Rules an application to seek leave ought to be filed within 14 days from the date of the ruling.  Order 59 Rule 11 of the High Court Rules stipulate as follows:-
“…any application for leave to appeal an interlocutory order or judgment shall be made by summons with a supporting affidavit, filed and served within 14 days of the delivery of the order of judgment.” 
[24]	However, the Plaintiff’s contention is that O.59, r.11 of the High Court Rules 1988 is clear that an application for leave to appeal an Interlocutory ruling of the Learned Master must be filed and served within 14 days from the date of the delivery.  In this current case, the ruling was delivered on 30th March 2020.
[25]	The Plaintiff submitted that he opposed the Defendant’s Amendment application on the sole ground that the same was Mala Fide after the Defendant had obtained the agreement of the Plaintiff not to seek an extension of its Caveat.
[26]	Further, the Plaintiff’s contention is that according to the Honourable Chief Justice’s practice directions issued on 03rd and 20th April 2020, in respect to the Court Operations for the period 20th March 2020 to 17th April 2020.  The period between the said dates was not to be reckoned with in the computation of time prescribed by the High Court Rules for filing of any documents or doing an act.
[27]	The ruling delivered by the Learned Master on 30th March 2020 then fell within the “exempted period” of the Honourable Chief Justice’s practice directions of 20th March 2020 to 17th April 2020. This period of time should not be reckoned in the computation of time presented by O.59 r.11 of the High Court Rules 1988.
[28]	However, it is then correct that the time for the Plaintiff to Appeal the Interlocutory Ruling of 30th March 2020 started to run from the 18th April 2020. The 14 days requirement to Appeal in terms of O.59 r.11 of the High Court Rules 1988 then calculated from 30th March 2020 would expire on the 01st May 2020 and not on 04th May 2020 as submitted by the Plaintiff/Appellant.
[29]	Hence, the application seeking Leave to Appeal the Interlocutory Ruling of 30th March 2020 against the Amendment was filed on 04th of May 2020 and is therefore out of time and not filed in conformity with the provisions of Order 59 Rule 11 of the High Court Rules. Then, it is obvious that there is no Appeal on foot against the Ruling of 30th March 2020.
[30]	Therefore, bearing above in mind the above Rational, I find that the First Summons seeking for leave to Appeal the Ruling of 30th March 2020 filed on 04th of May 2020 is out of time and is accordingly dismissed.
[31]	The Second Summons filed on 30th June 2020 by the Plaintiff sought for an Order to Amend the First Summons of 04th May 2020, to include an order for enlargement/extension of time to seek Leave to Appeal the decision of the Learned Master of 30th March 2020 and file a Supplementary Affidavit.  
[32]	This Second Summons had nexus and hinged on the First Summons seeking Leave to Appeal the Interlocutory Ruling delivered on 30th March 2020.
[33]	Therefore, the Second Summons filed on 30th June 2020 is doomed to fail and is accordingly dismissed.
[34]	The issue or contention raised with regards to “Mala Fide” is a triable issue and would be dealt with in the trial and cannot be dealt with at this Interlocutory stage of the proceedings.
[35]	The impending substantive matter will take its normal cause of action once the procedural requirements to the substantive proceedings are completed.
Costs

[36]	Both Summons by the Plaintiff proceeded to full hearing on written and oral submissions together with Affidavits and responses filed by the parties to the proceedings.
[37]	It is only appropriate that I grant a summarily assessed costs of $750 to be paid to the Respondent/Defendant by the Appellant/Plaintiff.
ORDERS
i.	The Appellant’s/Plaintiff’s First Summons filed on 04th of May 2020 seeking Leave to Appeal the Interlocutory Ruling of the Learned Master of 30th March 2020 is dismissed. 
ii.	The Appellant’s/Plaintiff’s Second Summons filed on 30th June 2020 seeking to amend the First Summons of 04th of May 2020 and for Leave to Appeal the Interlocutory decision of 30th March 2020 and to file a supplementary affidavit is also dismissed.
iii.	The Appellant/Plaintiff to pay the Respondent/Defendant summarily assessed costs of $750.
iv.	The impending substantive matter to take its normal cause of action once the procedural proceedings are completed.
v.	The file together with all documents intact is remitted to the Learned Master to complete the procedural cause of action accordingly.
Dated   this   07th  Day   of  February,  2022.

VISHWA DATT SHARMA
JUDGE

cc: Sherani Solicitors, Suva
Messrs Patel & Sharma, Nadi