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High Court of Fiji |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
[CIVIL JURISDICTION]
Civil Action No. HBC 184 of 2023
BETWEEN
| | KING ANWAR HUSSAIN of Lot 12, Drift Road, Level 3, Office 4. |
| | PLAINTIFF |
| | |
| | AND |
| | CO OPTED COMMITTEE OF THE ASSOCIATION OF THE FANTASY ISLAND LESSES . |
| | 1ST DEFENDANT AND |
| | ABBAS ALI, Managing Director of Juxta Beach Fiji PTE Limited, Fantasy Island, Nadi, Businessman. |
| | 2ND DEFENDANT AND |
| | HOME FINANCE COMPANY PTE LTD TRADING AS HFC BANK |
| | 3RD DEFENDANT |
BEFORE : Master P. Prasad
Counsels : Mr. K. Chand & Ms. S. Kumar for Plaintiff
Mr. A.K. Narayan (Snr) for 2nd Defendant
Date of Hearing : 1 April 2025.
Date of Decision : 31 July 2025
RULING
(Strike out)
The Summons also seeks an order for costs of the application to be paid by the Plaintiff and/or his solicitors personally on a solicitor/client full indemnity basis.
Civil Action No. HBC 85 of 2022
““without prejudice”
Greetings Sir
I have spoken to my client and he has confirmed that this matter can been withdrawn with an undertaking that no matters following from the same issue will be brought forward in court again. Also if parties can bare there own cost. This withdrawal will be limited to the action number 85 of 22 as your client and my client have a lot of issues on going before the High Court.
I look forward to you response in this matter
Thanking you
Jadhav Prakashan”
25 August 2022 11:31 am (e-mail from 2nd defendant’s employee to plaintiff’s and 3rd defendant’s counsel):
“Subject: (A78) – King Anwar Hussein v Co opted Committee of the Association of the Fantasy Island Lesses & Ors LTKA HC Civil Action No. 85 of 2022
Good morning Mr Prakashan and Mr Lajendra,
We refer to Mr Narayan’s discussion with both Counsels in respect of the captioned matter.
Having taken instructions from our client, we have drawn up the Terms of Settlement. Attached is a copy. This will bring an end of the proceedings as requested by Mr Prakashan.
We request if you both could confirm by lunch time that the Terms of Settlement is in order so that we can cease with preparation for the hearing tomorrow.
Once confirmed we will have the copies printed and brought to Court for signing by Mr Prakashan and we suggest Mr Lajendra, if you can instruct your agents to sign on your firm’s behalf.
Your prompt responses will be appreciated.
Kind regards
Elizabeth Saverio
(Chief Legal Executive”
25 August 2022 11:37 am (e-mail from 2nd defendant’s counsel to plaintiff’s and 3rd defendant’s counsel):
“Hi all
Can I suggest Mr Prakashan print, execute and deliver to our office today in quadruplicate and Mr Lajendra’s agent can sign tomorrow in Court before handing to the Judge for order in terms.
Regards
Adish K Narayan”
25 August 2022 12:03 pm (e-mail from 3rd defendant’s counsel):
“Dear Mr Narayan
Thank you for our telephone discussion and the subsequent email attaching the draft Terms of Settlement.
We are taking instructions and will revert soon. Thanks
Nilesh Lajendra”
25 August 2022 2:19 pm (e-mail from plaintiff’s counsel to counsel’s for 2nd and 3rd defendant’s):
“Greetings
As discussed your terms of settlement covers matters which covers all lot of issues can I simply the terms by stating that the what ever issues pleaded in our current case will not be brought to court again and if brought this terms of settlement will act as a bar to the pleadings.
As I do not want to agree to something that I am not instructed in. So if I can amend the settlement and submit it to you
Thanking
Jadhav Prakashan”
25 August 2022 2.39 pm (e-mail from 2nd defendant’s employee to plaintiff’s and 3rd defendant’s counsel):
“Good afternoon Mr Prakashan
Your email below was referred to Mr Narayan and he has advised that the Terms of Settlement forwarded expresses in professional terms what you have said.
Please sign and deliver the same to us this afternoon failing which we will proceed with the hearing tomorrow.
Kind regards
Elizabeth Saverio
(Chief Legal Executive)”
25 August 2022 4:03 pm (e-mail from plaintiff’s counsel to 2nd and 3rd defendant’s counsel):
“please find attached the executed copy”
25 August 2022 11.31 am (e-mail from 2nd defendant’s counsel to plaintiff’s and 3rd defendant’s counsel):
“Thank you Mr Prakashan,
Both Mr Lajendra’s agent and we will attend to signing originals tomorrow at the High Court.
Regards
Adish K Narayan”
“1. THAT the Plaintiff withdraws the action herein.
2. THAT the orders (including the injunction) granted on an ex-parte application by the Plaintiff on 8th April 2022, as subsequently extended, is unconditionally discharged.
3. THAT the Plaintiff undertakes that he will not bring any further or future action, suit or proceedings in any form or manner which directly or indirectly seeks to claim any relief or remedy based on the allegations or the subject matters (factual or otherwise) pleaded in his Statement of Claim against any party to the present action or any member, officials, executive, servant, agent contractor of the unincorporated association known as The Association of Fantasy Island Lessees.
4. THAT this Order may be pleaded in bar to any action, suit or proceedings now pending or hereafter commenced by the Plaintiff in respect of the matters in 3 above against any party to this action or any member, officials, executive, servant, agent and contractor of the unincorporated association known as The Association of Fantasy Island Lessees.
5. THAT the action herein is to be struck out/dismissed with no order as to costs.
SEALED at Lautoka this 12th day of September, 2022.”
Civil action no. HBC 302 and 303 of 2022
“15. I agree with the submissions of Mr. Narayan that a lawyer representing a client has general apparent authority to settle claims without the express authority of the client (Mathew v Munster [1887] UKLawRpKQB 189; (1888) 20 QBD 141; Tagra Spare Parts & Carwash (Fiji) Ltd v Khan [2017] FJHC 51; HBC09.2017 (1 February 2017). Any such consent judgment thus binds the client
16. If Hussein really asserts that Prakashan & Associates did enter into the Terms of Settlement without his instructions, then he must take action against his lawyers.
17. In addition to the above, we are here dealing with a Terms of Settlement which has been endorsed by the Court and which has become a Consent Order.
...
24. I also refuse to accept the allegation that Ali’s solicitors had threatened Hussein’s solicitors which then led to the Terms of Settlement. It is hard to see this as a situation where a lawyer is dominating the will of another lawyer. After all, as a fiduciary, it is a duty of every lawyer to look out for their client’s best interests.”
Plaintiff’s current Writ of Summons and Statement of Claim
Order 18 Rule 18
“18 (1)The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that –
(a) it discloses no reasonable case of action or defence, as the case may be;
(b) it is scandalous, frivolous or vexatious;
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the Court,
and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.”
“Striking out or amendment—The rule also empowers the Court to amend any pleading or indorsement or any matter therein. If a statement of claim does not disclose a cause of action relied on, an opportunity to amend may be given, though the formulation of the amendment is not before the Court (CBS Songs Ltd v. Amstrad [1987] R.P.C. 417 and [1987] R.P.C. 429). But unless there is reason to suppose that the case can be improved by amendment, leave will not be given (Hubbuck v. Wilkinson [1898] UKLawRpKQB 176; [1899] 1 Q.B. 86, p.94, C.A.). Where the statement of claim presented discloses no cause of action because some material averment has been omitted, the Court, while striking out the pleading, will not dismiss the action, but give the plaintiff leave to amend (see “Amendment,” para. 18/12/22), unless the Court is satisfied that no amendment will cure the defect (Republic of Peru v. Peruvian Guano Co. [1887] UKLawRpCh 186; (1887) 36 Ch.D. 489).”
“Exercise of powers under this rule—It is only in plain and obvious cases that recourse 18/19/7 should be had to the summary process under this rule, per Lindley M.R. in Hubbuck v. Wilkinson [1898] UKLawRpKQB 176; [1899] 1 Q.B. 86, p.91 (Mayor, etc., of the City of London v. Horner (1914) 111 L.T. 512, C.A.). See also Kemsley v. Foot [1951] 2 K.B. 34; [1951] 1 All E.R. 331, C.A., affirmed [1952] A.C. 345, H.L. It cannot be exercised by a minute and protracted examination of the documents and facts of the case, in order to see whether the plaintiff really has a cause of action (Wenlock v. Moloney [1965] 1 W.L.R. 1238; [1965] 2 All E.R. 871, C.A.).”
“Principles—A reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleading are considered (per Lord Pearson in Drummond-Jackson v. British Medical Association [1970] 1 W.L.R. 688; [1970] 1 All E.R. 1094, C.A.). So long as the statement of claim or the particulars (Davey v. Bentinck [1892] UKLawRpKQB 216; [1893] 1 Q.B. 185) disclose some cause of action, or raise some question 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 (Moore v. Lawson (1915) 31 T.L.R. 418, C.A.; Wenlock v. Moloney [1965] 1 W.L.R. 1238; [1965] 2 All E.R. 871, C.A.);...”
“The practice in Fiji of preemptively applying to strike out a claim is wrong and must cease. Counsels ability to overlook the purpose of this summary procedure is astounding. The expense to the administration of justice, let alone clients, is a shameful waste of resources....
Apart from truly exceptional cases the remedy should not be granted. The approach to such applications is to assume that the factual
basis on which the allegations contained in the pleadings are raised will be provided at trial. If a legal issue can be raised on
the facts as pleaded then the courts will not strike out a pleading and will certainly not do so upon a contention that the facts
cannot be proved unless the situation is so strong that judicial notice can be taken of the falsity of such a factual contention....
The rule of law requires the existence of courts for the determination of disputes and that litigants have the right to use the court for that purpose. The courts will be alert to their processes being used in a way that results in an oppression or injustice that would bring the administration of justice into disrepute. However, the court cannot and must not deny proper access to justice by the glib use of a summary procedure to pre-emptorily strike out an action no matter how weak or poorly pleaded the Statement of Claim supporting the case is....
It is not for the court in deciding whether there is a reasonable cause of action to go into the details of the issues that are raised by the parties. This summary jurisdiction of the court was never intended to be exercised by a detailed examination of the facts of the case at a mini hearing to see whether the plaintiff really has a good cause of action merely a sufficient one. This is not the time for an assessment of the strengths of either case. That task is reserved for trial. The simple fact that these parties engaged in argument by opinion over statutory interpretation must bring into existence a mere cause of action raising some questions fit to be decided by a judge.”
2nd Defendant’s position
Plaintiff’s position
“[36] In my view, in Sharma v Caldwell (supra), the Magistrate’s consent was a condition precedent to the entering of the terms of settlement, because the settlement
related to an infant. In the appeal that is before this court, no such condition precedent exists. In this case, the 1st Respondent as beneficiary of the Consent Judgment only sought to enforce it. The reason the Appellant objects to this is his belated
allegation that the Consent Judgement was obtained by fraud and undue influence exerted upon him by his lawyers, as well as the lawyers
of the Appellant.
[37] In my view, it is significant that the Appellant does not allege that the 1st Respondent misled him or induced him against his will. The Appellant’s complaint is against the lawyers. Therefore, if at all such an action is maintainable, it would be one for breach of professional duties, and it does not in any way impinge upon the legal right of the 1st Respondent to enjoy the benefit of the Consent Judgment. Therefore, the facts of Sharma v Caldwell (supra) can be distinguished from the facts of this case, and the Appellant’s submission in this regard is rejected.
...
[46] A consent judgment is a judgment entered upon the merits, it is not a default judgment. When parties to a judgment opt freely and without compulsion to enter terms of settlement, which is made a judgment of court, it is no longer open to a court to adjudicate the subject matter of the dispute. Consent can be presumed if the parties were represented by Counsel. The doctrine of estoppel would operate, to preclude the re-opening of the matters settled. This is in the interest of finality, which is a cornerstone of public policy. A consent judgment then is a contract between the parties whereby rights are created between them in substitution for an order of court. It amounts to an abandonment of the original claim and is intended to put an end to the existing litigation between the parties. A consent judgment is as effective as a judgment delivered after contest and a consideration by the court of the merits of the dispute.”
[Emphasis added]
Analysis
“(4) Hopeless proceedings- Where proceedings which were viable when instituted have by reason of subsequent events become inescapably doomed to failure, they may be dismissed as being an abuse of the process of the Court (Domer v. Gulf Oil (Great Britain) [1975] 119 S.J. 392).”
(a) The Plaintiff’s Writ of Summons and Statement of Claim is hereby struck out; and
(b) 2nd Defendant is entitled to costs summarily assessed in the amount of $2,500.00, payable by the Plaintiff within 1 month of today.
P. Prasad
Master of the High Court
At Lautoka
31 July 2025
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