Kalabo Investments Limited v. The New India Assurance Company Limited
| Jurisdiction | Fiji |
| Judge | Basnayake, JA,Almeida Guneratne, JA,Jameel, JA |
| Judgment Date | 04 October 2019 |
| Date | 04 October 2019 |
| Docket Number | CIVIL APPEAL NO. ABU 0010 OF 2019 [High Court Civil Action HBC No. 0043 of 2015] |
| Counsel | Mr. B.C. Patel for the Appellant,Mr. R.R. Gordon for the Respondent |
| Court | Court of Appeal (Fiji) |
IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT
CIVIL APPEAL NO. ABU 0010 OF 2019
[High Court Civil Action HBC No. 0043 of 2015]
Between:
Kalabo Investments Limited
Appellant
v.
The New India Assurance Company Limited
Respondent
Coram:
Basnayake, JA
Almeida Guneratne, JA
Jameel, JA
Counsel:
Mr. B.C. Patel for the Appellant
Mr. R.R. Gordon for the Respondent
Date of Hearing: 17th September 2019
Date of Judgment: 4th October 2019
JUDGMENT
Basnayake, JA
[1] I agree with the reasons and conclusion of Jameel, JA.
Almeida Guneratne, JA
[2] I agree with the judgment, the conclusion, the reasons given therefore, and the orders made by Justice Jameel.
Jameel, JA
Introduction
[3] This is an appeal from an Interlocutory Order dated 8 August 2018, of the High Court, whereby the learned Judge ordered the Appellant to provide the Respondent specified documents of the ‘other named insureds’, within 14 days of the judgment, in terms of the Respondent's Summons for Specific Discovery.
[4] The essence of the matters for determination by this court includes whether the learned Judge's Interlocutory Order ordering the Appellant to supply to the Respondent the documents set out in the said Order, correctly reflect the provisions of Orders 1, 2, and 24 of the High Court Rules 1988, as amended (“RHC”), whether such an Order could have been made based on the pleadings before court, and whether the expunging of the affidavit of one Peter Faire was in accordance with Order 41 of the High Court Rules 1988, as amended. The Appellant seeks to set aside the impugned Order, and allow the trial in the court below to continue on the pleadings already filed, and also seeks costs of this appeal as well as in respect of the proceedings of defending the Respondent's summons for discovery, in the court below.
The Pleadings
The Amended Statement of Claim
[5] By Amended Statement of Claim dated 12 June 2015, the Appellant pleaded (vide paragraph 5) that “Kalabo Investments Limited trading as Shop N Save was the Insured” under a Material Damage and Business Interruption Policy; on 10 June 2014 its Tavua shop was destroyed or damaged by a fire thus interrupting its business and thereby causing loss and damage. On 10 May 2015 it lodged with the Respondent's Loss Adjuster a claim under the said Policy for a sum of $1,034,804.45 for Business Interruption, covering the period 10 June 2014 to 1 October 2014, including claim preparation costs; and although the Respondent admitted liability under the Policy it had made no progress payment under the Policy.
[6] The Appellant pleaded that it had also submitted a claim for $ 1,488,349.14 under the Material Damage Policy, and sought judgment in a sum of $1,488,349.14 under the Material Damage policy, and a sum of $ 1,034,804.45 for the period covering 11 June 2014 to 1 October 2014 under the Business Interruption Policy. Both claims were prepared by the Appellant's Accountants PwC and had been refused by the Respondent. The Appellant thus claimed the said sums and consequential damages for breach of the insurance contract, and 10% interest under the Insurance Law Reform Act 1996, and indemnity costs, in judgment.
The Statement of Defence
[7] In paragraph 3 of its Statement of Defence dated 17 August 2015, the Respondent admitted paragraph 5 of the Amended Statement of Claim that Kalabo Investments was the Insured, set out how it had assessed the loss and damages, and said that it had paid the Appellant a sum of $1,361,483.75, as admitted.
Minutes of the Pre -Trial Conference
[8] At the Pre-trial Conference (RHC 75–50) the agreed facts and agreed issues were recorded. Reproduced below are the Agreed Facts.
A. AGREED FACTS
1. The Plaintiff is, and was at all material times, a duly incorporated company having its registered office at 411 Fletcher Road, Nabua, Suva carrying on business in Suva and elsewhere in Fiji under the name and style of Shop N Save Supermarket.”
2. The Defendant is, and was all material times, a foreign company duly incorporated under the laws of India and having its principal place of business in Fiji at Suva carrying on business in Fiji as insurance underwriter.
3. At all material times the Plaintiff operated, and still operates supermarket business in Tavua town.
4. By a material damage and business interruption policy of insurance number 1124/10057167/003/01 (“the policy”) the Defendant agreed to insure and indemnify the Plaintiff for the period 22 April 2014 to 22 April 2015 against the risks and for the amounts mentioned in the policy including against loss and damage by fire to the Plaintiff's business and stock and contents in the Tavua Shop.
5. The Policy provided, inter alia:
a. Insured:
Kalabo Investments Limited trading as “Shop N Save Supermarket” etc.
b. Business:
All business of whatsoever kind conducted by the Insured but not limited to wholesalers, retailers, shopkeepers, supermarket operators etc.
c. Perils Insured:
All risks of physical loss or damage – unintended and unforeseen by the insured – not otherwise excluded by the policy.
d. Insured Premises:
Included Plaintiff's premises at Main Road, Tavua Town.
e. Indemnity
If any physical loss or damage – untended and unforeseen by the insured – happens to any insured Property during the period of insurance, the Company will indemnify the insured for that loss or damage.
f. Material Damage cover for Tavua shop:
Stock:
$1, 000, 000
Contents
$750, 000
Demolition cost
$100, 000
Claim preparation cost
$200, 000
g. Business Interruption Cover $16, 250, 000 each and every loss
h. Progress Claim Payments
Where loss or damage has given rise to a valid claim on this Policy, the Company will make progress claim payments on production of acceptable evidence of insured loss. If the aggregate of progress payments exceeds the total amount of loss as finally adjusted, the insured will immediately refund the difference to the Company.
i. Claim Preparation cost:
This Policy extends to cover the reasonable cost of fees incurred by or on behalf of the insured of assessing or preparing any claim made under the policy.
6. On 10 June 2014, whilst the policy was current, the Plaintiff's stock and contents in the Tavua Shop were destroyed or damaged by fire and consequently the Plaintiff's business was interrupted.
7. The Defendant was duly advised of the loss and material damage claim was lodged in terms of the policy (“the material damage claim”) on 1 August 2014 as follows:
i. Stock
- $1, 097, 702.61
ii. Contents
- 415, 487.30
iii. Debris Removal
- 41, 400.00
iv. MD Claim Preparation cost
- 12093.40
- $1, 566, 683.31
Less 5% excess
78, 334.17
$1, 488, 349.14
8. The Defendant has since paid $1, 361,483.75 of the material damage claim to the Plaintiff pursuant to summary judgment obtained on 27 July 2015. The Defendant has also paid $129, 561. 75 as interest on $1, 361, 483.75 for the period 1 September 2014 to 20 August 2015 leaving a balance of $1, 563.45.
The Terms of Adjournment (RHC 93–94)
[9] Trial commenced, but was adjourned and the following Terms of Adjournment dated 11 August 2017 were recorded:
1. The parties agree to adjourn this part heard matter to attempt agreement on the quantum of B1 claim and on the balance MD claim, interest and costs.
2. To assist the parties to achieve agreement on the quantum of B1 claim:
a. The Plaintiff will provide to the Defendant within a reasonable time supporting documents for its B1 claim and other documents or information requested by MDD's letter dated 30 July 2015 so far as is now reasonably possible to comply. The Defendant can use information held in respected of 2013 fire provided they give copy of what is used to Plaintiff.
b. The Defendant will consider the documents provided in 2(a) and within a reasonable time from their receipt may seek such further documents or information as may be reasonably required to determine the quantum.
c. The Plaintiff will respond within a reasonable time to the further request made by the Defendant under 2(b).
3. On receipt of the documents referred to in 2 (a), the Defendant will, acting reasonably, consider making progress payment. If there is an overpayment due to any progress payment the Plaintiff will promptly refund the difference and pay interest on the over payment amount 7 days after the date over payment is determined.
4. The Plaintiff's and the Defendant's loss prepare/loss adjuster will, acting reasonably, liaise with each other and in good faith endeavor to reach agreement on quantum of B1 claim.
5. If either party is unreasonable in their request of documents or information or is unreasonably dragging out the matter, either party will be at liberty to apply to the Court for further directions on any matters of impasse.
6. The Defendant will not raise or rely on any of the documents annexed to the Affidavit of Avinesh Rai sworn on 2 August 2017 in this proceeding except MDD's letter of 30 July 2015 and except for raising and relying on the documents annexed to the said Affidavit of Avinesh Rai for the issue of interest on the B1 and MD claims.
7. The question of commencement date of interest on the B1 and MD claims will be decided by the Court in terms of s.34 of the Insurance Law Reform Act.
8. If the B1 claim or the MD claim is not settled by the parties by 30 November 2017 these claims will be assessed by the Court and the pending action will continue. In that event subject to (6) above and except for MDD's letter of 30 July 2015 and except for raising and relying on the documents annexed to the said Affidavit of Avinesh Rai for the issue of interest on the B1 and MD claims the parties will be at liberty to make or seek further discovery for the purpose of the hearing.
9. Liberty is reserved to either party to apply generally.
10. Costs of the action is reserved for agreement or determination by the Court.
Events following the Terms of Adjournment
[10] After the terms were filed, between the period...
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