| Fiji Islands - Basic Industries Ltd v Metromix Concrete Company Ltd - Pacific Law Materials |
IN THE HIGH COURT OF FIJI (AT SUVA)
CIVIL ACTION NO. HBC 273 OF 19span>
BETWEEN:
BASIC INDUSTRIES LIMITED
Plaintiff
AND:
METROMIX CONCRETPANY LIMITED
1st Defendant
AND:
MOHAMMED YASIN
2nd Defd Defendant
J. Howard for the Plaintiff
No appearance by the 1st Defendr> A.H.C.T. Gates for the 2nd Defendant
DECISION
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> This is an Application:
(a) fore to appeal against Decisions and an Order made by me on 4 December 1996; and
(b) for a of execution of my Order for payment into Court by the 2nd Defendant of a sum of $349,413.,413.20 the subject of the dispute
and Action between the parties.
On 4 December 1996 I dealt with Cross-Applications by the parties. They were:-
(a) an Appion by the 2nd Defendant that an affidavit deposed on behalf of the Plaintiff by Patrick Crck Cridland and filed on 30 October
be struck out on the grounds that it was scandalous, vexatious and an abuse of process; and
( Application by the Plaintiff for the sum in dispute to be paid into Court.
Having heard argument I delivered the following exore Decisions and Order:
As to the Application to strike out:
"Given the Defence filed and the fact that olicitors for the two DefenDefendants are subject to their client's instructions I
do not find the fear of dissipation of the funds in dispute expressed by the Plaintiff to be scandalous or vexatious. There is no
allegation of dishonesty against the 2nd Defendants Solicitors Messrs Maharaj Chandra & Co. The first Application fails."
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> As to the Application for payment into Court:
"In all the circumstances of this case as presently revealed by the affidaviidavits, the pleadings and the particulars I am satisfied
that there is a real risk that the sum in dispute may be dissipated by the 2nd Defendant before the Action can be tried. I accordingly
order that the sum of $349,413.20 be paid into Court forthwith."
Upon delivering the Order Mr. Gates that it be suspended but in the absence of any undertakingaking by him on behalf of the 2nd Defendant
not to deal with the funds I declined his request.
Paragraph 4.2 of an affidavit deposed by the 2nd Defendant on 11 December (which of course was not before me on 4 December) in my
view provides further support for the conclusions which I reached.
Before dealing with the present Application Ik it should be noted that my forthwith Order for payment innt in has not been obeyed.
The difficulty of obtaining an early appointment to make the present Applications does not, in my view, provide a completely satisfactory
explanation.
Applications for leave toal to the Fiji Court of Appeal against interlocutory orders must first be made to the High High Court (FCA
Act-Cap 12-Section 12(2)(f) and Rule 26(3)) but it has long been settled and well established that the exercise of discretion on
a point of practice or procedure will only be interfered with by an Appellte Court in "the most exceptional circumstances"
(see e.g. Evans v Bartlam [1931] AC 473; In re the Will of F.B. Gilbert (dec'd) [1946] NSWStRp 24; (1949) 46 S.R. (NSW) 318, 323 and Kelton Invs. v CAA FCA Reps. 95/218) and that by granting leave the lower Court will be taken to be encouraging the appeal (Hubball v Everitt & Sons Ltd (1900) TLR 168).
On 4 December 1996, having examined the papers before me and heard counsel I formeiew as to the risk of the fthe funds in question
being dissipated. The further information provided in support of these Applications if anything reinforces the view I had earlier
reached. Mr. Gates advances the proposition that RHC O 29 r 2(3) does not apply to the present facts and that the principles governing
the granting of a Mareva injunction are applicable. In reaching my earlier decision I however rejected this argument and in my opinion there is no scope or
occasion now to re-argue the issue.
On thstion of stay Mr. Gates suggested that if the sum in dispute were not left in Messrs Maharaaharaj Chandra's Trust Account then
the interlocutory appeal would be rendered nugatory. With respect I do not agree. In the event that the Fiji Court of Appeal grants
leave to appeal and upholds the 2nd Defendant then the sum safely lodged in Court can be immediately paid out. The Application for
a stay is really no more than a second attempt to have my Order for payment in suspended. In the continuing absence of any undertaking
it is again refused.
I find no merit in either of these Applications. They are both dismissed.
6 February 1997
Hbc00273.96s
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