| Fiji Islands - Huang Tzung-Hao v A Team Corporation Ltd - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO. 346 OF 1998
BETWEEN:
1. HUANG TZUNG-HAO
2. YANG MAN-HWA
Plaintiffs
AND:
1. A TEAM CORPORATION LIMITED
2. YU SHIN HO
aka J.J.YU
Defendants
M Nagin for the Plai Plaintiffs
Mr. Suresh Maharaj for the Defendants
DECISION
(Dissolution of Marnjunction)
This is an application by the defendants to dissolve the mareva injuncnjunction granted ex parte on the application of the plaintiffs
on 9 July 1998. The defendants are also seeking an order for security for costs of this action in the sum of $25,000.00 by way of
cash deposit. An order is also sought that Messrs. Sherani & Co., Solicitors acting for the plaintiffs in this action be restrained
from acting in the matter any further.
Background facts
A number of affidavits have been filed in this matter apart from the Writ of summons issued herein. The first plaintiff swore an affidavit
in support on 30 June 1998 on which the order for Mareva Injunction was made returnable for 7 August 1998. An affidavit in Support
of dissolution of injunction was filed on 7 August 1998. An Affidavit in Reply was filed by Pratap Singh the attorney under a Power
of Attorney for the first plaintiff on 21 August 1998. Both counsel, as ordered, filed written submissions for my consideration.
Determination of the issue
The issue for my determination is whether the said Mareva Injunction ought to be dissolved or not in the light of the affidavits filed
and submissions made.
The circumstances which gave rise to this action and the application for injunction are very briefly as follows (as contained in the
Statement of Claim):
IN or about 1997 at the request of the Second Defendant the Plaintiffs appointed the First Defendant as their agent in Fiji for the sale
of shoes to retail outlets.
THE Plaintiffs then supplied shoes in large quantities to the First Defendant which sold and delivered the shoes on behalf of the Plaintiffs
to various retail stores and the sum outstanding by the said retail stores was F$229,602.00 (TWO HUNDRED AND TWENTY-NINE THOUSAND SIX HUNDRED AND TWO DOLLARS IN FIJIAN CURRENCY).
ON the 15th day of August, 1997 the Plaintiffs and the Defendants entered into a Deed whereby the First Defendant agreed to collect
the moneys outstanding by the retail stores and remit the same to the Plaintiffs. The Second Defendant guaranteed the performance
of the obligations of the First Defendant.
THE Defendants subsequently collected moneys from the retail outlets but have refused to remit the same to the Plaintiffs and have also
refused to account the same to the Plaintiffs.
THE sum presently outstanding to the Plaintiffs is the sum of F$166.143.10 (ONE HUNDRED AND SIXTY-SIX THOUSAND ONE HUNDRED AND FORTY-THREE DOLLARS AND TEN CENTS IN FIJIAN CURRENCY.
THE Plaintiffs have made several demands on the Defendants but the Defendants have refused to pay the same.
I have carefully considered the affidavits filed by the parties. The defendants do not agree with a lot of the facts alleged by the
plaintiffs in support of their application. Among other things, the second defendant says that his brother also collected moneys
from retail stores and that he himself (D2) is holding the sum of $19845.75 in the first defendant's account with Bank of Hawaii
but that he says that "no amount is due until the sum of $120,000.00 is collected are remitted to the Plaintiffs" as provided
in the Deed dated 15th August 1997. However, he says, that "before the defendant could do so the first plaintiff stopped the Retail Stores or outlets from paying any further sums to my
brother Yu Shin Ho Wei"
It appears that the whole business has come to a standstill with no action being taken by anyone on dishonoured cheques.
The defendants have a business here as stated in the affidavit in support of the dissolution and they say that they will not remove
any money or any other properties owned by them. The second defendant is a Fiji citizen whereas the Plaintiffs ordinarily reside
in Taipei in Taiwan and "as such do not have any fixed assets or properties in Fiji apart from what they may be owed by certain retail shop here".
By Affidavit in Reply the plaintiffs dispute the defendant's version of collection of the money and the accounts. A detailed account
of how the claim is made up is set out in the said affidavit of the plaintiffs.
The plaintiffs say "that if the 'Mareva Injunction is causing hardship to the defendants and they should be able to deposit $112,917.88 in Court". At one time the second defendant told Mr. Nagin that the sum of $33,659.53 in the first defendant's account at Bank of Hawaii (annexure
'B' to plaintiff's affidavit) was the moneys of the plaintiffs. Now they say that they are only holding $19,845.75 in that Bank account.
Both counsel in their written submission dealt with the law governing the grant of mareva injunction. I have considered the law on
subject and I do not propose to reiterate it here.
Mr. Nagin submits that there is a real risk that the defendants would dissipate all the assets in such a manner that there will be
nothing left to recover once judgment is obtained against them judging by the way the Bank of Hawaii account has been reduced. On
the other hand Mr. Maharaj submits that the dispute between the parties is a contractual one which should be decided in the normal
course on proper evidence. He says that on the whole of the evidence in the exercise of the Court's discretion the mareva injunction
granted on 9 July 1998 be dissolved.
Conclusion
Upon considering the whole of the affidavit evidence before me and having considered the written submissions of counsel and bearing
in mind the fact that the first defendant's account with the Bank of Hawaii had the sum of $33,659.53 now depleted to $19,845.00
but being the moneys which properly belonged to the plaintiffs on the defendants' own admission and the action being ready for entry
for trial after the Pre-trial Conference Minutes are signed, in the exercise of my discretion, I propose to make certain Orders.
The Mareva injunction granted on 9 July 1998 is ordered to be dissolved upon condition that the defendants deposit into Court the
sum of $33,659.53 within 21 days from the date of this decision to abide the determination of this action. Failure to comply with
this order will mean that the Mareva injunction will remain until the trial of this action. It is further ordered that this action
be entered for trial with the least possible delay with liberty to either party to apply. The costs of the hearing are to be paid
by the defendants to the plaintiffs in the sum of $200.00 within 14 days.
I make no other orders as sought at this stage with liberty to either party to apply generally.
D. Pathik
Judge
At Suva
1 December 1998
Hbc0346d.98s
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