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Fu v Peng [2001] FJHC 125; Hbc0349D.2000s (4 September 2001)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION HBC 349 OF 2000S

Between:

MAO NAI FU & OTHERS
Plaintiffs

and

RICHARD PENG & OTHERS
Defendants

Ms. S.L. Waqainabete for the Plaintiffs
D. Sharma for the Defendants

DECISION

In April 2000 the Plaintiffs commenced proceedings seeking approximately $90,000 from the Defendants plus interest and costs. The causes of action by the 3 Plaintiffs are not identical but include breach of contract, fraud and money had and received.

On 21 September 2000 the Defendants former solicitors filed an application pursuant to RHC 0 18 r 18 to strike out the writ on the ground that no reasonable cause of action was disclosed.

On 18 October 2000 the Defendants filed an application for an order that an immigration bond valued at $3000 and held by the Department of Immigration in the name of one of the Defendants in respect of the visas issued to the first 2 Plaintiffs be cancelled and replaced. The affidavit in support again alleged fraudulent conduct by the Defendants. It was conceded that the application did not directly relate to the writ.

On 10 January 2001 the Plaintiffs filed a second summons seeking Judgment in default of Defence.

On 15 January an extensive and detailed Statement of Defence was filed by the Defendants present solicitors. A detailed affidavit in opposition to the affidavit filed by the Plaintiffs in support of their 18 October application was also filed.

On 18 January the 3 applications came before me for hearing. Ms. Waqainabete informed me that Mr. Bulewa was unwell and would not be returning to Fiji until March. The hearing was adjourned to 20 March.

On 20 March Ms. Waqainabete again appeared on behalf of the Plaintiffs. She told me that Mr. Bulewa had still not returned from overseas and that she did not know when he would be coming back. She also told me that she had been unable to prepare an affidavit in reply to that filed by the Defendants on 15 January. She sought a further adjournment.

Mr. Sharma did not oppose the application for an adjournment but indicated that he was withdrawing his O 18 application. I then declined to grant an adjournment to the Plaintiffs and dismissed both their applications. My reasons were as follows.

On 24 November 2000 when the matter first came before me I indicated that the Department of Immigration should be served with the papers as an interested party. That had still not been done by the following March. In my view there was really no excuse for failing to file an answering affidavit to that filed by the Defendants on 15 January. That affidavit clearly called for an answer as the first Defendant averred that the funds to pay for the immigration bond were in fact provided by the second Defendant. The matter had already been adjourned twice previously and there must be a limit to the amount of time that the Court can allow to be wasted in this way. Substantial issues of fact were raised in the affidavits which cannot satisfactorily be resolved without hearing evidence. As already mentioned a Statement of Defence had been filed.

In the 12 months since the action was commenced it has not made very much progress although directions have been given by the Deputy Registrar after a summons was taken out by the Defendants who have also filed their affidavit of documents.

In my view there is nothing to be gained by further time being spent on interlocutory applications. The action should be progressed to trial as soon as possible.

M.D. Scott
Judge

4 September 2001