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Adrenalin (Fiji) Proprietary Ltd v Denarau Investment Ltd [2011] FJHC 792; HBC226.2009L (8 December 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No HBC 226 of 2009L

BETWEEN:

ADRENALIN (FIJI) PROPRIETARY LIMITED a duly incorporated limited liability company with its registered office situated at Office 08, Building A, Port Denarau Marina Centre, Port Denarau, Fiji Islands
Plaintiff

AND:

DENARAU INVESTMENT LIMITED a limited liability company having its registered office at C/- Munro Leys, Solicitors, Level 3, Pacific House, Butt Street, Suva.
Defendant

Appearances:
Mr S.Nandan for the Plaintiff
Mr A.Prasad for the Defendant

ORDER

1. The Writ of Summons was filed on the 9thDecember 2001 and the Defendant has made an application on the 18th February 2002 under Order 12 Rule 7(1)(g), seeking that the Writ of Summons be set aside or a stay of proceedings be granted.
   
2. Order 12 Rule 7(1) of the High Court Rules 1988 provides:
   

"(1) A defendant who wishes to dispute the jurisdiction of the court in the proceedings by reason of any such irregularity as is mentioned in Rule 6 or on any other ground shall give notice of intention to defend the proceedings and shall, within the time limited for service of a defence apply to the court for:

(a) an order setting aside the writ or the service of the writ on him; or

(b) an order declaring that the writ has not been duly served on him; or

(c) the discharge of any order giving leave to serve the writ on him out of the jurisdiction; or

(d) the discharge of any order extending the validity of the writ for the purpose of service; or

(e) the protection or release of any property of the defendant seized or threatened with seizure in the proceedings; or

(f) the discharge of any order made to prevent any dealing with any property of the defendant; or

(g) a declaration that in the circumstances of the case the court has no jurisdiction over the defendant in respect of the subject matter of the claim or the relief or remedy sought in the action; or

(h) such other relief as may be appropriate."

3. In the Defendants written submissions of 29th November 2010 at paragraph 20 the Defendant concedes that the said application was filed "10 days after the time for filing a defence under the rules had expired."
   
4. Order 12 Rule 7 (1) addresses the earlier arguments, based on waiver of antecedent irregularities under "conditional appearances", and provides the procedure to take up such objections based on irregularity or lack of jurisdiction at the earliest opportunity so as to avoid the interlocutory delays. The Defendant has to make its application, "within the time limited for service of a defence", as per Order 12 Rule 7(1), and by the time the Defendant made the application on 18th February 2010, admittedly that time had lapsed by 10 days!
   
5. If the Court permits the Defendants application to be entertained when it is admittedly at least 10 days out of time, then this Court will set a precedent that will bring to naught the mandatory requirement under Order 12 Rule 7(1) that the Defendant; " shall, within the time limited for service of a defence apply to the court".
   
6. The Defendant seeks to justify the delay by imputing that such delay was condoned or even agreed to by the Plaintiff. However mandatory provisions with the specific use of mandatory terminology and the use of the word "shall" does not leave room for parties to agree upon or condone the non compliance of those provisions. Parties cannot by consent alter or circumvent the Rules.
   
7. This Court shall not go in to the issue of which is the "more convenient forum", as the application is admittedly out of time and as it is a matter that parties on agreement can settle by withdrawing this action and filing another action in New Zealand if they so wish to.
   
8. Yet again this Court is compelled to remind practitioners and litigants alike of Sir Donald's words in, RE UNISOFT GROUP LTD (NO.2) 1993 BCLC (Butterworth's) 532 at 537, Chancery Division(Companies Court), 13th & 14th October 1992. (Sir Donald Nicholls);"This would be yet another example of an ill which all too frequently bedevils the interlocutory stages of too many actions; one or the other or both parties spend time and money sniping at each other which would be much better spent on pressing ahead speedily and directly to the trial at which alone their substantive dispute can be effectually decided".
   
9. Therefore the Defendants "Summons to set aside Writ of Summons or Stay Proceedings" of 18th February 2010 is dismissed, with costs to the Plaintiff, summarily assessed at $500/=.
   
10. Mention on 2nd February 2012 for compliance with rules and for further directions if necessary.
    

Hon. Justice Yohan Fernando.
PUISNE JUDGE.

High Court of Fiji
At Lautoka
8th December 2011.