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Japanese Truck Parts (Fiji) Ltd v Merchant Finance and Investment Company Ltd [2013] FJHC 551; HBC201.2013 (22 October 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action # HBC 201 of 2013

BETWEEN:

JAPANESE TRUCK PARTS (FIJI) LTD, a limited liability company incorporated under the Laws of Fiji and having its registered office at Leonidas Street, Vitogo, Lautoka, Fiji.
Plaintiff

AND:

MERCHANT FINANCE AND INVESTMENT COMPANY LTD, a finance and lending institution incorporated under the Laws of Fiji having its registered office at 91 Gordon Street, Suva, Fiji.
Defendant

Counsel: MR NANDAN S. of Reddy & Nandan Lawyers
MS RAKAI instructed by Siddiq F K Lawyers

Date of Judgment: 22nd October, 2013

JUDGMENT

1. Ex-parte Motion was filed by the Applicant on 1st July 2013 and sought the following Orders:

(i) Until further Orders, the Defendant be restrained from proceeding with a winding up petition against the Applicant;

(ii) Until further Orders, the Defendant be restrained from proceeding with an advertisement to wind up the Applicant;

(iii) Any other Orders deemed just and equitable by the Court; and

(iv) The costs of this application be costs in the cause.

2. The matter was taken up for hearing ex-parte and orders were granted in terms of paragraphs 1 and 2 which were in force until 16th July 2013 and time to time validity of the said Order was extended.

3. When the matter was called on 16th July 2013, it was stated by the counsel for both parties that the case is settled, except for the element of costs and moved for 7 days time to resolve same and the matter was fixed for 26th July 2013.

4. On 26th July 2013, the counsel for the Defendant Mr Nandan stated that the costs issue to be fixed for inquiry and writ to be served on the Defendant within seven days. Ms Draunidalo T. counsel for the Plaintiff stated since the matter being settled the terms of settlement will be filed but the issue of the costs remains. Accordingly, the court directed to file terms of settlement within 7 days and inquiry on the issue of costs was fixed for 19th August 2013.

5. On 19th August 2013, when the matter was called, both counsel moved for a postponement and it was fixed for 12th September 2013 and no terms of settlement filed and matter was fixed for 11th October 2013. On 11th October 2013, the court made order that unless matter is resolved the court shall make orders, on costs on the next day 22nd October 2013.

6. When the matter was taken up today, 22nd October 2013, it was stated by the counsel they agree to costs being summarily assessed by this court.

7. Accordingly, I consider the following for consideration:

(a) The Ex-parte Motion supported by an Affidavit was filed on 1st July 2013 and not Writ of Summons filed as directed to date;

(b) The matter was called on 16th July 2013; 26th July 2013; 19th August 2013; 12th September 2013; 11th October 2013 and 22nd October 2013;

(c) No papers were filed by the Defendant to date since the matter was settled before 16th July 2013 (except for the costs issue);

(d) Except for the application made on 19th August 2013, all other instances the case was postponed at the request of the Plaintiff and the Plaintiff too defaulted in taking steps as per court directives.

Considering all the factors into consideration, I Order the Plaintiff to pay summarily assessed costs calculated at $300.00 per day (except for one day the postponement was granted on the application by both parties) for 5 days totaling to $1,500.00 to the Defendant within 21 days of this Order.

The Ex-parte Motion filed on 1st July 2013 is dismissed.

Delivered at Suva this 22nd Day of October, 2013.

C. Kotigalage
JUDGE