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Deo v Metal Works & Joinery Ltd [2015] FJHC 584; HBA05.2012 (12 August 2015)

IN THE HIGH COURT OF FIJI
APPELLATE JURISDICTION
AT LAUTOKA

Civil Appeal No. HBA 05 of 2012

(On Appeal from the decision of the Master delivered on 20/1/12 in Lautoka High Court Action No. HBE Winding Up Cause No. 12 of 2011

BETWEEN :

ROHIT DEO trading as HARDWARE WHOLESALERS FIJI having its business premises at Shop 2, 32 Namoli Avenue, Lautoka.
APPELLANT

AND :

METAL WORKS & JOINERY LTD
a limited company having its registered office at C/- Faiz Khan Lawyers, Level 2, 131 Vitogo Parade, Lautoka
RESPONDENT

Counsel : Ms A Swamy for Appellant
Mr Roneel Kumar for Respondent

Date of Judgment: 12 August 2015

JUDGMENT

Introduction

[1] This is an appeal by the petitioner in the winding-up action, Rohit Deo, trading as Hardware Wholesalers Fiji, against a decision of Master of the High Court given on 20 January 2012. By that decision the learned Master dismissed the Winding-up Petition filed on 21 June 2011 to have the respondent Company, Metal Works & Joinery Limited, wound up on the ground that it is unable to pay its debts. The reason for such dismissal was that the dispute about the debt was genuine.

[2] The grounds of appeal are as follows:

1. That the learned Master erred in law and in fact in concluding that there was dispute with regard to the debt as per cash sale made on 21 July 2010 when the facts and evidence proved that the same was clearly owing.
   
2. That the learned Master erred in law and in fact in concluding that no interest was payable when the respondent company was bound by contractual condition to pay the same as per evidence produced.
   
3. The learned Master failed to apply correctly the law relating to winding up petitions to the facts clearly proved in the hearing.
   
4. The appellant reserves the right to add, amend or vary the grounds of appeal upon receipt of the record of the High Court.
   

[3] The appeal was listed for hearing on 2 May 2012 before Y I Fernando, J when both parties had stated that the appeal can be decided by written submissions. As such, Fernando, J had allowed both parties to file their relevant written submissions. Accordingly,the appellant had filed its written submissions on 18 April 2012 and the respondent on 14 May 2012. The appellant had also filed an answering submission on 19 June 2012.

[4] Unfortunately, Fernando, J could not deliver the judgment before he left the bench in 2012.

[5] The matter is now listed before me. When the matter came on before me the parties did not make any application for rehearing. As the parties had agreed to the matter being decided by written submissions, it would be prudent for me to deliver the judgment. So, I propose to deliver my judgment upon reading the materials that are available on the record.

Facts of the case

[6] I have gleaned the facts from the appellant's submissions. Briefly, the facts are as follows: Rohit Deo trading as Hardware Wholesale Fiji ('the appellant') owns and operates a hardware and shop-fitting in Lautoka. Metal Works and Joinery Limited ('the Respondent') was a Credit Customer of the Appellant. In 2011, the respondent owed the appellant the sum of $9002-00 for goods sold and delivered under credit account and as part payment. On 7/2/2011, the Appellant served on the Respondent a statutory demand pursuant to s.221 of the Companies Act for payment of the sum of $9002-00 plus legal costs and accruing interest. The respondent refused to settle the debt saying that the debt was disputed. On 21/6/2011 the appellant presented in this Court a winding-up petition to wind up the respondent company. The Affidavit Verifying Petition was filed on 24/6/2011. The Petition was served on the Respondent on 27/6/2011. After advertisement few other creditors also supported the petition. The Petition was set down for hearing before the learned Master on 4/4/2011. Some 3 weeks after the presentation of the Petition, the Respondent by cheque paid the sum of $2612-30 leaving the balance sum of $6389-70. On 4/8/11, the Respondent sought time to file the Affidavit in Opposition and it did on 10/8/12, filed and served the Affidavit of Sanjina Devi. The learned Master by his ruling of 20 January 2011 dismissed the winding-up petition on the ground that the dispute about the debt is genuine. The appeal is against that decision.

Preliminary Objection

[7] The respondent had taken a preliminary objection to the appeal. The objection was that the appeal is out of time. The respondent in its written submission submits that, the appeal was out of time therefore this application should be struck out. The respondent further submits that there is no application for leave to appeal out of time that should have been the proper first course of action to begin with.

[8] The appellant filed a submission in reply. In the replying submission, the appellant submits as follows:

1. That the appeal was in fact filed on 08/02/2012, before the expiry of time, but the registry returned the appeal document for certain amendments.
   
2. That upon receipt of the documents proposing amendments, after a day or two, the documents were amended and refilled on 13/02/13.
   
3. That attached hereto are the 1st page and the last page of the appeal that were filed on 08/02/12. The notation of filing and the amendment suggested are clearly visible thereon.
   
4. That in view of the foregoing, the submission by the respondent that the appeal was filed out of time has no merits.
   

The Law

[9] This is an appeal from the decision of the Master. The High Court Rules 1988, as amended Order 59 rule 9 is relevant to this appeal. That rule provides as follows:

'An appeal from an order or judgment of the Master shall be filed and served within the following period-

(a) 21 days from the date of the delivery of an order or judgment; or
(b) in case of interlocutory order or judgment, within 7 days from the date of the granting of leave to appeal.' (Emphasis provided).

Determination

[10] The appellant appeals a decision delivered by the Master on 20 January 2012. Since this is an appeal from the Master's judgment, pursuant to O.59, r.9, the appellant should to have filed and served its appeal within 21 days from the date of the delivery of the judgment. 21 days including the date of decision expires on 9 February 2012. The appellant should have filed and served its appeal before 9 February 2012. But the appellant filed the appeal on 13 February 2012. The appeal is 3 days out of time.

[11] In the written submission respondent submits that the appeal should be dismissed, for the appeal was not filed and served within 21 days as required by O.59, r.9.

[12] In reply, the appellant submits that the appeal was in fact filed on 8/2/2012, before the expiry of the time, but the Registry returned the appeal document for certain amendments. The appellant further submits that upon receipt of the document proposing amendments, after a day or two, the documents were amended and re-filed on 13 February 2012, and in view of this the submission by the respondent that the appeal was filed out of time has no merits.

[13] O.59, r.9 requires that an appeal from the Master's order or judgment to be filed and served within 21 days from the date of delivery of the order or judgment. It will be noted that an appeal from Master's order must be filed and served within 21 days. In my opinion, filing the appeal within the time limit and then getting back for amendment would not be in compliance with rule 9.

[14] The HCR has provision to amend an appeal filed in court i.e.O. 59, r.15. Pursuant to rule 15, a notice of appeal or cross-appeal may be amended by or with leave of the Court. An inter partes application for amendment is to be made not less than 14 days before the date of the hearing of the appeal.

[15] The appellant contends that the appeal document was filed on 8 February 2012, the Registry returned it for certain amendment and the amended appeal document was filed on 13 February 2012. I am of opinion that it was improper to settle any amendment to the appeal at the Registry level. The appellant should have made an application to court if he wanted to amend the appeal already filed. The appellant got back the initial appeal filed on 8 February for amendment. The appellant filed and served the amended appeal on 13 February 2012. For the purpose of appeal, I would hold that a valid appeal was filed on 13 February 2012 and not on 8 February 2012. It follows the appeal was filed and served out of time.

[16] In Ali's Civil Engineering Ltd v Vitiana Timbers (Fiji) Ltd & Ors [2013] FJHC 598; HBC94.2006 (8 November 2013], Justice Amaratunga on the mandatory compliance of rules observed under paras 6 and 7 that:

"6. The Plaintiff contends that since their summons was accepted by the registry it should stand. This argument cannot hold water. The acceptance or even rejection by the registry is not a factor to be taken in to consideration as regard to issues relating to non-compliance. The Supreme Court Practice of UK (White Book) is clear on this point. Supreme Court Practice 1997 at paragraph 59/1/9

"It needs to be emphasized, however, that these procedures for vetting appeals and applications are intended to assist the Court in the management of its caseload and to ensure, so far as possible, that invalid appeals or applications are not accepted. They do not, however, relieve any party (whether represented or acting in person) of the obligation to comply with the requirements of all relevant rules and directions and that parsolicitor, or thor the party himself/herself, as the case may be, will remain solely resplnsible for all consequences, including the costs, of any failure to comply with a[n] relevant requirement. It follows the aance ofce of an appeal or application by the Civil Appeals Office (even after legal scal scrutiny) does not provide any guarantet it is valid and it remains open to any other party, and the Court of its own motion, if i if it thinks fit, to raise any jurisdictional issue or any failure to comply with any relevant rule or direction (see para. (5) of the Registrar's Practice Statement of October 24, 1990 (Practice Statement (Civil Appeals: Setting Down) [1990] 1 W.L.R 1436; [1990] 3 All E.R. 981)."[Emphasis Added]

7. If the summons is defective the court on its own motion can dismiss it, after hearing the parties. The acceptance of any document by the registry is an administrative issue and would not fetter the judicial determination on the defects and, or irregularities. The responsibility of compliance is squarely and fairly with the party's solicitor."

Conclusion

[17] The appellant failed to file and serve the appeal within 21 days from the date of delivery of the Master's decision as required by rule 9. The appeal is time barred. There is no application under r. 10 to enlarge the time period for filing and serving the notice of appeal. In the circumstances, I would dismiss the appeal in limine without considering its merits. I would make no order as to costs.

Orders

(a) Appeal dismissed.
(b) No order as to costs.

.........................................
M H Mohamed Ajmeer
JUDGE

At Lautoka
12 August 2015