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Hotel & Resort Investment Holdings Pte Ltd v Bank of South Pacific Ltd (BSP) [2019] FJHC 1060; HBC132.2011 (1 November 2019)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

Civil Action No. HBC 132 of 2011

IN THE MATTER of the Land transfer Act 1971, Section 109.

AND

IN THE MATTER of an application to remove Caveat No. 873707 lodged by

HOTEL & RESPRT INVESTMENT HOLDINGS PTE LTD against

Certificate of Title No. 38013, the property of

HOTEL EQUIPMENT LIMITED.

BETWEEN

HOTEL & RESORT INVESTMENT HOLDINGS PTE LTD a limited

liability company having its registered office at

Concave Drive, Namaka, Nadi in the

Republic of Fiji.

DEFENDANT – APPELLANT

AND

BANK OF SOUTH PACIFIC LIMITED (BSP) a banking company duly

incorporated in Papua New Guinea and registered in

Fiji as a foreign company with its principle office at

Suva in Fiji.

PLAINTIFF – RESPONDENT

Counsel : Ms Prasad L. for the Plaintiff-Respondent

Mr Siga S. (as a representative) for the Defendant-Respondent.

Date of Hearing : 02^nd October 2019

Date of Ruling : 01^st November 2019

RULING

[1] The plaintiff-appellant filed an Originating summons seeking to have the Caveat No. 873707 removed.

[2] The learned Master of High Court after hearing the parties delivered her ruling on 27^th June 2019 ordering that the caveat be removed forthwith.

[3] Being dissatisfied with the ruling of the learned Master of the High Court the defendant-appellant on 16^th July 2019 filed notice and grounds of appeal which was served on the same day.

[4] On 05^th August 2019 the defendant-appellant filed summons for directions seeking inter alia to have the appeal set down for hearing, pursuant to Order 59 rule 17 of the High Court Rules 1988. The summons for directions was served on the plaintiff-respondent on 14^th August 2019.

[5] When this matter mentioned before this court on 28^th august 2019 the learned counsel for the defendant-appellant raised a preliminary objection that the summons for directions was not in conformity with Order 59 rule 17(2) of the High Court Rules 1988 and the Court fixed the matter for hearing on the preliminary objection.

[6] Order 59 rule 17 of the High Court Rules provides:

(1) The appellant shall, upon serving the notice of appeal on the party or parties to the appeal, file an affidavit of service within 7 days of such service.
(2) The appellant shall, within 21 days of the filing of the notice of appeal, file and serve a summons returnable before a judge for directions and a date for the hearing of the appeal.
(3) If this rule is not complied with, the appeal is deemed to have been abandoned.

[7] In this matter the summons for directions was filed on 05^th August 2019 at 2.03 hours. The files was sent to me on 06^th August 2019 and I directed that the matter be mentioned on 28^th August 2009 and sent the file back to the registry on the same day. This was served on the plaintiff-respondent on 14^th August 2019 which was admittedly out of time.

[8] The learned counsel for the plaintiff-respondent many authorities in this regard. The submission of the defendant-appellant is that once the documents are filed in the High Court Registry, it takes time to release it for service and the summons for direction was released on 14^th August 2019. From the date of filing and serving of the notice and grounds of appeal the period of 21 days prescribed by Order 59 rule 17(2) expired on 06^th August 2019.

[9] Within the period of 21 days prescribed by Order 59 rule 17(2) an appellant is required to do two things that is to file the summons for directions and serve it on the respondent. The defendant-appellant in this case knowing very well that these two requirements should be satisfied within the said period of 21 days should have filed the summons for directions giving sufficient time for the registry to obtain the necessary directions from the court and release it to serve of the plaintiff-appellant. The defendant-appellant cannot wait for the last day to file the summons for directions and cannot allege that the delay was caused by the registry.

[10] In the case of Gay v Resolution Trust Corporation [2010] FJHC 268; HBA01.2009 (26 February 2010) it was held:

The Rules in Part II of Order 59 have imposed a strict timetable for the filing and serving of documents at the Registry and on the Respondents. The purpose of the Rules was obviously to avoid delay at the interlocutory stage of civil proceedings and to make such appeals more efficient. The provision in Rule 17 (3) that failure to follow Rules 17 (1) and 17 (2) leads to an automatic abandonment of the appeal is intended to operate as a deterrence in respect of delay (see Ports Authority of Fiji –v- G. T Marketing Limited unreported Civil Appeal (Shameem JA) No. 4 of 2001 delivered 22 February 2001).

As a result I find that the appeal is deemed to have been abandoned under Rule 17 (3) as a result of non-compliance with Rule 17 (2). I also find that the Notice of Appeal was not filed within the time prescribed by Rule 9 and that no application was made under Rule 10. There was no explanation provided for non-compliance with those Rules.

In Deo v Ascot Motors Proprietary Ltd [2011] FJHC 782; Action 331.2008 (18 November 2011) it was held:

The effect of the rule is that if the appellant does not file an affidavit within 7 days of service or does not file and serve a summons with 21 days of the filing of his notice of appeal, he is deemed to have abandoned his appeal.

In this case the affidavit required under Order 59 Rule 17 (1) was filed on 31 August 2011 and therefore was filed within the required seven days.

However the summons required under Rule 17 (2) whilst filed on 14 September was not served on the Second Defendant until 26 September 2011. The summons was required to be served no later than 13 September 2011. It was as a result out of time by 13 days.

Rule 17 is quite clear. Under those circumstances the appeal is deemed to be abandoned. In civil litigation, abandonment is taken to mean the relinquishing of the whole or part of a claim in an action or in an appeal. The appeal is therefore deemed to have been abandoned by the appellant. There is now no longer any appeal in existence. This result is an automatic consequence that is prescribed by the rule with no second chance.

Counsel for the Plaintiff referred the Court to an interlocutory decision in A Mitchell Gay and Another –v- Resolution Trust Corporation and Others (unreported civil appeal HBA 01 of 2009 delivered 26 February 2010). During the course of that decision I made an observation, when dealing with a similar situation, that there was no explanation in the affidavit material to explain the failure to comply with Order 59 Rule 17 (2). To the extent that the comment may be taken to indicate that such an explanation, if reasonable could alleviate the consequence of non-compliance, then the comment should be disregarded as it was misleading. Whilst draconian, the consequence mandated by Rule 17 (3) for non-compliance with either Rule 17 (1) or Rule 17 (2) of Order 59 is final and absolute.

[11] The learned counsel for the plaintiff-appellant made submission on the issue of reinstatement of an appeal which is deemed to have been abandoned but the only issue for the determination of the court here is only whether the appeal of the defendant-appellant is deemed to have been abandoned for its failure to comply the provisions of Order 59 rule 17(2) of the High Court Rules 1988. Whether the court has the power to reinstate the appeal which is deemed to have been abandoned arises only if the court decides that the appeal of the defendant-appellant is deemed to have been abandoned.

[12] The representative of the defendant-appellant in his submissions relied on the decision in Kumar v Pillay [2014] FJHC 61; HBA04.2013 (14 February 2014) and submitted that it was not its intention to park the case in the system but to continue with it. The defendant-respondent in support of his submission placed reliance on the following paragraph of the judgment:

The purpose of the rule 17(2) is that where the notice of appeal does not bear a provision to endorse returnable date before a Judge, a summons must be filed within 21days before a judge for directions and hearing of the appeal. If the summons is not filed to move the appeal, the appeal would be deemed abandoned under Rule 17(3). The rule was specifically to avoid appellant's using the Court system to "park" their cases.

[13] I cannot see how the decision in Kumar v Pillay (supra) can assist the defendant-appellant. The facts of that case are totally different from that of the matter before this court and is therefore of no relevance.

[14] For the reasons setout above I make the following orders.

ORDERS

1. The court orders that the appeal of the defendant-appellant be deemed abandoned.
2. The defendant-appellant is ordered to pay $2000.00 as costs to the plaintiff-respondent.
   

Lyone Seneviratne

JUDGE

01^st November 2019