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Nakasi Tyre Centre Pte Ltd, In re [2021] FJHC 370; HBE25.2021 (9 December 2021)

IN THE HGIH COURT OF FIJI AT SUVA

COMPANIES JURISDICTION

Winding Up Action No. 25 of 2021

AND

IN THE MATTER of Companies Act 2015

Counsel : Mr. K. Singh with Ms. K. Lal for the Applicant Company

Mr. R. Dayal for the Respondent Company

Date of hearing : 29^th November 2021

Date of Judgment : 09^th December 2021

JUDGMENT

[1] The applicant company filed this application for the winding up of the respondent company.

[2] In affidavit in support of Kalpesh Kumar Patel it is averred that on 01^st January 2021 the company was indebted to the applicant for the amount of $27,270.00 for rental.

[3] The Statutory Demand was served on the company on 01^st January 2021. The learned counsel for the company submitted that the respondent company received the statutory demand but said it was not served at the registered address of the respondent company. Since the respondent company admits the service of the Statutory Demand, it cannot be said that there was no proper service merely for the reason that it was not served on the registered address.

[4] Section 529 of the Companies Act 2015 provides:

(1) In so far as an application for a Company to be wound up in Insolvency relies on a failure by the Company to comply with a Statutory Demand, the Company may not, without the leave of the Court, oppose the application on a ground—

• (a) that the Company relied on for the purposes of an application by it for the demand to be set aside; or
• (b) that the Company could have so relied on, but did not so rely on (whether it made such an application or not).

(2) The Court is not to grant leave under subsection (1) unless it is satisfied that the ground is material to proving that the Company is Solvent.

[4] The respondent company did not make any application seeking leave to use grounds it intended to use to have the statutory demand set aside.

[5] The respondent company also did not file affidavit and notice opposing the application for winding up as required by Rule 15 of the Companies (Winding Up) Rules 2015.

[6] Rule 15(1) provides:

On the hearing of an application under section 513 of the Act, a person may not, without the leave of the Court, oppose the application unless the person has, not less than 7 days before the time appointed for the hearing –

(a) Filed an affidavit in opposition to the application; and
(b) Served on the applicant or the applicant’s solicitor –

• (i) a notice in the Form D6 in Schedule 2 of the grounds on which the person oppose the application; and
• (ii) a copy of the affidavit.

[7] The respondent company did not file affidavit in opposition as required by the above Rule. At the hearing of the application for winding up the learned counsel for the respondent company attempted to tender some documentary evidence from the bar table which was objected to by the learned counsel for the applicant company.

[8] Without following the procedure prescribed by the Rules a party cannot adduce evidence from the bar table. The learned counsel for the respondent company submitted that the applicant company must prove the debt.

[9] If the respondent did not agree with the amount it should have filed an application to have the statutory demand set aside. As I stated above no such application was made by the respondent.

[10] In paragraph 5 of the affidavit in support it is averred that on 1^st January 2021 the Company was indebted to the Applicant for the amount of $27,200.00 (Twenty Thousand, Two Hundred and Seventy dollars) VIP for rental.

[11] This is affidavit evidence. The respondent company has failed to adduce any evidence to the contrary. The court therefore, has no reason to disregard this evidence.

[12] Section 515 of the Companies Act 2015 defines as follows the inability to pay debts:

Unless the contrary can be proven to the satisfaction of the Court, a Company must be deemed to be unable to pay its debts—

(a) if a creditor, by assignment or otherwise, to whom the Company is indebted in a sum exceeding $10,000 or such other Prescribed Amount then due, has served on the Company, by leaving it at the Registered Office of the Company, a demand requiring the Company to pay the sum so due (“Statutory Demand”) and the Company has, not paid the sum or secured or compounded for it to the reasonable satisfaction of the creditor within 3 weeks of the date of the notice;

(b) if during or after a period of 3 months ending on the day on which the winding up application is made—

(i) execution or other process issued on a judgment, decree or order of any Court in favour of a creditor of the Company is returned unsatisfied in whole or in part;

(ii) a Receiver or Manager has been appointed, of Property of the Company was appointed under a power contained in an instrument relating to a Floating Charge on such Property; or

(iii) it is proved to the satisfaction of the Court that the Company is unable to pay its debts, and, in determining whether a Company is unable to pay its debts, the Court must take into account the contingent and prospective liabilities of the Company

[13] Whether the respondent is able to pay the amount which exceeds the statutory minimum is within the exclusive knowledge of the respondent but no evidence was adduced to show that they have means to pay the debt.

ORDERS

1. The Company NAKASI TYRE CENTRE PTE LIMITED is hereby wound up.
2. The Official Receiver is appointed as the Provisional liquidator.
3. There will be no order for costs.
   

Lyone Seneviratne

JUDGE

09^th December 2021