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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL CASE NO. HBC 266 OF 2023
XIAOLONG HU and LIJUAN ZHENG
Plaintiffs
V
LIANG DING
First Defendant
WEIXIANG CAO
Second Defendant
JULIAN SUNG KONG YUEN
Third Defendant
REGISTRAR OF COMPANIES
Fourth Defendant
ATTORNEY GENERAL OF FIJI
Fifth Defendant
RESERVE BANK OF FIJI
Sixth Defendant
Appearances: Mr Cakau and Ms Tosokiwai for Plaintiffs
Mr Jamnadas for 1st Defendant
Ms Tivao for 2nd & 3rd Defendants
Ms Manueli and Ms Naulumatua for 4th & 5th Defendants
Mr Baleidrokadroka for 6th Defendant
Hearing: 2 May 2024
Judgment: 9 August 2024
JUDGMENT
(Summons to Strike Out Claim & Set Aside Interim Injunctions)
[1] The Plaintiffs are the original shareholders, directors and founders of WG International Real Estate Co. (Fiji) PTE Limited (which I will refer to as “WG Ltd”). The company was established by the Plaintiffs in order to construct a multi-level building in Suva, identified by the Plaintiffs as the WG Friendship Plaza. The First and Second Defendants are now the majority shareholders of WG Ltd. They are also directors, along with the Plaintiffs, of the company. According to the Plaintiffs, the First, Second and Third Defendants have taken over control and management of the construction of WG Friendship Plaza.
[2] The Plaintiffs have brought these proceedings to recover their shareholding and control of WG Ltd. The Plaintiffs’ claim that the First, Second and Third Defendants fraudulently wrested control and majority ownership of WG Ltd from them.
[3] In order to protect their position, the Plaintiffs sought and were granted interim injunctive relief on 19 December 2023.[1] The interim orders being:
[4] The Second and Third Defendants have filed the following summons:
[5] The First Defendant supports the position of the Second and Third Defendants. The three defendants argue that the Plaintiffs claim of fraud has no factual or evidential basis whatsoever and that the Plaintiffs have misled the Court by failing to disclose material facts that undermine their case.
Background
[6] The material facts as elicited from the Plaintiffs’ pleadings and the parties sworn evidence are as follows:
Real Estate (located in Nasese, Suva): Sell the originally acquired real estate at an appropriate time and invest the proceeds in the construction of subsequent projects.
Present proceedings
[7] These proceedings were filed on 1 September 2023. The Plaintiffs’ plead the following:
[8] The Sixth Defendant filed a Defence on 19 October 2023, the Fourth Defendant on 23 October 2023, and the Second and Third Defendants on 27 October 2023[6]. The First Defendant filed a Defence and Counterclaim on 8 November 2023[7].
[9] The First, Second and Third Defendants deny the allegations against them. They state that the First and Second Defendants shareholding in WG Ltd is legitimate and supported by the Business Agreements executed between 2016 and 2019. The First Defendant counterclaims on the basis that the Plaintiffs’ claim is an abuse of process.
[10] On 6 December 2023, the Plaintiffs filed an Ex-Parte application for injunctive relief with supporting affidavits by the first named Plaintiff dated 5 December and 13 December 2023. Injunctive orders were granted on 19 December 2023 subject to the Plaintiffs’ filing an affidavit with an undertaking as to damages – the affidavit was filed by the first named Plaintiff in January 2024.
[11] On 14 December 2023, the Second and Third Defendants filed a Summons to strike out the Plaintiffs’ claim against them on the basis that the pleadings disclosed no reasonable cause of action and the allegations of fraud were not sufficiently particularised. There followed a further summons filed by the Second and Third Defendants to set aside the injunctive orders. The Third Defendant executed affidavits in support .[8]
[12] The hearing of the two summons proceeded on 2 May 2024. Counsel for all parties attended. However, only counsel for the Plaintiffs, the First Defendant, and the Second and Third Defendants wished to be heard.
SUMMONS TO STRIKE OUT CLAIM
[13] Ms Tivao, for the Second and Third Defendants, advanced two broad grounds for the strike out by the Second and Third Defendants. Firstly, that the Plaintiffs’ allegations of fraud had not been properly particularized and, secondly, the Plaintiffs had not disclosed a reasonable cause of action. Ms Tivao considered each of the Plaintiffs’ allegations of fraud as follows:
[14] Mr Jamnadas, for the First Defendant, accepted that the Court has a discretion to order further and better particulars where pleadings are not well formulated. He suggested that this avenue was not available for the Plaintiffs because the uncontested facts ripped apart the Plaintiffs claims of fraud. For example, the Plaintiffs knew of the share transfer in June 2019, they knew of the extraordinary meeting to discuss the share restructure in 2021, and they knew of the sale of the property at 193 Queen Elizabeth Drive. He submitted that the pleadings, in its current form, were an abuse of process. He submitted that the authorities show that the courts will not entertain a dishonest motivation for bringing a claim. He argued that there were blatant contradictions between the facts pleaded in the Plaintiffs Statement of Claim and the facts deposed by Mr Hu in his affidavits.
[15] Mr. Cakau, for the Plaintiffs, stated that the Plaintiffs admitted the fact of the Chinese Business Agreements. It appears, however, that the Plaintiffs’ do not accept the English translations because these documents were not signed by the Plaintiffs or translated by registered translators. I sought Mr Cakau’s clarification of the Plaintiffs position on the following:
Decision on summons to strike out claim
[16] The summons to strike out the Plaintiffs’ claim is made under O.18, r.18(1)(a) and (d) of the High Court Rules 1988. The provision reads:
The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that-
(a) it discloses no reasonable cause of action or defence, as the case may be;
(b) it is scandalous, frivolous or vexatious;
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the Court;
and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.[11]
[17] The principles applicable to a strike out application are well settled. In National NBF Finance (Fiji) Limited v. Buli [2000] FJCA 28, the Court of Appeal stated:
The law with regard to striking out pleadings is not in dispute. Apart from truly exceptional cases the approach to such applications is to assume that the factual basis on which the allegations contained in the pleadings are raised will be proved. If a legal issue can be raised on the facts as pleaded then the courts will not strike out a pleading and will certainly not do so on a contention that the facts cannot be proved unless the situation is so strong that judicial notice can be taken of the falsity of a factual contention. It follows that an application of this kind must be determined on the pleadings as they appear before the court..[12].
[18] Seneviratne J offered the following helpful discussion of the authorities in South Pacific Metals Ltd v Silikiwai [2021] FJHC 386 (15 December 2021) at [5]:
In Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 3) [1970] Ch 506 it was held that the power given to strike out any pleading or any Part of a pleading under this rule is not mandatory but permissive, and confers a discretionary jurisdiction to be exercised having regard to the quality and all the circumstances relating to the offending plea.
In Drummond-Jackson v British Medical Association [1970] 1 W.L.R. 688; [1970] 1 All ER 1094 it was held;
Over a long period of years it has been firmly established by many authorities that the power to strike out a statement of claim as disclosing no reasonable cause of action is a summary power which should be exercised only in plain and obvious cases.
In the case of Walters v Sunday Pictorial Newspapers Limited [1961] 2 All ER 761 it was held:
It is well established that the drastic remedy of striking out a pleading or, part of a pleading, cannot be resorted to unless it is quite clear that the pleading objected to, discloses no arguable case. Indeed, it has been conceded before us that the Rule is applicable only in plain and obvious cases.
In Narawa v Native Land Trust Board [2003] FJHC 302; HBC0232d.1995s (11 July 2003) the court made the flowing observations:
In the context of this case I find the following statement of Megarry V.C. in Gleeson v J. Wippell & Co. [1971] 1 W.L.R. 510 at 518 apt:
“First, there is the well-settled requirement that the jurisdiction to strike out an endorsement or pleading, whether under the rules or under the inherent jurisdiction, should be exercised with great caution, and only in plain and obvious cases that are clear beyond doubt. Second, Zeiss No. 3 [1970] Ch. 506 established that, as had previously been assumed, the jurisdiction under the rules is discretionary; even if the matter is or may be res judicata, it may be better not to strike out the pleadings but to leave the matter to be resolved at the trial.”[13]
[19] Pathik J provided the decision in Narawa v Native Land Trust Board.[14] His Lordship further stated at page 4:
In considering this application I have also borne in mind the following passage from Halsbury’s Laws of England 4th Ed Vol. 37 para. 434 on ‘abuse of process’ which I consider pertinent:
“An abuse of the process of the court arises where its process is used, not in good faith and for proper purposes, but as a means of vexation or oppression or for ulterior purposes, or, more simply, where the process is misused. In such a case, even if the pleading or indorsement does not offend any of the other specified grounds for striking out, the facts may show that it constitutes an abuse of the process of the court, and on this ground the court may be justified in striking out the whole pleading or indorsement or any offending part of it . Even where a party strictly complies with the literal terms of the rules of court, yet if he acts with an ulterior motive to the prejudice of the opposite party, he may be guilty of abuse of process, and where subsequent events render what was originally a maintainable action one which becomes inevitably doomed to failure, the action may be dismissed as an abuse of the process of the court.”[15]
[20] The Court’s power to strike out a claim must be sparingly used and only in clear and obvious cases. A party ought not to be denied access to the courts unless the cause of action is so untenable that they cannot succeed. Even where a case appears weak, such that it is unlikely to succeed, this does not suffice to warrant striking out. It is, however, an abuse of the process of the court for a party to bring a case otherwise than in good faith or for proper purposes. A claim may be struck out for disclosing no reasonable cause of action. The facts must be taken as pleaded in the Statement of Claim unless admissions to the contrary by a plaintiff is deposed. An interlocutory application is not the time to resolve factual disputes.
[21] The primary cause of action pleaded against the Second and Third Defendants (as well as the First Defendant) is fraud. The Plaintiffs allege that the First and Second Defendants fraudulently made themselves shareholders of WG Ltd by using a document they knew to be forged to effect this. The Plaintiffs’ plead as follow:
[22] The Plaintiffs also plead that the transfer in June 2020 was irregular and unlawful. That the filing by the Third Defendant was in breach of s 242 of the Companies Act 2015 and reg 10 of the Companies Regulations 2015.[16]
[23] The allegations against the Third Defendant are:
[24] The share structure increase in WG Ltd is pleaded to have occurred in 2022, resulting in a significant share increase for both the First and Second Defendants. The Plaintiffs have alleged collusion on the part of the first three defendants.
[25] The elements for establishing fraud were discussed by the Supreme Court in Kuar v Singh [2022] FJSC 19 (29 April 2022). Gates J stated:
[51] Observations made in the speeches of the House of Lords on the subject of fraud in Bradford Third Equitable Benefit Building Society v. Borders [1941] 2 All E.R. 205 make for an important starting point. At p216H Lord Russell of Killowen said:
“To make a charge of fraud is a serious thing, and before people make it, they should be clear as to the grounds and facts upon which they rely and the basis of their charge.”
[52] Lord Wright at p218G cautioned:
“The importance of the established rule that fraud must be precisely alleged and strictly proved.”
In the instant case neither of these requirements were met. They fell well below the standard required.
[53] In the Bradford case the Plaintiff had been unable to connect the representative of the building society with a certain meeting and with other communication in which the contractors had made misleading statements, orally and in a brochure, claiming the society had given its support to their company. The Plaintiff failed before the High Court, succeeded in the Court of Appeal, and failed again before the House of Lords.
[54] Viscount Maugham set out at p211A the requirements of proof:
“My Lords, we are dealing here with a common law action of deceit, which requires four things to be established. First, there must be a representation of fact made by words, or, it may be, by conduct. The phrase will include a case where the defendant has manifestly approved and adopted a representation made by some third person. On the other hand, mere silence, however morally wrong, will not support an action of deceit: Peek v. Gurney (2), at p.390 per Lord Chelmsford, and at p.403, per Lord Cairns, and Arkwright v. Newbold (3), at p.318. Secondly, the representation must be made with a knowledge that it is false. It must be wilfully false, or at least made in the absence of any genuine belief that it is true: Derry v. Peek (4) and Nocton v. Ashburton (Lord) (5). Thirdly, it must be made with the intention that it should be acted upon by the plaintiff, or by a class of persons which will include the plaintiff, in the manner which resulted in damage to him: Peek v. Gurney (2) and Smith v. Chadwick (6), at p.201. If, however, fraud be established, it is immaterial that there was no intention to cheat or injure the person to whom the false statement was made: Derry v. Peek (4), at p.374, and Peek v. Gurney (2), at p. 409. Fourthly, it must be proved that the plaintiff has acted upon the false statement and has sustained damage by so doing: Clarke v. Dickson (7). I am not of course, attempting to make a complete statement of the law of deceit, but only to state the main facts which a plaintiff must establish.”
[26] The first allegation, then, by the Plaintiffs is that the First and Second Defendant, with the assistance of the Third Defendant, fraudulently transferred shares in WG Ltd to the First and Second Defendants, being 44% and 8%, respectively. They allegedly did so by copying and pasting the Plaintiffs’ signatures onto the 2019 Resolution from a Chinese agreement. The problem for the Plaintiffs with their allegations of fraud here is, put simply, the two Business Agreements dated 24 June and 25 June 2019. The two agreements demonstrate that the First and Second Defendants have a legitimate entitlement to the share transfer. Further, the transfer was to be made based on financial contributions already made (ie there was no requirement for the First and Second Defendants to make any further contributions). The content of the two agreements could not be clearer in this regard. The agreement of 24 June 2019 further provided that the transfers were to be effected within 7 days (which is consistent with steps taken by KPMG on behalf of WG Ltd in late June and July 2019 as per email communications[20]).
[27] If the Plaintiffs’ disputed the fact of the Chinese agreements of 24 and 25 June 2019 and/or the English translations, then this would need to be determined at trial. However, the Plaintiffs have accepted the fact of the Chinese agreements. Their position with respect to the English translations is unclear. The first named Plaintiff states that the English translation of the agreement of 24 June 2019 ‘requires the signatures of the plaintiffs and a notarized certificate before it can effect’.[21] However, the English translation does not purport to be anything other than a translation of the Chinese agreement. The translation does not require the Plaintiffs’ signatures. Only in the event that the Plaintiffs’ dispute the English translation as produced by the Third Defendant will some consideration need to be given to arranging for an independent and authorized translation. However, Mr Hu does not depose that he disputes the English translation. In fact, Mr Hu expressly states at paragraph 40 c of his affidavit dated 5 April 2024 that in respect to the English translation ‘the plaintiffs hereby confirm that we admit the contents’.
[28] The agreements of 24 and 25 June 2019 negate the Plaintiffs allegations of fraud against the First, Second and Third Defendants. If the English translation is correct, then the Plaintiffs’ claims of fraud in its Statement of Claim cannot succeed. It is as simple as that. The agreements verify that the First and Second Defendants have a legitimate entitlement to the shares in WG Ltd. As such, the Plaintiffs are required, for the purposes of the present summons to strike out, to clearly and unequivocally refute the correctness of the English translation of the agreements of 24 and 25 June 2019. They have not done so. As then Master Bull (now Bull J) stated in Fiji Public Service Association v Nabong [2017] FJHC 649 (24 July 2017), at 24:
It is now well settled that in evaluating affidavit evidence, the failure to contradict an issue, or reply specifically to a material allegation, is treated as an acceptance or admission of the said issue or allegation...
[29] The Plaintiffs’ failure to unambiguously refute the correctness of the English translation of the two agreements can only be taken as an admission by the Plaintiffs that the documents are accurate translations. Accordingly, the First and Second Defendants were entitled to the share transfer of 44% and 8% respectively. The transfer was, therefore, not fraudulent.
[30] The next allegation of fraud by the Plaintiffs pertain to the allegation that the First and Second Defendants with the Third Defendant's assistance, arranged for a share structure increase. According to the defendants, the changes were authorised by a shareholder resolution at an extraordinary general meeting, of which notification of the meeting was provided by email to the first named Plaintiff. The Plaintiffs accept this evidence.[22]
[31] In any event, the Plaintiffs have not particularized the alleged fraud here by the First, Second or Third Defendants. That is, no doubt, because, as counsel for the Plaintiffs’ acknowledged at the hearing, the allegations are premised on the initial share transfer having been fraudulent. If that transfer was not fraudulent, however, then the allegations of fraud in respect to the share restructure also cannot be fraudulent. Put another way, if the First and Second Defendants were entitled to the share transfer then they were authorised to pass company resolutions effecting a share restructure. There is, in my view, another piece of evidence of the Plaintiffs own making that undermine their allegations of fraud. They plead that they did not know of the share transfer. Their counsel argued at the hearing that the Plaintiffs believed that they remained the majority shareholder of WG Ltd when they were in China from 2019 to 2023. That contention does not hold water. In their letter to the Registrar of Titles dated 7 January 2021, they expressly stated ‘[w]e are also shareholders in WG International Real Estate Co (Fiji) Ltd as to 48% of that company’. They were, therefore, aware that they were not the majority shareholders of WG Ltd when they received notification of the extraordinary meeting in June 2021 to discuss the share restructure.
[32] There remains the allegation of fraud in respect to the sale of the property owned by A Plus at 193 Queen Elizabeth Drive. The allegation is that the Plaintiffs were unaware of the sale until their return in April 2023, and as per the pleadings, the First and Third Defendants allegedly signed the sale transfer as director and secretary when they had no such authority to do so. The first named Plaintiff also deposes in his affidavit dated 5 December 2023 that he is a shareholder of A Plus.[23]
[33] There are several problems for the Plaintiffs here. The first problem, again, is the agreement of 24 June 2019. The parties expressly agreed in that document that they would sell the Nasese property and use the sale proceeds for the construction project. The Plaintiffs are seen, from this document, to have knowledge of the sale from this agreement contrary to their pleading. Secondly, the Plaintiffs' have no locus standi. The Plaintiffs were not shareholders of A Plus. WG Ltd is the shareholder, not the Plaintiffs. If there was any fraud with respect to the sale of the Nasese property, it is WG Ltd that is harmed and entitled to recover, not the Plaintiffs. Thirdly, the First and Third Defendants did have authority to sign the transfer of the property in December 2020 as a result of resolutions passed in October 2020 by A Plus, making them directors and expressly authorizing the sale.
Summary
[34] The Plaintiffs case is straightforward. The First and Second Defendants forged their signatures on the 2019 Resolution. They could not have signed the Resolution as they left Fiji on 6 July 2019 and the signatures were purportedly signed on 28 July 2019.[24] The forged document was used by the First and Second Defendants to have their share transfer registered by the Registrar of Companies. With their fraudulently acquired shareholding the First and Second Defendants, with the assistance of the Third Defendant, were then able to arrange for the share restructure.
[35] With the exception, perhaps, of the allegation of the forged document each thread of the Plaintiffs allegations pertaining to the fraud has been shown by the First and Third Defendants to be untrue (on uncontested or admitted evidence). The most damning piece of evidence against the Plaintiffs’ allegations are the Business Agreements dated 24 and 25 June 2019. The allegation of the forged signatures does not suffice by itself to establish that the share transfer was fraudulent. Even if the signatures were forged, the First and Second Defendants were entitled to the share transfer. They were not required to make any cash investment.
[36] That being the case, to my mind the only issue is whether the circumstances of this case amount to an apparently weak case that is unlikely to succeed but should be left to go to trial, or the cause of action of fraud is so untenable so as to justify striking it out. I am satisfied that it is the latter. The agreements of 24 and 25 June 2019 are fatal to each allegation of fraud against the First, Second and Third Defendants pertaining to the share transfer and restructure in WG Ltd as well as the sale of the property at 193 Queen Elizabeth Drive. Further reinforcing that view has been the conduct of the Plaintiffs. Firstly, their failure to plead the fact of the agreements of 24 and 25 June 2019 which, surely, they must have realised was fatal to their claim. Secondly, their failure to produce (in any of these interlocutory applications, including their own earlier ex parte summons for injunctive relief) the Chinese agreements of 26 and 28 July 2019, which are fundamental to their allegations of fraud.[25]
[37] The result, in my view, is that the Plaintiffs simply cannot succeed with their cause of action in fraud against the First, Second and Third Defendants. With the Plaintiffs Statement of Claim stripped of its claim in fraud, the proceedings are reduced to the following allegations:
[38] The Plaintiffs’ allegations in [37] are bare in their details and require better particularization. I am faced with the question whether to strike out the entire claim or permit the Plaintiffs an opportunity to provide further and better particulars in respect to these allegations. I am conscious that striking out an entire claim should only be made in rare cases.
[39] While I have a concern about the Plaintiffs failure to disclose material facts in their pleadings, thus raising the issue as to whether their claim has been brought in good faith and for proper purposes, I will permit the Plaintiffs an opportunity to file an Amended Statement of Claim removing their allegations of fraud[30] and providing further and better particulars of the allegations in [37] above.
SUMMONS TO SET ASIDE INTERIM INJUCTIONS
[40] Ms. Tivao, for the Second and Third Defendants. made the following arguments:
[41] Mr. Jamnadas, for the First Defendant, provided lengthy and careful submissions, summarized as follows:
[42] Ms Tosokiwai, for the Plaintiffs, stated that she did not accept that the Plaintiffs did not have clean hands. She stated that the Plaintiffs claim is based almost entirely on the forged 2019 Resolution in that the Plaintiffs signatures could not have been made as their travel documents show they were not in Fiji at the time.
Decision on summons to set aside interim injunction
[43] In Sequitur Hotels PTY Ltd v Satori Holdings PTE Ltd [2020] FJHC 276 (3 April 2020) Stuart J cited[31] the following passages from the English Court of Appeal decision in Brinks Mat Ltd v Elcombe [1988] 1 WLR 1350, at 1356:
In considering whether there has been relevant non-disclosure and what consequences the court should attach to any failure to comply with the duty to make full and frank disclosure, the principles relevant to the issues in these appeals appear to me to include the following:
...
5. If material non-disclosure is established, the court will be ‘astute to ensure that a plaintiff who obtains (an ex parte injunction) without full disclosure ... is deprived of any advantage he may have derived by that breach of duty.‘...
[44] On an ex parte application ‘the applicant has a duty of candour’.[32] Unquestionably, the failure by the Plaintiffs to draw this Courts attention to the fact and content of the agreements of 24 and 25 June 2019 (during the hearing of the ex parte application) is unfathomable. The agreements of 24 and 25 June 2019 are central to, and undermine, their allegations of fraud. That will be clear from my decision on the summons to strike out the claim. I can only conclude that the omission by the Plaintiffs was deliberate. The failure to disclose and/or produce the agreements was a material non-disclosure by the Plaintiffs. The failure justifies setting aside the interim injunctions.
[45] A further reason for this Court to dissolve the injunctive orders stems from the Plaintiffs’ affidavit containing their undertaking as to damages. In my earlier judgment granting the injunctive orders, I stated that the decision was subject to the following:
The Plaintiffs are to file and serve by or before 4pm on 19 January 2024 an affidavit providing an undertaking as to damages for these interim injunction orders and supplying information demonstrating their ability to satisfy such undertaking.
[46] The first named Plaintiff deposed such an affidavit on 18 January 2024. The matter of setting out a deponent’s financial circumstances, in order to demonstrate their ability to pay damages, ought to be straightforward. Their financial ability may be demonstrated by way of bank statements or titles to property, or other assets. No such details are provided by the Plaintiffs. Indeed, I am unable to glean the Plaintiffs’ financial circumstances from the content of the affidavit for the first named Plaintiff. As such, I cannot accept that he has demonstrated the Plaintiffs’ ability to satisfy any undertaking as to damages.
Orders
[47] Accordingly, I make the following orders:
.....................................
D. K. L. Tuiqereqere
JUDGE
Solicitors:
Vosarogo Lawyers for the Plaintiffs
Jamnadas & Associates for the First Defendant
Shirley Lavenia Susan Legal for the Second & Third Defendants
Office of Attorney-General’s Chambers for the Fourth & Fifth Defendants
[1] Hu v Ding [2023] FJHC 912 (19 December 2023).
[2] Copies of each of the Chinese agreements along with an English translation have been produced by the First and Third Defendants.
[3] Paragraph 11 of Plaintiffs’ Statement of Claim and paragraph 11 of Mr Hu’s affidavit dated 5 December 2023. The Plaintiffs
have not produced a copy of these agreements.
[4] The Registrar refuses to register a caveat as the Plaintiffs are not recorded as directors of A Plus.
[5] The Plaintiffs’ do not particularise how the Third Defendant’s conduct was fraudulent (or unlawful).
[6] The Second and Third Defendants are represented by the same solicitors.
[7] The First Defendant filed an Amended Defence and Counterclaim on 22 November 2023.
[8] The first affidavit is dated 23 December 2023 and a Supplementary Affidavit is dated 18 January 2024.
[9] As per para 40 d of Mr Hu’s Affidavit dated 5 April 2024.
[10] Counsel suggested that the Court disregard this admission by Mr Hu.
[11] My emphasis.
[12] My emphasis.
[13] My emphasis.
[14] [2003] FJHC 302 (11 July 2003).
[15] My emphasis.
[16] The Plaintiffs do not disclose how the transfer breached these provisions.
[17] The Plaintiffs now accept that they were notified of the meeting.
[18] The Plaintiffs now accept that a meeting was convened.
[19] This allegation is contradicted by the Plaintiffs’ letter of 7 January 2021 to the Registrar of Titles showing they were then
aware of the sale.
[20] The Plaintiffs do not dispute these email communications with KPMG; para 36 of Mr Hu’s affidavit dated 4 April 2024.
[21] Para 40 c. i. of Mr Hu’s affidavit for Striking Out dated 5 April 2024.
[22] At paragraph 40 d. of Mr Hu’s affidavit dated 5 April 2024.
[23] At 26.
[24] I am not sure why the Plaintiffs needed to have been in Fiji to sign the Resolution. The Defendants signed the same document in
April 2018 so there was no need for them to have been in the same country when the Plaintiffs signed the document.
[25] Pleaded at paragraphs 11 and 16 of the Statement of Claim.
[26] Paragraphs 10, 15, and possible 20 of the Statement of Claim.
[27] Paragraph 43 of Statement of Claim.
[28] Paragraph 22 of Statement of Claim.
[29] Paragraphs 41 and 42 of Statement of Claim.
[30] At paragraphs 9-18, 20, 36, 39-40, & 44-48 of the Statement of Claim. The Plaintiffs’ relief will also need to be amended
to reflect the changes.
[31] At 27.
[32] Madsen v Darmali [2024] NSWSC 76.
[33] See [39], footnote 30.
[34] See [39].
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