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Juxta Beach (Fiji) Ltd v Extreme Sport Fishing (Fiji) Ltd [2026] FJHC 153; HBC240.2017 (13 March 2026)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Consolidated Civil Actions No HBC 240 of 2017 and 49 of 2020

BETWEEN:
JUXTA BEACH (FIJI) LIMITED a limited liability company having its registered office at 74 Ellis Place, Fantasy Island, Nadi
Plaintiff

AND:
EXTREME SPORT FISHING (FIJI) LIMITED a limited liability company having its registered office at HLB Crosbie & Associates, Chartered Accountants, Top Floor, HLB House, 3 Cruickshank Road, Nadi Airport, trading as FANTASIA RESORT.
1^st Defendant

AND:
FIJI ELECTRICITY AUTHORITY

2^nd Defendant

Appearances: Mr. A.K Narayan for the Plaintiff
Ms. Raman for the Official Receiver
Ms. Prasad for the 2^nd Defendant
Date of Hearing: 13 March 2026

R U L I N G

1. The first defendant is a wound up company. Years after the granting of the winding up order, the plaintiff instituted these actions. Years after instituting these actions, the plaintiff was to learn of the winding up order against the first defendant.
   
2. Section 531 of the Companies Act provides:
   

531.When a winding up order has been made or an interim liquidator has been appointed under section 537, no action or proceeding must be proceeded with or commenced against the Company, except by leave of the Court and subject to such terms as the Court may impose.

3. The issue before me is whether or not this Court has a discretion under section 531 to grant leave in the following scenario, where:
   
   • (i) the action was instituted years following the granting of the winding up order.
   • (ii) the official receiver was appointed liquidator before the action was instituted.
   • (iii) the plaintiff had not sought, let alone obtained leave, prior to filing the writ of summons and statement of claim.
     
4. I have considered the arguments raised and the submissions made. Guided by the statutory purpose of section 531, the comparative jurisprudence in analogous jurisdictions raised by counsel, I do agree with Mr. Narayan’s submissions that, as a matter of principle, the Court does retain a discretion to grant leave in the circumstances.
   
5. The question, therefore, is whether such discretion ought properly to be exercised in the circumstances of this case. The plaintiff’s delay in instituting proceedings years after the winding-up order, coupled with the failure to obtain prior leave either from the Official Receiver or this Court, raises serious equitable considerations.
   
6. The statutory purpose of section 531 is to safeguard the collective interests of creditors and to ensure the orderly conduct of the liquidation. To exercise discretion in favour of the plaintiff notwithstanding such delay would require compelling justification, and the Court must weigh whether any prejudice to the liquidation process or to creditors would result.
   
7. Both counsel had agreed that I should rule on the principle first and, depending on my ruling, to then schedule another date for argument as to whether or not my discretion ought to be exercised in favour of granting leave.
   
8. In light of the view which I have expressed above (paragraphs 3 to 5), I will now make directions for the filing of affidavits, if need be, and schedule a hearing date on whether or not I should grant leave for these proceedings to continue.
   
9. In acknowledgement of the advocacy of all counsel, and in deference to the detailed submissions and arguments raised, as well as the seriousness of the discretion which I am now called upon to exercise, I shall reserve my full discussion on the points raised during argument last week. These will be addressed in detail in my Ruling on whether or not I should grant leave.
   
10. Parties to bear their own costs.
    

........................................

Anare Tuilevuka

JUDGE

20 March 2026