Cul (Fiji) Ltd v Westmall Ltd [2011] FJCA 9; Misc.01.2011 (11 February 2011)

IN THE COURT OF APPEAL, FIJI ISLANDS

MISCELLANEOUS ACTION 1 OF 2011

BETWEEN:

CUL (FIJI) LIMITED
Appellant

AND:

WESTMALL LIMITED
Respondent

Date of Hearing: Friday, 11th February 2011

Counsel: Mr F Hanif for the Appellant
Mr A Patel for the Respondent

Date of Ruling: Friday, 11th February 2011

RULING

1. Informed that since 2004 Westmall Limited is subject to a winding up order – not clear but probably a receiver appointed. There are consequences. It seems that erstwhile Director and his agents have carried on litigation on behalf of the company without authority. I accept that Mr Anu Patel was unaware of receivership and had checked with OR but with negative result. He discovered and came to know the matter on 10th February 2011 although the fax from O'Driscoll & Co. is dated 30th October 2008.
   
2. In the circumstances the receiver must elect to continue the litigation or to abandon it. Consequently all further proceedings in the High Court must be stayed until the single judge decides whether the motion for leave to appeal should be acceded to or not. Single judge cannot proceed with the matter of leave to appeal until satisfied that receiver with full comprehension of the situation has made his election.
   

Orders

(1) Proceedings in 175 of 2001 stayed until granting or refusal of leave to appeal to CUL (Fiji) Limited. Stay to include orders for substantive trial ordered by Inoke J in the Court below for dates of 19th and 20th April 2011.

(2) Direct that those conducting litigation on behalf of Westmall Limited prepare a report in writing of what has happened to the Official Receiver as soon as possible with copies to CUL (Fiji) Limited and to the Single Judge of the Court of Appeal within 21 days.

(3) I further direct that those conducting this action on behalf of Westmall Limited receive instructions from the Official Receiver and communicate such instruction upon receipt to CUL (Fiji) Limited and the Single Judge of the Court of Appeal without delay.

(4) Costs in any event of today to CUL (Fiji) Limited.

William R. Marshall
Resident Justice of Appeal