Maxtreme Builders Pte Ltd v RC Manubhai & Co [2024] FJCA 238; ABU029.2021 (9 December 2024)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]

CIVIL APPEAL NO. ABU 029 of 2021
[High Court Case No. HBE 14 of 2020]

BETWEEN

MAXTREME BUILDERS PTE LIMITED

Appellant

AND

RC MANUBHAI & COMPANY
01^st Respondent

WILLIAM & GOSLINGS
02^nd Respondent

AJAX SPURWAY FASTENERS PTE LTD
03^rd Respondent

Coram : Prematilaka, RJA

Counsel : Messrs. S. Nand Lawyers for the Appellant
: Messrs. Samuel Ram Lawyers for the Respondents

Date of mention : 16 October 2024
Date of Ruling : 09 December 2024

RULING OF THE COURT IN CHAMBERS

[1] This is an appeal against the judgment dated 26 February 2021^[1]making a winding up order in terms of section 523 of the Companies Act 2015.

[2] Security fort cost had been ordered on 01 November 2021 to be paid within 28 days. The Chief Registrar had further directed the appellant to file records as per Practice Direction No. 01 of 2019 i.e. within 42 days of the receipt of transcript and/or the judge’s notes.

[3] The appellant had uplifted draft records vetted by the Court of Appeal Registry on 23 February 2023 but not submitted the final records for certification to date. On 01 October 2024, despite objections on behalf of the 01^st and 03^rd respondents who wanted an order for the abandonment of the appeal, in the presence of lawyers for all parties this court granted 07 days for the appellant to inform this court as to why they had failed to submit the records for certification.

[4] When the matter was called on 08 October 2024, appellant’s counsel informed court that the only director of the company had passed away on 16 September 2023 and probate had been issued to his son who is a student and unfamiliar with running the affairs of the company. The counsel for respondents again sought an order for the abandonment of the appeal. This court allowed final 07 days for the appellant to submit the records for certification by the Chief Registrar failing which the appeal to be deemed abandoned.

[5] When the appeal was mentioned on 16 October 2024, the appellant company was unrepresented by its lawyers and no representative of the company was present. The counsel for the 01^st and 03^rd respondents moved for an order that the appeal be deemed abandoned in terms of Rules 18(10) of the Court of Appeal Rules and security fort cost be paid to the 01^st and 03^rd respondents or their solicitors. S. Nand Lawyers had filed summons and an affidavit seeking leave to withdraw as counsel on 18 October 2024.

[6] The primary responsibility for the preparation of the record on the appeal rests with the appellant [see Rule 18(1) of the CA Rules]. Once the appellant had uplifted the vetted records from the CA Registry the sole responsibility for the records to be submitted for certification by the Chief Registrar was with the appellant. Once the Chief Registrar certifies the record, the rest of the steps given in Rule 18(8), paragraph 4(1) of Practice Direction 01 of 2018 and paragraph 5 of Practice Direction 01 of 2019 should follow until it is placed for a call-over date for the appeal to be fixed for a date and time of the hearing by the Full Court. In terms of Rule 5 of PD No. 01 of 2019, the appeal records should have been lodged with the Chief Registrar for certification within 42 days of the receipt by the appellant of the transcript of the sound recording and or the judge’s notes of evidence. The appellant has not only not filed the records within the said stipulated time but also failed to file them after being granted time by this court in open court twice. On the last occasion neither the appellant nor its lawyers were even present in court.

[7] Since Practice Direction 01 of 2019 must be read with Practice Direction 01 of 2018 and Rules 18 and 18A of the Court of Appeal Rules, Rule 18(10) would make Rule 17(2) and (3) apply to the appellant’s non-compliance as if the non-compliance is non-compliance with Rule 17(1) of the Court of Appeal Rules. The consequence for such non-compliance is that the appeal is deemed to be abandoned, but a fresh notice of appeal may be filed as specified. As per Practice Direction 01 of 2023 in whatever circumstance an appeal is marked as ‘having been abandoned’ it must be submitted for the sanction of a Justice of Appeal and a ‘notice of abandonment’ must be sent to the party affected.

Orders of court

[1] Appeal is deemed abandoned and it should be marked ‘abandoned’.

[2] Notice of abandonment should be sent to the appellant and its solicitors.

[3] If the appellant does not take steps in terms of Rule 17(2) (b) of the Court of Appeal Rules, security for cost of $3000.00 should be paid to the solicitors for the 01^st and 03^rd respondents equally as if it is a cost ordered by this court to be paid by the appellant to the 01^st and 03^rd respondents.

Hon. Mr. Justice C. Prematilaka

RESIDENT JUSTICE OF APPEAL

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[1] Maxtreme Builders Pte Ltd, Re [2021] FJHC 154; HBE14.2020 (26 February 2021)