Tasman Asia BV v Tui Motors Corporation Ltd [1991] FJHC 64; Hbc0441j.91s (12 December 1991)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. 441 OF 1991

IN THE MATTER of Order 17 of the High Court Rules 1988.

AND IN THE MATTER of an Application by TASMAN ASIA B.V.
for interpleader relief against the claims of TUI MOTORS CORPORATION LIMITED AND ISIRELI FA and KEN WILLIAMS in respect of the chattels contained in Containers TPHU 6122995 and ICSU 3745160 lying at Suva Wharf.

BETWEEN:

TASMAN ASIA B.V.
of Hogehilweg 20, 1101 CD Amsterdam, Z.O., Netherlands
Plaintiff

AND:

TUI MOTORS CORPORATION LIMITED
a Company incorporation in Fiji having
its registered office in Suva
1st Defendant

AND:

ISIRELI FA
of Suva, Solicitor
2nd Defendant

AND:

KEN WILLIAMS
of Suva, Businessman
3rd Defendant

Mr. J.G. Singh: For the Plaintiff
Mr. Tevita Fa: For 1st and 3rd Defendants
Mr. P. Knight: For 2nd Defendant

Dates of Hearing: 10th and 15th October 1991
Date of Judgment: 12th December 1991

INTERLOCUTORY JUDGMENT

I have before me an Interpleader Summons issued on behalf of the Plaintiff seeking directions as to the disposition of the contents of two containers, Nos. TPHU 6122995 and ICSU 3745160 which arrived in Suva on the vessel T.A. Voyager from Osaka, Japan on 14th of March 1991 and have since that date been at Suva Wharf. The containers contain used engines and automotive parts and are said to be valued at $F43,770.00.00.

The Plaintiff is the lessee of the two containers, whose contents I shall henceforth term "the goods". The shipper of the goods under the two Bills of Lading was Sato Shoten Co. Ltd. of Tokyo, Japan hereafter called 'the shipper" and the Consignee was "to order" with the 1st Defendant named therein as "Notifying Party". The Bills of Lading are held by the 2nd Defendant who claims to have been wrongfully dismissed as Managing Director of the 1st Defendant.

It is common ground that on or about the time of shipment from Japan differences arose between the 2nd Defendant and his brother Tevita Fa concerning the management and/or control of the 1st Defendant as a result of which litigation was commenced in Civil Action No. 234 of 1991 in which the 1st and 2nd Defendants are Plaintiffs and Mamoru Takahashi and Tevita Fa are Defendants and Civil Action No. 240 of 1991 in which the 1st Defendant is Plaintiff and the 2nd Defendant is Defendant.

As a result of the differences which have arisen within the 1st Defendant Company, the goods have not been cleared by the 1st Defendant as they are the subject of competing claims between the 1st Defendant and the 2nd Defendant and are incurring demurrage and other charges.

On the 28th of May 1991 the solicitors for the 2nd Defendant wrote to the Manager of the Pacific Forum Line, Mr. Ormond Eyre, stating that Mr. Takahashi had purported to change the name of the consignee of the goods and requesting Mr. Eyre to ensure that the goods were not released to anyone other than the 1st Defendant or the 2nd Defendant.

On or about the 29th of May 1991 Mr. Eyre received from the Shipper a Letter of Indemnity authorising the Plaintiff to release the goods to the 3rd Defendant, Mr. Ken Williams of Kimberley Street, Suva.

On or about the 30th of May 1991 Mr. Eyre received a letter of that date from the solicitors for the 3rd Defendant confirming that Mr. Williams was to be regarded henceforth as a consignee of the containers and requesting the goods to be released to the 3rd Defendant.

On the 25th of July 1991 in response to a letter Mr. Eyre had written to the Customs Department on the 5th of July the Department refused the Plaintiff permission to release the containers on the ground that it did not wish to be a party to any legal proceedings pending before the Courts and stating that it would advertise the goods for sale at an auction sale unless the Court made an order restraining auction.

It is also common ground between the parties that the Plaintiff's only interest in the goods is for its charges and goods and it also has an interest as lessee in the containers in which the goods are at present stored.

The Plaintiff is willing to dispose of the goods as this Court may direct. I have read the affidavits filed on behalf of the parties and the submissions made on behalf of all the parties. It is unnecessary to refer to the affidavits at any length except to say that there are obviously many matters of disagreement between the 1st and 2nd Defendants. Sooner or later one would expect these differences to be resolved in the other proceedings I have mentioned namely Civil Action Nos. 234 and 240 of 1991. This of course does not concern the Plaintiff. There is evidence before me that up to 15th of October 1991 the Plaintiff has become liable for charges in relation to the goods amounting to a total at that date of $19,056.84. In addition the Plaintiff claims that it has not yet been paid the sum of $US4,635.00 for freight charges. It requests that the release of the goods to any of the Defendants should be subject to payment of these freight charges and the other charges mentioned. The 1st and 3rd Defendants submit that the Court should direct the containers to be delivered to the 3rd Defendant and that he be free to sell the contents and remit from the proceeds the amount owing to ZEN EXPRESS (JAPAN) LIMITED, the vendor of the goods.

The 2nd Defendant requests that the Court do not authorise the 3rd Defendant to sell or dispose of the goods until the completion of the proceedings in Action Nos. 234 and 240 of 1991 or until further order. It is said that in this way all parties' interests will be protected, whereas if the goods are disposed of the positions of the 1st and 2nd Defendants could be prejudiced.

Alternatively, the 2nd Defendant says that he would be quite happy with an order allowing the containers to be emptied to enable the Plaintiff to get them back and the goods be stored either by the Court or by some neutral third party pending the disposal of Action Nos. 234 and 240 of 1991 or further order.

In my judgment for the Court to accede to the requests of either of the Defendants would pay scant regard to the interests of the Plaintiff, who, as in all Interpleader proceedings, is the innocent bystander. Accordingly in my judgment I must first protect the interests of the Plaintiff and, with a view to ensuring that, I make the following orders:

(1) The goods in the two containers be delivered within seven days into the custody of the 3rd Defendant.

(2) Thereafter the 3rd Defendant request the Sheriff of this Court to auction the goods for a price of not less than $F43,770.00 or such lesser price as this Court may approve.

(3) I direct that the said auction take place no later then the 27th day of January 1992 or on such other date as the Court may approve on any request being made to it by the Sheriff and the parties.

(4) The proceeds of any auction or sale of the goods to be paid into this Court and thereafter disbursed first in payment of all amounts including legal costs owing to the Plaintiff and thereafter held in this Court until the determination of all proceedings between the 1st and 2nd Defendants currently before this Court. On such conclusion the amount then remaining in Court to be paid out in accordance with any directions given by the Court.

(5) There be liberty to apply by all parties and the Sheriff of this Court.

I appreciate that by the date of auction the wharfage charges being incurred by the Plaintiff will have increased and the Plaintiff is to notify the Court, the Sheriff and the Defendants of the amount of such increase. I also order that the Defendants are to pay the Plaintiff its costs on a solicitor and client basis, the amount thereof to be either agreed or taxed in the absence of any agreement.

John E. Byrne
J U D G E

HBC0441J.91S