Burns Philp Shipping Ltd v Sharma Industries Ltd [1994] FJHC 121; Hbe0062d.1993s (16 September 1994)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

COMPANIES ACTION NO. 62 OF 1993

IN THE MATTER OF SHARMA INDUSTRIES LIMITED

AND

IN THE MATTER OF THE COMPANIES ACT SECTION 221

Between:

BURNS PHILP SHIPPING LIMITED
Petitioner

- and -

SHARMA INDUSTRIES LIMITED
Respondent

Mr. S. Parshotam for Petitioning Creditor
Mr. S. Verma for the Company/Debtor

DECISION

This action is a Petition of BURNS PHILP SHIPPING LIMITED (hereafter called the 'Petitioner') to wind up SHARMA INDUSTRIES LIMITED (hereafter called the "Company") instituted in the High Court at Suva.

The matter before me is the Company's Motion dated 28 July 1994 for the transfer of this action to the High Court at Lautoka on the grounds set forth in the Affidavit of JAGDISH PRASAD SHARMA (hereafter referred to as "SHARMA") the managing director of the Company sworn 23 July 1994.

The application is opposed by Mr. Parshotam for the Petitioner.

In item 3 of the said affidavit the grounds for transfer essentially are that: (a) the petitioner wrongly issued the petition out of the High Court, Suva (b) the Company's registered Office is at Nadi and is wholly a Nadi based company in the Western Division and (c) the subject-matter of the Petition "arose/occurred as a result of transactions which took place between the company and the Petitioner in Nadi". MR SHARMA further states that a Writ Of Summons is ready to be issued (copy whereof is annexed to the said affidavit) at High Court, Lautoka wherein the cause of action arose out of this transaction and because the matters deposed to in the various affidavits in this action and the matters raised in the Statement of Claim by the company in the action to be issued at High Court, Lautoka have bearing on each other they "need to be considered and resolved together".

Mr. Parshotam argues that it does not matter where the Petition is filed. He says that winding up matters are dealt with under the Companies Act Cap. 247 and the Companies (Winding Up) Rules, 1983. Neither under the Act nor under the Rules is there any provision for venue for the hearing of Petition to wind up a company. He further stated that the matter before the Court has "come a long way" since the time the Petition was filed in August 1993 with Affidavits having been filed in opposition to the Petition; the Petition is ready to be heard on affidavit evidence alone. He says that no purpose will be served in transferring the hearing to High Court, Lautoka. He referred the Court to NATIONAL MUTUAL HOLDINGS PTY LTD & OTHERS v SENTRY CORPORATION AND ANOTHER (July 1988 - Federal Court of Australia) where it was held:

"(ii) In deciding applications in the nature of "change of venue" in a national court such as the Federal Court of Australia, the test of manifest preponderance of convenience was not appropriate and the proper test is: Where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court?"

Application to wind up a company is governed by the COMPANIES ACT CAP 247 (hereafter referred to as the 'Act') and the COMPANIES (WINDING UP) RULES, 1983 (hereafter referred to as the "Rules"). RULE 3(1) of the RULES provides:

"3 - (1) Subject to the provisions of this rule, these Rules shall apply to the proceedings in every winding up under the Act which commences on or after 1 January 1984, and to all proceedings under section 212 of the Act."

Neither the Act nor the Rules provides for venue for the hearing of a petition to wind up apart from S.219 of the Act which states that the Supreme Court (now High Court) shall have jurisdiction to wind up any company registered in Fiji by petition presented to the Court (S. 222).

Here the question of venue arises because of the fact that there is a High Court in Suva and one at Lautoka in the Western Division apart from there being one at Labasa in the Northern Division and also because Order 4 1(1) of the High Court Rules, 1988 provides as follows:

"1 - (1) Proceedings must ordinarily be commenced in the High Court registry located in the Division in which the cause of action arises. Where a cause of action arises in the Eastern Division proceedings must ordinarily be commenced in Suva".

Despite the provisions of Order 4 Rule 1(1) Mr. Parshotam thought fit to institute proceedings at Suva and the Petition was accepted by the Registry for issuing.

Now, upon reading the affidavit of Mr. Sharma, particularly in items 3(ii) and (iii) in support of the motion for transfer, the action in my view should have begun in the Western Division.

The file in the action reveals that the Company had always wanted the action transferred to Lautoka. The first indication of this is in the Affidavit in Opposition filed 26 October 1993. The matter was then adjourned from time to time to enable the Company to make a formal application for transfer which it finally did on 28 July 1994 that is after a lapse of nine months after filing 'Affidavit in Opposition'.

Be that as it may, there is nothing to prevent the High Court at Suva from hearing the Petition for Or.4 R.1(1) merely says:

"proceedings must ordinarily be commenced in the High Court registry located in the Division in which the cause of action arises". (underlining mine).

Having regards to all the circumstances and the nature of case to be heard and the chronology of events leading up to the present application, although this action is a proper one to be transferred to Lautoka, but for the reason that no useful purpose will be served by delaying the hearing any further because of the lateness of the application, the action being ready to be heard on affidavit evidence alone, in the exercise of my discretion I shall hear the Petition and Opposition to it without transferring it.

For the reasons given hereabove the motion to transfer the action to High Court at Lautoka is refused with costs against the Company.

D. Pathik
Judge

Suva
16 September, 1994

HBE00062D.93S