Basic Industries Ltd v Metromix Concrete Company Ltd [1997] FJHC 22; Hbc0273.96s (6 February 1997)

Fiji Islands - Basic Industries Ltd v Metromix Concrete Company Ltd - Pacific Law Materials

IN THE HIGH COURT OF FIJI

(AT SUVA)

CIVIL ACTION NO. HBC 273 OF 1996s

BETWEEN:

BASIC INDUSTRIES LIMITED
Plaintiff

AND:

METROMIX CONCRETE COMPANY LIMITED
1st Defendant

AND:

MOHAMMED YASIN
2nd Defendant

J. Howard for the Plaintiff
No appearance by the 1st Defendant
A.H.C.T. Gates for the 2nd Defendant

DECISION

This is an Application:

(a) for leave to appeal against Decisions and an Order made by me on 4 December 1996; and

(b) for a stay of execution of my Order for payment into Court by the 2nd Defendant of a sum of $349,413.20 the subject of the dispute and Action between the parties.

On 4 December 1996 I dealt with Cross-Applications by the parties. They were:-

(a) an Application by the 2nd Defendant that an affidavit deposed on behalf of the Plaintiff by Patrick Cridland and filed on 30 October be struck out on the grounds that it was scandalous, vexatious and an abuse of process; and

(b) an Application by the Plaintiff for the sum in dispute to be paid into Court.

Having heard argument I delivered the following ex tempore Decisions and Order:

As to the Application to strike out:

"Given the Defence filed and the fact that the solicitors for the two Defendants are subject to their client's instructions I do not find the fear of dissipation of the funds in dispute expressed by the Plaintiff to be scandalous or vexatious. There is no allegation of dishonesty against the 2nd Defendants Solicitors Messrs Maharaj Chandra & Co. The first Application fails."

As to the Application for payment into Court:

"In all the circumstances of this case as presently revealed by the affidavits, the pleadings and the particulars I am satisfied that there is a real risk that the sum in dispute may be dissipated by the 2nd Defendant before the Action can be tried. I accordingly order that the sum of $349,413.20 be paid into Court forthwith."

Upon delivering the Order Mr. Gates asked that it be suspended but in the absence of any undertaking by him on behalf of the 2nd Defendant not to deal with the funds I declined his request.

Paragraph 4.2 of an affidavit deposed by the 2nd Defendant on 11 December (which of course was not before me on 4 December) in my view provides further support for the conclusions which I reached.

Before dealing with the present Application I think it should be noted that my forthwith Order for payment in has not been obeyed. The difficulty of obtaining an early appointment to make the present Applications does not, in my view, provide a completely satisfactory explanation.

Applications for leave to appeal to the Fiji Court of Appeal against interlocutory orders must first be made to the High Court (FCA Act-Cap 12-Section 12(2)(f) and Rule 26(3)) but it has long been settled and well established that the exercise of discretion on a point of practice or procedure will only be interfered with by an Appellte Court in "the most exceptional circumstances" (see e.g. Evans v Bartlam [1931] AC 473; In re the Will of F.B. Gilbert (dec'd) [1946] NSWStRp 24; (1949) 46 S.R. (NSW) 318, 323 and Kelton Invs. v CAA FCA Reps. 95/218) and that by granting leave the lower Court will be taken to be encouraging the appeal (Hubball v Everitt & Sons Ltd (1900) TLR 168).

On 4 December 1996, having examined the papers before me and heard counsel I formed a view as to the risk of the funds in question being dissipated. The further information provided in support of these Applications if anything reinforces the view I had earlier reached. Mr. Gates advances the proposition that RHC O 29 r 2(3) does not apply to the present facts and that the principles governing the granting of a Mareva injunction are applicable. In reaching my earlier decision I however rejected this argument and in my opinion there is no scope or occasion now to re-argue the issue.

On the question of stay Mr. Gates suggested that if the sum in dispute were not left in Messrs Maharaj Chandra's Trust Account then the interlocutory appeal would be rendered nugatory. With respect I do not agree. In the event that the Fiji Court of Appeal grants leave to appeal and upholds the 2nd Defendant then the sum safely lodged in Court can be immediately paid out. The Application for a stay is really no more than a second attempt to have my Order for payment in suspended. In the continuing absence of any undertaking it is again refused.

I find no merit in either of these Applications. They are both dismissed.

M.D. Scott
JUDGE

6 February 1997

Hbc00273.96s