Park Ei Jun v Jun Mook Jun [1999] FJHC 157; HBC129.1999 (31 August 1999)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 129 OF 1999

BETWEEN:

PARK EI JUN
Plaintiff

AND:

JUN MOOK JUN
AVON INVESTMENTS LTD
Defendants

Counsel: Mr K Bulewa for Plaintiff
Mr A Tikaram for 1st Defendant.
R Patel & Co for2nd Defendant.

Hearing: 24th August 1999
Decision: 31st August1999

DECISION

This is an application by the 1st and 2nd Defendants for the removal of Caveat No. 444775 by Notice of Motion, dated 3rd May 1999, supported by the affidavit of Jung Mook Jun.

Briefly, the facts as alleged in the statement of claim are that the Plaintiff is the sister of the 1st Defendant. She is resident in Korea. On or about the 25th of January 1991 a Deed of Agreement was executed between the Plaintiff and the First Defendant to acquire shares in the Southern Cross Hotel, which were to be held on her behalf by the first Defendant, to be transferred to the second Defendant. According to the Agreement the first Defendant was to obtain Reserve Bank consent for the acquisition of such shares.

The Plaintiff then claimed that the first Defendant had failed to secure Reserve Bank consent, failed to register the allotment of shares with the Registrar of Companies and failed to register the Plaintiff as a Director of Avon Investments Ltd, the second Defendant.

It is also claimed that by a second Deed of Agreement dated 5th July 1993 the Plaintiff and the first Defendant again agreed that the Plaintiff should hold 75% shares in Tambua Sands Beach Resort to be acquired by the first Defendant on her behalf.

The Plaintiff claimed that she paid substantial sums of money to the first Defendant to acquire the Tambua Sands Resort and other asset, and that a further memorandum of understanding was entered into with the first Defendant on 5th May 1995, when the Plaintiff discovered that she still held no shares in Avon Investments and that she was still was not registered as a Director. It was agreed by virtue of this memorandum that the Plaintiffs representative take over the management of the Tambua Sands Resort.

The Plaintiff then appointed her son Jae Sik Kang to manage the Resort. However, on 4th October 1995 the first Defendant through the ANZ Bank required all cheques from the resort to be counter-signed by the first Defendant and on 30th October 1995, the first Defendant purported to terminate the position of Jae Sik Kang as manager of the resort.

On 28th August 1998, the Plaintiff registered a caveat (No.444775) in respect of CT 29018. On the Plaintiff's application the caveat was extended by Pathik J on 9th April 1999.

The application before this court is for the removal of the caveat. At the hearing of the application, Mr A Tikaram relied on the affidavit of Jun Mook Jun filed on 3rd May 1999. That affidavit states that the Deed of Agreement and the Memorandum of Understanding were subject to various conditions that had not been satisfied by the Plaintiff. The affidavit further states at paragraph 8 that:-

".... the Plaintiff has no interest in the second Defendant's property known as Certificate of Titles No. 29018 and therefore deny that there is any risk to her alleged investment. It further state that the Plaintiff has ....an almost identical claim as this in Lautoka High Court in Civil Action No. 358 of 1995 but due to the Plaintiff's failure to adduce evidence to show whether or not Plaintiff paid any money to the first and second Defendants and whether the approval of the Reserve Bank had been obtained and for what purpose the plaintiff was obliged to discontinue the whole of her claim in Civil Action No. 358 of 1995 on 13the March 1996".

Counsel has provided the court with a copy of writ of summons in respect of the discontinued action. It is identical to the claim before this court and was discontinued by the Plaintiff on 13th March 1996.

The Plaintiff did not appear, nor did counsel appear for her, on the hearing of this application. However, an affidavit of Jae sik Kang was filed on 17th June 1999. That affidavit states that since the second defendant is now in receivership and the first defendant has now been restrained from handling the assets of the company by injunction dated 25th May 1999, the first Defendant had no longer has standing to apply for the removal of the caveat.

Mr R Patel appeared for the Receivers of the second Defendant and adopted the submissions of the first Defendant in respect of the transactions between the Plaintiff and the first Defendant.

It is clear from the papers before me that the Plaintiff has failed to show a caveatable interest. The answering affidavit of Jae Sik Kang fails to adduce any evidence of the Plaintiff paying for any of the shares referred to in the Deed or the Memorandum of Understanding. Furthermore, both documents are clearly conditional. There is no evidence before me that either of the Defendant's or the receivers for the 2nd Defendant accepted any money from the Plaintiffs as consideration for the shares.

As such, I am satisfied that the Defendants have shown sufficient grounds to justify the removal of caveat No. 444775 in respect of CT 29018 and I so order. If the Plaintiff subsequently succeeds in her action against the defendants, she can in any event be compensated by damages.

The costs of this application are to be paid by the Plaintiff to be taxed if not agreed.

[Nazhat Shameem]
JUDGE

At Suva
27th August, 1999