Mao Nai Fu v Peng [2001] FJHC 65; Hbc0349d.2000s (4 September 2001)

Fiji Islands - Mao Nai Fu v Peng - Pacific Law Materials

ass=MsoBodyText align=cign=center style="text-align: center; margin-top: 1; margin-bottom: 1"> IN THE HIGH COURT OF FIJI

(AT SUVA)

CIVIL ACTION HBC 349 OF 2000S

MAO NAI FU & OTHERS

Plaintiffs

and

RICHARD PENG & OTHERS

Defendants

Ms. S.L. Waqainabete&nbor thinPlaintiffs

<1"> D. Sharma for the Defendants

DECISION

In April 2000 the Plaintiffs commencedeedings seeking approximately $90,000 from the Defendants pnts plus interest and costs. The cauf action by the 3 Pe 3 Plaintiffs are not identical but include breach of contract, fraud and money had and received.

On 21 September 2000 the Defendants former solicitors fil application pursuant to RHC 0 18 r 18 to strike out the wrhe writ on the ground that no reasonable cause of action was disclosed.

ass=MsoBodyText Text style="margin-top: 1; margin-bottom: 1"> On 18 Octobe0 the Defendants filed an application for an order that an immigration bond valued at $3000$3000 and held by the Department of Immigration in the name of one of the Defendants in respect of the visas issued to the first 2 Plaintiffs be cancelled and replaced. The affidavit in support again alleged fraudulent conduct by the Defendants. It was concedat the applicpplication did not directly relate to the writ.

On 10 January 2001 the Plaintiffs filed a second summons seeking Judgment in default of Defence.

On 15 January an extensid detailed Statement of Defence was filed by the Defendants present solicitors. A detA detaileddavit in opin opposition to the affidavit filed by the Plaintiffs in support of their 18 October application was also filed.

On 18 January the 3 aations came before me for hearing. Ms. Waqainabete informed me that Mr. Bulewa was unas unwell and would not be returning to Fiji until March. The hearing wasurned to 20to 20 March.

On 20 March Ms. Waqainabete again appeared on behalf of thintiffs. She told me d me that ulewBulewa had still not returned from overseas and that she did not know when he would be coming back. She also told me that sd bhad been unable to prepare an affidavit in reply to that filed by the Defendants on 15 January. She sought a further adjournment.

Mr. Sharma did not oppose the application for an adjournment but indicated te was withdrawing his O 18 O 18 application. I then declined tot an adjn adjournment to the Plaintiffs and dismissed both their applications. My reasons were llows.

On 24 November 2000 when the matter first came before me I indicated the Department of Immigratioration should be served with the papers as an interested party. Thatstill not been done byne by the following March. In my view thes really no y no excuse for failing to file an answering affidavit to that filed by the Defts on 15 January. That affidavit clecalled fled for afor an answer as the first Defendant averred that the funds to pay for the immigration bond were in fact provided by the second Defendant. Theer had already been adjn adjourned twice previously and there must be a limit to the amount of time that the Court can allow to be wasted in this way. Substantssues of fact were were rain the affidavits which cann cannot satisfactorily be resolved without hearing evidence. As already mned a Statementement of Defhad been filed.

In the 12 months since the action was commenced it has not made very much progress although directions have been given by the Deputy Registrar after a summons was taken out by the Defendants who have also filed their affidavit of documents.

In my view thereothing to be gained by further time being spent on interlocutory applications. The ache action d be progrprogressed to trial as soon as possible.

M.D. Scott

Judge

4 September 2001

HBC0349D.00S