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Singh v Singh [2004] FJHC 468; HBC0107.2002L (24 September 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION


CIVIL ACTION NO. HBC0107 OF 2002L


BETWEEN:


SURYA DEEP SINGH
f/n Jaswant Singh
Plaintiff


AND:


PRADEEP SINGH
f/n Jaswant Singh
Defendant


Mr. G.P. Shankar for the plaintiff
Mr. S. Finch, S.C. with Mr. A. Patel for the defendant


Hearing & Ruling: 24 September 2004


EXTEMPORE RULING


There are a number of applications before the court with respect to the above matter and I propose dealing with the applications in the one collective ruling.


The plaintiff has before the court an application inter-parte filed on 20th November 2002 in which the plaintiff seeks an order, requiring the defendant in 7 days to make full disclosure with respect to the funds held in the joint names of the plaintiff and defendant but transferred by the defendant to his personal name and then seeks more details of those accounts. In addition, the application seeks an undertaking by the defendant whether by himself, his servant or agents not to transfer, withdraw or deal with funds and to make full and frank disclosure of all assets both in Fiji and elsewhere and further an injunction restraining the defendant from dealing with various bank accounts in Singapore, Hong Kong and a very general order that specifies any other bank in Hong Kong or Singapore.


The orders sought by the plaintiff in his application, includes an order requiring the defendant within 7 days of service to disclose and produced to the court income tax and other accounting material with respect to companies Integer Computing (Fiji) Limited and Integer Computing (Canada) Limited.


The plaintiff further by summons inter-partes filed on the 20th December 2002 seeks an order under Order 11 Rule 1 and the inherent powers of the court to serve known banks including a bank in Switzerland and also an asset preservation order.


The defendant concurrently seeks by way of an amended summons orders, all of which relate to security for costs. The defendant today seeks to vary that application with respect to the quantum of the security sought which is reduced to the sum of $10,000.00. The second application of the defendant is a summons filed on 3rd January 2003, which now seeks only the discharge of the ex-parte orders made against the defendant on the 5th November 2002.


In support of the application, the plaintiff relies upon the affidavit sworn by him on the 18th December 2002, 28th January 2003, 13 March 2003, 30 June 2003 and 20th September 2004 together with an affidavit sworn by Sunil Deep Singh and filed on 3rd February 2003.


The defendant in support of his applications relies upon the affidavits sworn by him and filed on 3rd January 2003 and 29th April 2003 together with an affidavit of Anu Patel filed on 7th February 2003 and affidavit of Ami Chand filed on 10th February 2003.


From the applications, the defendant seeks two orders. The first is the discharge of the orders made ex-parte on the 5th November 2002. This order is not opposed. The second order sought by the defendant is an order for security for costs in the sum of $10,000.00 together with the consequential and ancillary orders that are detailed in the amended summons.


With respect to the order sought for security for costs, the defendant relied upon Order 23 of the High Court Rules and in particular Rule 1(1)(a). That Rule provides and I quote:


“Where on the application of the defendant to an action or other proceeding in the High Court, it appears to the court (a) that the plaintiff is ordinarily resident out of the jurisdiction...then if having regard to all circumstances of the case, the court thinks it just to do so, which may order the plaintiff to give such security for the defendant’s cost of the action or other proceeding as it thinks just.”


There is no issue that the court has a discretion to grant the relief sought. It is clear from the evidence before the court that the plaintiff resides in Melbourne. There is therefore a basis under the order for the making of the orders sought by the defendant. It is also clear from the evidence that the plaintiff has no readily realizable assets in Fiji.


The defendant acknowledges that the only costs sought to be secured are those additional costs that might be incurred in enforcing a judgment overseas in a reciprocal country.


The amount now sought to be secured is not significant in the scheme of this litigation and in the interest of moving the matter forward, I am of the view it is inappropriate to make such an order at this point of the proceedings.


Counsel for the plaintiff tells the court that the plaintiff seeks:


  1. Asset preservation; and
  2. Disclosure.

Disclosure or more particularly discovery can be dealt with by way of directions and does not require an order in the terms sought. The plaintiff now quantifies his claim by way of submission in the sum of US$2m plus interest plus unspecified damages for fraud.


The preservation of the assets as sought by the plaintiff is a more difficult issue. The plaintiff by his affidavit and those in support establishes that the defendant is resident in Fiji and that the defendant operates businesses here and his wife is employed by Air Pacific.


There is nothing before the court to suggest that the defendant is disposing of assets to deprive the plaintiff of the fruits of this litigation should he be successful. There is evidence of a house having been transferred to his wife but nothing more. I have had the benefit of detailed oral submissions by Mr. Finch on behalf of the defendant and written and oral submission by Mr. Shankar on behalf of the plaintiff.


The only evidences as to the current whereabouts of offshore assets is that there is allegedly an amount of money in a Swiss Bank Account.


I have been referred by the plaintiff to various authorities with respect to the granting of the injunctive relief sought. The first of those is Babanaft International Co. SA v Bassatne and Another [1989] 1 All ER 433. Here, the Court of Appeal in England was dealing with issues arising out of all the European community. At page 441, Kerr LJ said:


“In my view, the key to the proper exercise of any extra-territorial jurisdiction must lie in the question whether there is international reciprocity for the recognition and enforcement of the type of order which is under consideration, in this case a Mareva injunction or a variant of it purporting to operate on the defendants’ assets abroad.”


The most relevant part of the passage that I have quoted is the “international reciprocity for the recognition and enforcement of the type of order sought”. There is nothing before the court to suggest that there is any international reciprocity that would assist the plaintiff should such an injunction be granted with respect to a bank account in Switzerland.


The plaintiff’s counsel also refers the court to Ghoth v Ghoth [1992] 2 All ER 922, there Lord Donaldson MR merely said or merely referred to the need for one to consider the words of Kerr LJ in Babanaft International Co. SA v Bassatne and Another to which I have already referred.


I was also referred by the plaintiff to Jackson v Sterling Industries Limited [1987] HCA 23; 162 CLR 612 at page 622, Mr. Justice Deane said:


“Initially, injunctive orders to preserve assets were made to prevent a non-resident defendant from removing assets from the territorial limits of a court’s jurisdiction so as to frustrate the effectiveness of any judgment that might be obtained. In due course, it was perceived that a general interlocutory power to make orders preventing a defendant from disposing of his assets so as to defeat any judgment obtained in an action was an incident of the substantive jurisdiction to entertain the action and was not confined to the case where the defendant was a non-resident. That general power has been held to encompass an order requiring the disclosure by a defendant of his assets; an order for the delivery up of designated assets which were not specifically in issue in the proceedings and, an order restraining a local company from disposing of or dealing with assets which were outside the jurisdiction at least where they had been within the jurisdiction when the action commenced. Arguably, it extends to the making of an ancillary order after judgment to protect the efficacy of execution. As a general proposition, it should now be accepted in this country that a Mareva injunction can be granted...if the circumstances are such that there is a danger of (the defendant’s) absconding, or a danger of the assets being removed out of the jurisdiction or disposed of within the jurisdiction, or otherwise dealt with so that there is a danger that the plaintiff, if he gets judgment, will not be able to get it satisfied.”


There is nothing before me that would satisfy the test as therein expressed by Mr. Justice Deane. Having said that, it may be that such an injunction could be granted if appropriate evidence justifying such a course of action was placed before the court.


The Orders of the Court therefore will be:


1. The orders of this court of the 5th November 2002 are discharged.


2. The defendant’s amended summons is dismissed.


  1. The plaintiff’s application inter-partes filed on 20 November 2002 is dismissed.
  2. The plaintiff’s summons inter-partes filed on 20 December 2002 is dismissed.

5. Costs to be cost in the cause.


6. I make the following directions for the future conduct of the matter:


(i) The plaintiff is to file amended statement of claim by the 8th October 2004;

(ii) The defendant is to file a defence by the 22nd October 2004;

(iii) Discovery is to take place by the 3rd December 2004; and

(iv) The matter is adjourned for mention before me at 9.00am on the 3rd December 2004.

JOHN CONNORS
JUDGE


At Lautoka
24 September 2004


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