Gordon v Ghim Li Fashions (Fiji) Ltd [2005] FJHC 304; HBC0167.2005 (2 December 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0167 OF 2005

BETWEEN:

RONALD RAJESH GORDON, PATRICIA PRANITA GORDON,
ANITA ANGELINA GORDON and VERONICA VINITA GORDON
all children of Charles Gordon all of 8 Covuli Street, Lautoka and Barrister & Solicitor, Accountant, School Teacher and Barrister & Solicitor respectively.
PLAINTIFFS

AND:

GHIM LI FASHIONS (FIJI) LIMITED
a duly incorporated company having its registered office situated at 12 Walu Street, Marine Drive, Lautoka, Fiji and GLIM LI APPAREL (FIJI) LIMITED a duly incorporated company having its registered office situate at 12 Walu Street, Marine Drive, Lautoka Fiji both trading as GLIM LI GROUP OF COMPANIES.
DEFENDANTS

Mr S K Ram for the Plaintiffs
Mr I. Fa for the Defendants

Date of Hearing: 8 November 2005
Date of Ruling: 2 December 2005

INTERLOCUTORY RULING OF FINNIGAN J

This is an application by the Defendants to set aside interlocutory orders which I made ex-parte on 9 June 2005. The application was made by Summons filed on 13 October 2005. It had already been made in another Summons filed on 2 August 2005.

I heard good submissions from Counsel for both parties at the hearing on 8 November 2005. Counsel for the Defendants supported the application with concise written submissions and copies of the authorities upon which he relies. This is appreciated. The oral submissions of opposing Counsel were on the point and concise also. That also is appreciated.

The first notable point is that this action was commenced by Writ on 9 June 2005. Since that time the parties have been engaged in interlocutory battles and I have already issued one interlocutory ruling setting aside a default judgment that should never have been entered. Nothing has come before the Court apart from belated Statements of Defence to indicate that the parties want to reach some sensible early solution of what is fundamentally a simple claim. The amount at stake is not great.

In view of the substantial number of cases awaiting rulings and/or judgments that I hope to deliver before the end of this year I will issue this ruling in short form. I have considered all the submissions of Counsel both at the hearing and again since then. I have considered the authorities.

First, it is clear that the First Defendant is in this action by name only. There is not a word of a pleaded cause of action against that Defendant. I am aware from a number of other cases against these two Defendants that the First Defendant and Second Defendant are closely related companies. In my earlier interlocutory ruling (26 October 2005), I stated my view that the two companies are so closely inter-twined that if at trial the Plaintiff is able to establish any causal connection with Ghim Li Fashion (Fiji) Limited then, even though it is not a contracting party in the contract sued upon, I would be loath to strike it from the action. I feel differently now. Counsel for the Defendants mounted a serious challenge to inclusion of the First Defendant in this action and nothing was said by affidavit or submission in response to show that the Court has some grounds at law for retaining the First Defendant in the action. The First Defendant will be struck out.

I turn to the interlocutory relief itself. The purpose of the interim ex parte order was to preserve, pending hearing of the merits of the interlocutory application, sufficient security to cover the claim of the Plaintiffs which is less than $40,000.00 Assuming security is required, that is all that is required. The orders that I made go well beyond that and Counsel for the Plaintiffs had no argument to sustain such widely-drawn relief.

I had no submissions about what compliance there may have been with the interlocutory orders. Since there has been no complaint I assume that order [c] for return of keys extra was complied with and is no longer necessary. This aspect is referred to in the Statements of Defence. Likewise after considering the affidavits and the submissions I think the orders which effectively made the land in Certificate of Title No 12777 security for the Plaintiffs in this action which is unrelated to that property should be discharged. These are orders (b) and (d).

That leaves order (a). This is an order in the nature of an order for deposit of security, without requiring the deposit. If the events which the Plaintiffs fear should come to pass and they obtain judgment against a defendant which in fact has no assets in Fiji, they will at that time have recourse to this order. If the Defendants have not complied with the order what remedy will be Plaintiffs have? The order is not able to be enforced and I will discharge it.

If the Plaintiffs have grounds to seek security then they may apply and may prove those grounds. I would however discourage any further interlocutory distractions in this matter. It is clearly capable of early settlement between parties of good will, if goodwill can be maintained, despite the contrary claims of fact in the pleadings. This is a simple landlord and tenant dispute. The parties need to settle it and move on.

Conclusion:

For the above reasons I strike out the First Defendant from this action.

For the other stated reasons I discharge all of the interlocutory orders which may still be in effect, particularly (a), (b), (c), (d).

I make no order for costs.

D.D. Finnigan
JUDGE

At Lautoka
2 December 2005