In re Joe's Farm Produce Ltd [2005] FJHC 402; HBE0044D.2005S (31 October 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBE0044D OF 2005S

IN THE MATTER of JOE’S FARM PRODUCE LIMITED
a limited liability company having its registered office at Suva.

AND

IN THE MATTER of THE COMPANIES ACT.

Counsel for the Petitioning Creditor: J. Savou: Savou’s
Counsel for the Company: D. Sharma: R. Patel & Co.

Date of Decision: 31 October, 2005
Time of Decision: 12.15 p.m.

EX-TEMPORE DECISION

I am satisfied that the Company owed the sum of thirteen thousand dollars ($13,000.00) to the Petitioner. This amount is conceded by the Company and is not disputed. I therefore make the order that the amount of $13,000.00 be paid to the Petitioner out of the money already paid into Court by the Company.

The balance of the Claim of the Petitioner, I am equally satisfied, represents a debt that is clearly disputed. The Company is clearly solvent and had paid the full amount of the claim, including the disputed portion, into Court, not only prove to its solvency, but prevent any more adverse publicity to its name and reputations.

This leads me to some disquietening aspects of this case. I refer in particular to the conduct of counsel. Counsel for the Company pointed to the fact that the Petitioning Creditor’s solicitors had, without responding to his letters of further and better particulars of the alleged debt of 2 June, 2005, had proceeded and advertised the Winding-Up of the Company. The Company had to advertise its legal position and defence, through the newspapers, to protect its good name and as well as it integrity to its business clientele. Counsel for the Petitioner submitted in response, that it was not legally obligated to negotiate or even correspond further with the Company once its section 221 (Company Act) notice is issued. This could very well be the correct position in law. However, I believe that even in the most precise and defined circumstances and procedures the law exacts, Counsel’s conduct must at all times be beyond reproach. Above all their dealing with each other should be with circumspection showing respect of each other as practice and convention demands.

The idea that a Petitioner can proceed and advertise to Wind-up a Company, without as much as giving the opportunity to the Company and its legal representatives to come back for clarifications or proposals, is, in my view, notwithstanding the rigidities the law allow, not in keeping with the ethics and practice standards that should be encouraged amongst the members of the profession. One may attempt to enforce with vigour the full force that the law permits, but its trappings, including the procedures and indeed the conduct of Counsel and the Court, are equally important to the effectiveness and respect the law commands.

The observations are obiter to this Court’s findings above of which the following orders are made:

(1) That a payment of $13,000.00 be made to the Petitioner from the money that had been paid into Court by the Company.

(2) The balance of the deposited sum, be returned to the Company.

(3) The issue of damages claimed by the Company is reserved.

(4) The Petition is dismissed; and each part to bear its own costs.

F. Jitoko
JUDGE

At Suva
31 October 2005