Valebasoga Quarries Ltd v Credit Corporation (Fiji) Ltd [2007] FJHC 40; HBC200.2005 (14 June 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC 200 OF 2005

BETWEEN:

VALEBASOGA QUARRIES LIMITED & OTHERS
Plaintiffs

AND:

CREDIT CORPORATION (FIJI) LIMITED & OTHERS
Defendants

Mr. I. Khan with
Mr. A. Samad for Plaintiffs
Mr. V. Kapadia for 1st and 2nd Defendants
Mr. A. Pratap for 3rd and 4th Defendants

RULING

This is an application for discontinuance of entire action by the plaintiff. A short history of the proceedings is necessary in order to understand the nature of the orders I propose to make.

This action was filed on 2nd May 2005. The size of the court file runs into two volumes. Voluminous affidavits have been filed. In short the plaintiffs had sought to injunct a mortgagee from exercising its powers of sale under a mortgage in respect of three pieces of land and under debenture and bill of sale in respect of certain vehicles.

After lengthy arguments, in a reserved decision I refused to grant interlocutory injunction. Subsequently I refused stay pending appeal. The appeal in the Court of Appeal was numbered 43 of 2006. A single judge of Court of Appeal refused stay pending appeal. The plaintiffs after lapse of some months filed an application for interlocutory injunction in the Court of Appeal. That was listed for hearing on 17th January 2007.

On 5th January 2007, further proceedings were filed in the High Court being Civil Action 6 of 2007 against the same defendants involving the same properties. On 8th January 2007 without disclosing the earlier action namely 200 of 2005 and pending proceedings in the Court of Appeal the plaintiffs in Action 6 of 2007 obtained ex-parte orders from Justice Pathik restraining the defendants from proceedings with sale of properties. That injunction still remains on foot.

The second and fifth plaintiffs are also two of the plaintiffs in civil action 6 of 2007. Bahadur Ali had sworn a number of affidavits in both actions. The defendants had sworn affidavits in response. These affidavits are considerably thick with a lot of annexures. If this action is allowed to be discontinued unconditionally then there would be repeat of tedious work with unnecessary waste of time and money. It would also entail that the dissolution application would be heard that much later.

Accordingly, I allow the discontinuance but affidavits which were filed in this action may be used in Civil Action 6 of 2007.

The plaintiffs have persisted in this action for two years. Now they have filed a fresh action. The defendants have had to go to great expense and time to defend the proceedings. Accordingly a substantial order for costs is warranted seeing the complexity of legal matters and some arguments being persisted in despite clear authority from the Court of Appeal. I summarily fix the costs at $2,000.00 in favour of the first and second defendants represented by the same firm of solicitors. The Director of Lands played a somewhat limited role. I order the plaintiffs to pay a sum of $500.00 to the third and fourth defendants. All costs to be paid in fourteen (14) days. These costs are in addition to costs which may have been ordered earlier in these proceedings.

I gather the plaintiffs had deposited a sum of $5,000.00 into court as security for costs. This is to be repaid to the plaintiffs’ solicitors once the plaintiffs have paid costs ordered today.

Orders:

Action to be discontinued. However the affidavits filed in this action are to be used in HBC 6 of 2007. Costs of $2,000.00 to be paid to the first and second defendants. Costs of $500.00 to be paid to third and fourth defendants. All costs to be paid in fourteen (14) days.

[ Jiten Singh ]
JUDGE

At Suva
14th June 2007