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High Court of Fiji |
IN THE HIGH COURT OF FIJI
CENTRAL DIVISION AT SUVA
CIVIL JURISDICTION
Civil Action No. 314 of 2008
BETWEEN:
SAMSEN ENTERPRISES LIMITED
a limited liability company having its registered office at Lot 1, Burns Karsanji Street,
Bhindi Subdivision, Vatuwaqa, Suva, Fiji Islands
Plaintiff
AND:
MACROLEND PTY LTD
of 15/76 Wises Road, Maroochydore, Queensland 4556, Australia
Defendant
Appearances:
Plaintiff/Applicant – Mr W. Hiuare
Defendant/Respondent – Mr T. Roche and Ms A. Tavo
Date of Hearing: 29 October 2008, 31 October 2008
Date of Judgment: 3 November 2008
JUDGMENT
Interim injunction application; Winding-up sought to be injuncted; Debt in dispute; Damages not an adequate remedy; Contention of ‘illegal dealing’; Contention of non-compliance with Exchange Control Act (Cap 211); Allegation of fraud; High Court Rules 1988, Order 5, Rule 2; Originating Summons; Fraud requires action by writ; Interim injunction granted; Statement of Claim to be filed/served; Undertaking as to damages - $50,000 to be paid in to Court
American Cyanamid v. Ethicon Limited [1975] UKHL 1; (1975) AC 396
BW Holdings Ltd v. Sinclair Knight Merz Fiji Ltd [2008] FJCA 24; ABU0066.2007S (2 July 2008)
Bryanston Finance v. De Vires (No. 2) [1976] 2 WLR 41
Druma v Nakete [2008] FJHC 94; HBC214.2007 (14 April 2008)
Honeymoon Island (Fiji) Ltd v. Follies International Ltd [2008] FJCA 36; ABU0063.2007S (4 July 2008)
In the Matter of an Application by Lautoka General Transport Company (HCA No. 24 of 1993
Kaliova Masau of Ekubu Village and Ors v. Attorney General of Fiji and Ors (Civil Action No. HBC 120 of 2007L, No. 48/2007, 19 April 2007)
Natural Waters of Viti Ltd v. Crystal Clear Mineral Water (Fiji) Ltd [2004] FJCA 59; ABU0011.2004S & ABU0011A.2004S (26 November 2004)
Pickwick International Inc (GB) Ltd v. Multiple Sound Distributors Ltd and Anor [1972] 3 All ER 384
Prasad v Singh [1992] FJCA 13; Abu0002u.91s (18 August 1992)
Samuel Mfanfikile Malaza v. Swaziland Royal Insurance Corporation (Civil Appeal No. 19/2007) [2007] SZSC 12 (15 November 2007)
1. The Application
On 16 September 2008 Samsen Enterprises Limited (Samsen Enterprises), the Plaintiff and Applicant herein, filed a Notice of Motion seeking:
1.1 Together with the Notice of Motion, Samsen Enterprises filed an Affidavit in Support from Allen Bhim SEN, Company Director of Samsen Enterprises (Affidavit in Support).
1.2 The application to restrain the winding-up was precipitated by proceedings initiated by the Defendant/Respondent MacroLend Pty Ltd (MacroLend) seeking to wind-up Samsen Enterprises. The basis for the winding-up application was that (according to MacroLend) Samsen Enterprises was and is indebted to MacroLend in the amount of $362,835.60 together with interest: Affidavit in Support, Annexure ‘D’ (Notice under section 221, Companies Act (Cap 247) Those monies are said to have been advanced to Samsen Enterprises by way of loans and financial accommodation at the request of Samsen Enterprises under a Loan Agreement of 4 November 2006: Affidavit in Support, Annexure ‘D’
1.3 Amongst other matters, Samsen Enterprises says that it has never received the monies and hence is not indebted to MacroLend and should not, therefore, be wound up.
1.4 Originally, Samsen Enterprises sought an ex parte hearing. In accordance with the general practice of this Court as in Kaliova Masau of Ekubu Village and Ors v. Attorney General of Fiji and Ors (Civil Action No. HBC 120 of 2007L, No. 48/2007, 19 April 2007) and by reference to Pickwick International Inc (GB) Ltd v. Multiple Sound Distributors Ltd and Anor [1972] 3 All ER 384, per Justice Megarry, it was heard inter partes.
1.3 When, on 29 October 2008 the matter first came before the Court with the parties present, it transpired that the caveat referred to in the Notice of Motion (Registered Caveat No. 706160) had been removed or discharged. The winding-up application was, however, set down before the Master for Wednesday 5 November 2008. Hence, urgency was expressed on the part of Samsen Enterprises to have the Notice of Motion heard so that a determination could be made on the application to restrain the winding-up before that day.
1.4 To facilitate expedition, orders were made for hearing on Friday 31 October 2008 of the application to restrain the winding up, with Samsen Enterprises filing and serving an Affidavit providing an undertaking as to damages together with supporting material on or before close of business 30 October 2008, and MacroLend filing and serving any Affidavit in Response by Friday 31 October 2008.[2] In the event, because due to the shortness of time Samsen Enterprises had been unable to obtain instructions on the matters raised in MacroLend’s Affidavit, so that the hearing would not be delayed MacroLend stated its intention not to rely upon that Affidavit, and did not seek to tender it.
2. Issues in Application
The hearing proceeded upon the usual basis, namely that Samsen Enterprises had to establish existence of matters in the material before the Court that would meet the criteria set out in American Cyanamid v. Ethicon Limited [1975] UKHL 1; (1975) AC 396, namely:
2.1 (a) Arguable Case/Serious Question to be Tried: Unsurprisingly, Samsen Enterprises and MacroLend are in dispute on this question. Samsen Enterprises says the debt upon which the winding-up application is effectively based is the subject of dispute to be properly litigated through an Originating Summons filed on 22 September 2008 by Samsen Enterprises.[3] This is because:
(a) the monies were never paid to, nor received by, Samsen Enterprises; and
(b) the loan agreement (or purported loan agreement) said by MacroLend to be the foundation for the debt is defective.
2.2 MacroLend says the material before the Court (provided by Samsen Enterprises) confirms that the monies were paid to and received by Samsen Enterprises and/or it has had the benefit of the monies. MacroLend says further that Samsen Enterprises’ material shows that there is no basis upon which the loan agreement can be properly disputed and that assertions made by or for Samsen Enterprises disclose nothing to support a valid legal basis for disputing the loan agreement.
2.3 The parties rely upon the same material for their opposing contentions - namely, the Annexures to the Supporting Affidavit.
2.4 Briefly, Samsen Enterprises says, first, that the monies were paid to Sampson Pacific, a company based in Brisbane, Australia, and not to Samsen Enterprises, based in Fiji. Samsen Enterprises relies upon Supporting Affidavit Annexure ‘E’. This is a print out bearing the heading ‘MacroLend Pty Ltd (ABN 122 386 109)’ relating to Loan Account number 012006, and being ‘Loan Account Statement No. 1’. The print out shows payments made at various dates, totalling $322,791.68 to Sampson Pacific at account 014-260 4980 23524 Buderim ANZ. Secondly, Samsen Enterprises says that the loan agreement (Affidavit in Support, Annexures ‘A’ and ‘B’) has various flaws, amongst them being that it has not been properly executed because it was signed only by a director of Samsen Enterprises, namely Mr Samsen (Affidavit in Support Annexure ‘B’) and not by a second director, namely Mr Keith SAMPSON, whereas both directors should have signed; or, in any event that Samsen Enterprises has not received a copy of the loan agreement properly executed by all parties including director Keith Sampson and, hence, there is no valid loan agreement substantiating the purported debt owed Samsen Enterprises to MacroLend. Further, had the monies been intended to come to Samsen Enterprises in Fiji then various requirements under the Exchange Control Act (Cap 211) are required to be fulfilled and these have not been.
2.5 MacroLend says that Annexure ‘E’ shows an interest payment in the amount of $2,761.68 being made by Samsen Enterprises and that this confirms Samsen Enterprises received the monies, and full well knows it did so – for why else would it make an interest payment in respect of that loan account and those monies? MacroLend says further that the loan agreement has been properly executed and, in particular, Samsen Enterprises director Mr Sen signed it (Affidavit in Support Annexure ‘B’), confirming Samsen Enterprises indebtedness to MacroLend through the loan agreement. Additionally, a letter of 18 April 2007 from the Reserve Bank of Fiji to Messrs Munro Leys, Lawyers, Suva says:
re: MacroLend Pty Limited as trustees for MacroLend Trust Lending to Samsen Enterprises Limited [(SEL]
We refer to your letter dated 28 March 2007 seeking approval for issue of securities to MacroLend to secure loans funds of $AUD 360,000 to be lent to Samsen Enterprises Limited ...: Affidavit in Support, Annexure ‘K’
2.6 This, says MacroLend, again confirms the borrower (and hence recipient) of the loan monies as Samsen Enterprises, further substantiating the debt referred to in the Winding-up Notice. So, too, says MacroLend, the Deed of Guarantee between Mr Sen and MacroLend which is said to be a guarantee made by Mr Sen in respect of the loan by MacroLend to Samsen Enterprises: Affidavit in Support, Annexure ‘I’
2.7 MacroLend says also that nothing put forward by Samsen Enterprises substantiates the contentions made in the Affidavit in Support or Written Submissions as to any:
2.8 In short, says MacroLend, no maintainable action on the part of Samsen Enterprises is disclosed in the material or in the submissions put forward for Samsen Enterprises.
2.9 (b) Damages Not an Adequate Remedy: Samsen Enterprises says that it is ‘not just in all the circumstances that it should be confined to a remedy in damages’: Evans Marshall Co Ltd v. Bertola SA (1973) 1 WLR, per Sacha, LJ at 378, adopted in In the Matter of an Application by Lautoka General Transport Company (HCA No. 24 of 1993), per Kepa, J. In this regard, Samsen Enterprises’ position appears to be that if it is wound up, then that is the end of its existence as a company, terminating its capacity to engage in all the activities of a company which it would otherwise be able to do. Ending its life in this way, when it does not (as it says) owe the monies to MacroLend which is the foundation for MacroLend’s winding-up application, would be an unjust interference in its business as a company and its capacity to trade, etc. This cannot, says Samsen Enterprises (as it is understood) be remedied by damages and particularly where there is no basis upon which Samsen Enterprises’ life should be ended, at least in terms of the winding-up application made by MacroLend.
2.10 MacroLend, however, rely upon BW Holdings Ltd v. Sinclair Knight Merz Fiji Ltd [2008] FJCA 24; ABU0066.2007S (2 July 2008) where, amongst other matters, it was said that it is no argument against a winding-up application and for an injunction to prevent this, that the winding-up will lead to adverse publicity for the company concerned:
In the course of argument, counsel for the Appellant suggested that bad publicity against the party the subject of a winding up order which would ordinarily follow by reason of the fact that there are requirements for publication of aspects of the winding up process could and should be a basis for injunctive relief which interferes with the exercise of ordinary statute-based rights of the party seeking the winding up order. In our view, publicity following a winding up order is an incidence of such an order being made. It would seem to follow that, generally speaking it is difficult to see how possible bad publicity to the company which is the subject of the winding up order could ordinarily be a proper basis for saying that the presentation or the prosecution of a winding up order following the failure to pay a statutory demand under section 221 of the Companies Act is an abuse of the process of the court ...: at para [11]
2.11 Therefore, say MacroLend, if there is any contention on the part of Samsen Enterprises that damages are no remedy for the adverse publicity attendant upon winding-up, this cannot sustain a decision in Samsen’s Enterprises’ favour on the limb of Cyanamid v. Ethicon as to ‘damages no remedy’.
2.12 Further, MacroLend relies upon the requirement that to gain an injunction, Samsen Enterprises must provide an undertaking itself as to damages. Thus, to sustain its argument that a remedy in damages will not satisfy it for the purpose of gaining an injunction, it in turn should satisfy the Court as to its own payment-of-damages capacity. This, says MacroLend, it has not done:
2.13 MacroLend says that this undercuts Samsen Enterprise’s undertaking as to damages. MacroLend relies upon Natural Waters of Viti Ltd v. Crystal Clear Mineral Water (Fiji) Ltd [2004] FJCA 59; ABU0011.2004S & ABU0011A.2004S (26 November 2004) and its citation in Honeymoon Island (Fiji) Ltd v. Follies International Ltd [2008] FJCA 36; ABU0063.2007S (4 July 2008) where the Court of Appeal said:
Applicants for interim inunctions who offer an undertaking as to damages must also proffer sufficient evidence of their financial position:
The Court needs this information in order to assess the balance of convenience and whether damages would be an adequate remedy: Natural Waters of Viti Ltd v. Crystal Clear Mineral Water (Fiji) Ltd [2004] ABU0011 at p. 12: at para [16]
2.14 If the Court is minded nonetheless to grant the interim injunction, says MacroLend, then it should do so only upon the basis that monies are paid in to Court by Samsen Enterprises and, at minimum, this should be in the sum of $50,000.
2.15 (c) Balance of Convenience: Samsen Enterprises’ contention here is, as understood, that the balance of convenience lies with the grant of the interim injunction because without it, Samsen Enterprises risks being wound-up albeit it does not (as it contends) owe the debt upon which the winding-up application is based. In that circumstance, convenience must, it says, lie with it, for if it is wound-up not owing the debt, rectifying the injustice comes at a great price – one unable to be met by damages, for how can Samsen Enterprises be placed thereby in the position it was prior to the winding-up, whereas granting the injunction means, as far as MacroLend is concerned, that MacroLend is obliged to await the outcome of the substantive action initiated by the Originating Summons of 22 September 2008. That is, MacroLend simply is required to await the determination as to whether or not Samsen Enterprises in fact owes the monies as claimed by MacroLend. That, says Samsen Enterprises is in any event the appropriate path.
2.16 MacroLend says the balance of convenience lies with it. Samsen Enterprises clearly owes the debt: as earlier, there can be no dispute about this (it says) upon the basis of Samsen Enterprise’s own material as canavassed in MacroLend’s submissions. Further, MacroLend should not be prevented from proceeding with its legitimate action in seeking the winding-up, for this is its right in accordance with the fact that Samsen Enterprises owes the monies, has refused to pay MacroLend those monies, is indebted in the stated amount to MacroLend, and MacroLend is thereby entitled to its remedy without further delay.
2.17 Further, by reference to BW Holdings Ltd v. Sinclair Knight Merz Fiji Ltd [2008] FJCA 24; ABU0066.2007S (2 July 2008), MacroLend says that an injunction to restrain a winding-up should be granted only where the winding-up application is an abuse of the process of the court, and that is not the case here:
Very properly, counsel for the Appellant has also drawn the attention of the Court to Bryanston Finance v. De Vires (No. 2) [1976] 2 WLR 41, 52 where it was held that the granting of an injunction restraining the presentation or prosecution of a winding up petition is exercised under the inherent jurisdiction of the court to prevent an abuse of its process. As a matter of principle, interference in the ordinary rights of a person conferred by statute should not be the subject of injunctive relief unless an abuse of process is established. In this regard, clear and persuasive grounds must be established before an injunction may be imposed: at para [11]
3. Determination
Taking into account all the material before the Court and the submissions made by the parties, it is determined as follows.
3.1 (a) Arguable Case/Serious Question to be Tried: There is a serious question to be tried. The submissions of MacroLend appear to have some force. At the same time, those of Samsen Enterprises (subject to comment below re fraud) are not without force of their own. The material clearly indicates negotiations between Samsen Enterprises and MacroLend in respect of a loan, the amount of the loan to be advanced to Samsen Enterprises by MacroLend being $AUS 320,000 ‘plus all associated setup costs of this facility including stamp duty, transfer and registration fees, commissions, valuation fees, application fees, legal fees and charges, fees, charges and expenses relating to the advance hereunder and the Security, up to a maximum of $AUS 350,000’: Affidavit in Support, Annexure ‘A’, ‘The Schedule’, Item 4 – ‘Loan Amount’
3.2 The date for repayment of the loan amount is 4 November 2008 ‘or such other date as maybe mutually agreed by the parties herein in writing’: Affidavit in Support, Annexure ‘A’, ‘The Schedule’, Item 5 – ‘Date for Repayment’
3.3 The parties named in the loan agreement are:
Item 2 Borrower
Name: Samsen Enterprises Limited
Address: Lot 5 Taramati Street, Bhindi Sub Division, Vatuwaqa, Suva, Fiji Islands
Item 3 Lender
Name: MacroLend Pty Ltd 122 386 109 atf MacroLend Trust
Address: 28 Bellflower Road, Sippy Downs, Qld 4556: Affidavit in Support, Annexure ‘A’, ‘The Schedule’, Item 2 ‘Borrower’, Item 3 ‘Lender’
3.4 The monies do, however, appear to have gone to Sampson Pacific, in a series of draws-down: Affidavit in Support, Annexure ‘E’ It is true, as MacroLend says, an interest payment is registered on Loan Account Statement No 1 as ‘paid into MacroLend by Samsen Enterprises’: Affidavit in Support, Annexure ‘E’ However, that could not of itself confirm that the monies went to Samsen Enterprises.
3.5 MacroLend’s contention that other material annexed to the Affidavit in Support may be interpreted as supporting its position as to Samsen Enterprises being indebted to it in the amount claimed, however, the material can be read as supporting Samsen Enterprises’ contention that (for example) the loan agreement was not executed by both directors – at least, there is no material before the Court that confirms this. Whether this means there is a ‘defect’ having the impact contended for by Samsen Enterprises is matter that Samsen Enterprises would have to establish. Nor is there material before the Court confirming that various steps obliged to be taken for receipt of loan monies in Fiji to a Fijian company have indeed been complied with: Affidavit in Support, Annexure 'J’, ‘K’
3.6 There appears to me to be a question to be tried, namely whether Samsen Enterprises is indeed indebted to MacroLend in the amount claimed in the Winding-up Notice.
3.7 As to the bases for action put forward by Samsen Enterprises, however, these cannot be pursued through an Originating Summons but must be by a Writ (as contending fraud): High Court Rules 1988, Order 5, Rule 2 This aspect is referred to later.
3.8 (b) Damages Not an Adequate Remedy: The position here is distinguishable from that in BW Holdings Ltd v. Sinclair Knight Merz Fiji Ltd [2008] FJCA 24; ABU0066.2007S (2 July 2008). There, the contention was as to part of the debt claimed: BW Holdings did not challenge the existence of the debt put forward by Sinclair Knight as the basis for the Winding-up Notice. Rather, BW Holdings challenged the amount due: it said it did not owe $117,954 as claimed by Sinclair Knight, but acknowledged its indebtedness in the amount of $5,303.29. The Court of Appeal said that had BW Holdings paid the sum it said it owed, then the outcome would have been different. But it did not pay that amount. This therefore meant that it was in debt to Sinclair Knight and that it did not challenge its indebtedness (albeit it challenged the ultimate sum).
3.9 In the Court below, an interim injunction restraining the winding-up was dissolved upon two grounds:
3.10 The Court of Appeal said:
The judge focused his decision on the fact that there was no dispute as to the existence of the debt but only as to quantum ... The argument of [BW Holdings] before the Court of Appeal was that the judge failed to take into proper consideration that the amount claimed by Sinclair Knight was strongly disputed by BW Holdings and such dispute did not give a right to Sinclair Knight to proceed with the winding up proceedings. This proposition is, with great respect to counsel, misconceived in law. That is precisely the right that is given to Sinclair Knight. That right would have been taken away if BW Holdings had paid the $5,303.29 to Sinclair Knight. In that event, Sinclair Knight would have been left with a right to proceed to recover the balance of the amount owning in civil proceedings.
It goes without saying, that the position would have been fundamentally different if the dispute had been as to the existence of the debt: at paras [13],-[14] (Emphasis added)
3.11 The latter, not the former, is the case here.
3.12 As to the ‘abuse of process’ aspect referred to by the Court of Appeal, however genuine the belief of MacroLend that Samsen Enterprises was paid and has received the sum claimed as the debt in the winding-up, if there is a serious issue to be tried as to the existence of that debt, then winding-up action is not the appropriate course. The initiation of the action to wind-up where the belief in the indebtedness of the company sought to be wound-up is genuine and based in what the applicant in the winding-up believes is a proper foundation generally could not be an abuse of process. However, continuation of winding-up action where there is a real dispute as to the debt could, it appears to me, to qualify. That is why the Court should in the present circumstance step in by way of an interim injunction – if the damages and balance of convenience questions are answered in favour of Samsen Enterprises.
3.13 On the material, the capital assets of Samsen Enterprises are not substantial, being, as earlier noted, $60,859.57 (money in the bank) plus $1320.00 ‘company assets’ (office equipment): Supplementary Affidavit in Support, Annexures ‘A’ and ‘B’ The Court accepts MacroLend’s contention that taking into account the total amount of the assets, the withdrawal of $13,582.47 over the period of a week (18 September 2009 to 25 September 2008) with a deposit of $1450 only, indicates or may fairly be taken as indicating a possibility that the capital assets may not be retained at $60,000 odd up to the time of hearing of the substantive proceeding and its determination.
3.14 Winding-up a company is an extreme measure. It puts an end to the company’s life as a functioning entity. This is not simply a question of adverse publicity attendant upon winding-up, but the question of the life of the company, its ability to trade or to carry out the purposes for which it was established, and its capacity to function at all. Where there is a real dispute about the basis of the Winding-up Notice, namely the whole of the debt is contested, damages do not appear to me to be an adequate remedy. Taking this into account, the question then is where the balance of convenience lies.
3.15 (c) Balance of Convenience: On all the matters considered, the balance of convenience, it seems to me, lies with granting the interim injunction sought. The winding-up of a company is not an everyday business event. Requiring a company that alleges a debt to prove its debt or disprove contentions of the allegedly indebted company that it does not owe the debt is something occurring in the course of everyday business. It is not an unusual or extreme happening: debts are not infrequently contested, and not infrequently creditors are obliged to prove their debts or disprove matters put in opposition to an alleged indebtedness, or negotiate for payment.
3.16 However, MacroLend’s contentions as to Samsen Enterprises paying into Court a sum in support of its damages undertaking is not without merit. Paying money into Court may also precipitate the expeditious hearing of the substantive action.
3.17 A fair sum would be $50,000.
4. Substantive Proceeding
Samsen Enterprises has commenced the substantive action by an Originating Summons filed 22 September 2008. The way in which it puts its case – as set out in the Supporting Affidavit filed with the inter partes Notice of Motion of 16 September 2008 (originally ex parte) – brings into play Order 5, Rule 2 of the High Court Rules 1988. Relevantly, it says:
Proceedings which must be begun by writ (O.5, r.2)
4.1 Order 5, Rule 4 simply provides that proceedings may be begun either by writ or by originality summons as the plaintiff considers appropriate, except where the Rules, etc require commencement by writ, originating summons or petition (as the case may be).
4.2 Samsen Enterprises claims ‘contractual misrepresentation’: Affidavit in Support, para 7 and ‘contractual fraud’: Affidavit in support, para 8
4.3 A party claiming fraud must take great care in doing so. Fraud is a serious matter and prudence in putting fraud forward as the basis of a legal claim should be exercised. The Courts a vigilant in safeguarding against ‘lightly made claims charging commission of acts involving some degree of moral turpitude’: Charles Allan Wright and Arthur R. Miller, Treatise on Federal Practice and Procedure §1296, pp. 577-81; Druma v Nakete [2008] FJHC 94; HBC214.2007 (14 April 2008)
4.4 As was said by the Court of Appeal in Prasad v. Singh [1992] FJCA 13; Abu0002u.91s (18 August 1992):
It is settled law and practice that any allegation of fraud must be expressly pleaded together with the facts, matters and circumstances relied on to support the allegation (See Ord 18, 11 of the High Court Rules, 1988.) As pointed out by Odgers Principles of Pleading & Practice in Civil Actions in the High Court of Justice (22nd Edn, p. 100), the acts alleged to be fraudulent should also be set out and then it should be stated that those acts were done fraudulently. See Re Rica Gold Washing Co [1879] UKLawRpCh 18; (1879) 11 ChD 36: at 5 (Emphasis in original)
4.5 Or, in other words:
Fraud is a serious allegation to make and it should not lightly be made unless there is evidence to substantiate it: Samuel Mfanfikile Malaza v. Swaziland Royal Insurance Corporation (Civil Appeal No. 19/2007) [2007] SZSC 12 (15 November 2007)
4.6 Where fraud is alleged the Statement of Claim must make clear precisely how fraud is put, its basis and the particulars upon which the party alleging fraud relies. Further, as noted in Druma v Nakete [2008] FJHC 94; HBC214.2007 (14 April 2008), special obligations fall upon counsel in putting forward claims of fraud on their clients’ instructions and reconstituting the substantive matter by way of Statement of Claim provides counsel with an opportunity to carefully consider the claims of fraud.
4.7 Order 28, Rule 9 of the High Court Rules 1988 provides that at any stage where it appears to the Court that a matter begun by originating summons should for any reason be continued as if it had been begun by writ, the Court may order that the proceedings so continue. In the present case, fraud having been raised by Samsen Enterprises, the matter should have begun by way of writ and henceforward must be conducted as such. Samsen Enterprises will, therefore, be obliged to file a Statement of Claim setting out, amongst all other relevant matters, the basis upon which it claims fraud.
4.8 In the course of the hearing, for MacroLend it was said that should the interim injunction be granted, then Samsen Enterprises should be obliged to clarify the basis of its action so that MacroLend could more readily respond to the way it puts its claim. That Samsen Enterprises is obliged to proceed by way of Statement of Claim may assist MacroLend in that regard. It will crystalise the issues which will be of benefit to both parties and to the Court.
ORDERS
Jocelynne A. Scutt
Judge
Suva
3 November 2008
[1] Hereinafter ‘application to restrain the winding-up’.
[2] With the understanding that if MacroLend were unable to file the Affidavit in Response before the hearing that afternoon, then a
copy should be served on Samsen Enterprises before the hearing with a copy handed up to the Court on the day.
[3] The Originating Summons of 22 September 2008 seeks a determination on the following:
(i) An Order restraining the Defendant [MacroLend] from winding up the Plaintiff [Samsen Enterprises];
(ii) A Declaration that the Loan Agreement in question is null and void.
(iii) A Declaration that the registered Caveat No. 706160 dated 3rd July 2008 is null and void.
(iv) Any other Orders, Declarations and Relief as seem just and equitable by this Court in accordance with its inherent jurisdiction.
(v) Costs of this action be given in favour of [Samsen Enterprises].
(vi) Any other Order(s) that this Honourable Court deems fit and proper.
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