Bank of Baroda v National MBF Finance (Fiji) Ltd [2009] FJHC 267; HBC191.1998L (30 November 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 191 of 1998L

BETWEEN:

BANK OF BARODA
Plaintiff

AND:

NATIONAL MBF FINANCE (FIJI) LIMITED
1st Defendant

AND:

NMBF INSURANCE (FIJI) COMPANY LIMITED
2nd Defendant

INTERLOCUTORY JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr V Mishra for the Plaintiff
Mr S Maharaj for the Defendants

Solicitors: Messrs Mishra Prakash & Assoc. for the Plaintiff
Messrs Suresh Maharaj & Assoc. for the Defendants

Date of Hearing: 30 October 2009
Date of Judgment: 30 November 2009

INTRODUCTION

[1] This application is about the Master’s jurisdiction. The question for this Court to answer is whether the Master can hear applications for charging orders.

[2] The Second Defendant filed a Summons on 29 October 2009 for this matter to be referred to me to hear and determine several applications. I abridged time as requested by Mr Maharaj, Counsel for the Second Defendant, and heard it on 30 October 2009.

[3] Mr Maharaj argued that the Court of Appeal in its ruling on an appeal of this matter delivered on 3 April 2009 clearly stated at paragraph 8 that the merits of his client’s application seeking orders discharging the Charging order Nisi and Absolute was a matter for a judge of this Court to determine. I have read the judgment but find that the issue at hand was not determined by the Court of Appeal. I think the statement in paragraph 8 is in regards to whether the High Court as opposed to the Court of Appeal should hear the application to discharge the charging orders made by the Judge. The jurisdiction point as it concerns the Master has not been determined.

CAN THE MASTER HEAR APPLICATIONS FOR CHARGING ORDERS?

[4] Order 59 rule 2(a)(i) of the High Court Rules 1988 provides:

The Master shall have and exercise all the power, authority and jurisdiction which may be exercised by a judge in relation to the following causes and matters –

(a) Chamber applications, except in respect of –

• (i) Injunctions, other than injunctions by consent or in connection with or ancillary to charging orders;
  

[5] It is conceded that an application for a charging order is an application in chambers before a judge. It is not expressly stated to be within the Master’s jurisdiction or excluded by O 59. I think the opening words of r 2(a) by implication grants the Master jurisdiction to hear applications for charging orders.

[6] Under r 2(a)(i), the Master can hear applications for injunctions in connection with or ancillary to charging orders. It logically follows that the Master can hear substantive applications for charging orders as well.

[7] The answer to the question is therefore in the affirmative. The Master can hear applications for charging orders.

OTHER APPLICATIONS

[8] I note also that two of the Defendant’s applications are for Messrs Mishra Prakash to disqualify themselves from acting for the Plaintiff on the grounds of actual conflict of interest and for an affidavit filed in these proceedings by one of their solicitors to be expunged from the Court file. Such applications are usually heard by a judge in chambers. They are not excluded or restricted by the provisions of O 59 so clearly the Master has jurisdiction to hear these applications too.

FINAL OUTCOME

[9] The final result is therefore all pending applications are to be heard by the Master and are adjourned to a date suitable to the Master and Counsel.

Sosefo Inoke
Judge