Taunovo Bay Ltd v Honig [2010] FJHC 267; HBC86.2009 (15 February 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION HBC 86 OF 2009

BETWEEN:

TAUNOVO BAY LIMITED formerly known as
CORAL COAST PROPERTIES LIMITED
PLAINTIFF

AND:

KEN HONIG
DEFENDANT

Ms R Lal for the Plaintiff
Ms R Devan for the Defendant

DECISION

This is an application by Taunovo Bay Limited (the Plaintiff) brought by Notice of Motion dated 13 March 2009 seeking the following orders:

"(a) An injunction restraining Ken Honig (the Defendant) its servants, agents and/or others from proceeding with Winding Up Petition or advertising the same until further order of the Court;

(b) Costs of the application on a solicitor and client basis;

(c) Such further or other orders this Honourable Court considers just and equitable in the circumstances."

In support of its application the Plaintiff filed an affidavit by Mitchell Hagerman sworn on 12 March 2009.

Initially the application was made ex parte. However it came before Hickie J as an inter partes application on 18 March 2009. On that day His Lordship gave directions for the filing of further affidavit material and adjourned the matter part heard for mention on 14 May 2009.

On 12 May 2009 the Defendant filed an affidavit sworn on 23 April 2009. A reply affidavit sworn by Mitchell Hagerman was filed on 6 August 2009.

Pursuant to leave the Defendant filed further affidavit material on 29 September 2009 and the Plaintiff filed a further reply affidavit on 29 October 2009.

The application was listed for hearing on 1 December 2009. Legal submissions were presented by both parties on that day.

The background facts may be stated briefly.

The Defendant served a notice of demand dated 4 February 2009 on the Plaintiff Company pursuant to section 221 of the Companies Act Cap 247 (the Act). The notice also expressed an intention to present a Petition to the Court to wind up the Plaintiff under section 220 of the Act in the event of non compliance with the notice of demand.

The Notice was addressed to Taunovo Bay Limited formerly known as Coral Coast Properties Limited and claimed payment of the sum of US$250,000.00 within three (3) weeks of the date of receipt of the notice. The claim was stated as being for monies lent to the Plaintiff Company the full particulars of which, the Notice stated, were well known to the Plaintiff.

Service of the Notice on the Plaintiff Company was acknowledged in the affidavit of Mitchell Hagerman sworn on 12 March 2009 in paragraph 3.

It was service of this notice on the Plaintiff that ultimately resulted in the application for injunctive relief to restrain the Defendant from proceeding further with the presentation of a winding up petition.

In order to comply with Order 29 of the High Court Rules, the Plaintiff also filed a Writ of Summons that was issued by the Court on 13 March 2009. The Statement of Claim delivered with Writ did not raise any substantive cause of action other than the application for the injunctive relief and the grounds upon which it should be granted. Those grounds were essentially the same grounds that were outlined in a letter dated 25 February 2009 from the Plaintiff’s legal practitioner to the Defendant’s legal practitioner. They may be summarised briefly.

The Plaintiff contends that any money advanced by the Defendant was advanced to a company named Taunovo Bay LDC Limited (TB LDC) and not to Taunovo Bay Limited (TBL). Therefore the demand notice cannot be addressed to the Plaintiff.

The Plaintiff also contends that any money that was advanced by the Defendant was as consideration under an agreement with TBL for the purchase of Lot 20 at the Taunovo subdivision. The Plaintiff claims that the agreement was in breach of the Land Sales Act Cap 137 and Foreign Investment Act 1999. As a result the agreement was void and the Defendant can only recover the amount paid without interest. The Plaintiff claims that the balance owing is US$100,000.00 which is owed by TB LDC and not TBL.

The Plaintiff further contends that if the Defendant had advanced money to TBL as a loan, it was necessary to obtain Exchange Control approval. It is claimed that there were also requirements under the Guarantee and Bailment Act and the Stamp Duties Act that needed to be met for the loan to be enforceable in Fiji.

The Plaintiff contends that as a result there is a substantial dispute in relation to the debt claimed by the Defendant.

The Plaintiff claims that in the event that the Defendant presents a petition for winding up, its reputation will suffer and will be damaged, thereby resulting in losses and damages.

When the application was argued before me Counsel for the parties did not address any of the statutory requirements that had been raised in the letter dated 25 February 2009 (supra) and in the Statement of Claim. Furthermore, in the Plaintiff’s written submissions dated 13 August 2009, there is only a general reference to the legislation in paragraphs 3.10, 3.11 and 5.3 (iii).

At no stage has the Court been directed to a specific provision in the legislation and nor was it stated how or in what manner there had been non-compliance with a specific section in any of the pieces of legislation referred to.

Counsel focused on addressing the Court on the question of the identity of the party to whom the Defendant had advanced monies and as a result the correct identity of the debtor.

The background facts leading to the service of the notice of demand are complex and there is disagreement in the affidavit material in relation to some of those facts.

The Defendant was approached by Mitchell Hagerman some time in 2005. Mr Hagerman states in his affidavits that he is the Chief Executive Officer of the Plaintiff and also the managing partner of the Taunovo Bay Development. His affidavit sworn on 5 August 2009 annexes a company search that indicates he is a director of that company.

The Plaintiff is a company incorporated under the laws of Fiji with its registered office in Suva.

It would appear that there is another company by the name of Taunovo Bay LDC Limited.

There are no copies of certificates of incorporation in respect of either company before the Court. There is also no copy of a certificate of change of name in respect of the companies Coral Coast Properties Limited and Taunovo Bay Limited. Some of the copy Certificates of Title annexed to the affidavit of Kenneth Honig filed on 29 September 2009 show that there was a change of name of the registered proprietor from Coral Coast Properties Limited to Taunovo Bay Limited.

For reasons which are certainly not clear to the Court, there were only two documents annexed to any of the affidavits filed on behalf of the Plaintiff relating to the various companies involved in these proceedings. First there was a copy of a Notice of Change of Address of the registered office of Coral Coast Properties Limited dated August 2001.

The second document was a copy company search proforma completed in handwriting by Jamnadas, Barristers & Solicitors who are the legal practitioners for the Plaintiff. The date of the search is shown as 12.2.09. It purports to be a search of Taunovo Bay Limited (the Plaintiff). The date of incorporation is said to be 5 October 1999.

This is somewhat confusing when it appears that Coral Coast Properties Ltd was also an incorporated company as at August 2001. The Directors are said to be Mitchell Hagerman and William Hagerman. The shareholders are Mitchell Hagerman who is said to hold one share on trust for Taunovo Bay LDC. His address is shown as P O Box 351 Pacific Harbour. The other shareholder is shown as Taunovo Bay LDC (1 share).

These two documents are said in paragraph 5 of Mr Hagerman’s affidavit sworn on 5 August 2009 to be "a copy of the company structures".

The evidence is less than satisfactory. There was no explanation as to why copies of the documents lodged with the Companies Office were not annexed to the affidavits to establish what was the relationship between Coral Coast Properties Limited, Taunovo Bay Limited and Taunovo Bay LDC.

Furthermore there was no material to support the assertion that Taunovo Bay LDC was "a Cayman company", whatever that might mean. Nor was there any material to support the assertion that "Taunovo Bay Limited is deemed a foreign branch of the Cayman company" whatever that expression might mean. Finally, there was no material to support or explain the assertion that Taunovo Bay Limited "holds title to land for and on behalf of Cayman".

It would appear that initially there was an understanding between the Defendant and Mr Hagerman that the Defendant would make accelerated payments towards the Taunovo Bay Development Project. In his affidavit sworn on 5 August 2009 Mr Hagerman confirmed that the initial agreement was that the sum of $US500,000 was to be advanced to the Plaintiff Company.

Subsequently the Plaintiff Company and the Defendant’s company entered into a written sale and purchase agreement dated 10 April 2006 (the agreement) with an addendum dated 27 July 2006 (the addendum).

It was not disputed that the sale and purchase agreement provided that the Plaintiff would transfer a residential lot described as Lot 2 on plan 8579 on certificate of title No. 33387 for a total purchase price of $650,000.00. It would appear that the difference between the initial purchase price and the amount the Defendant was to pay represented a discount of $150,000 for the accelerated nature of the monies to be advanced by the Defendant.

The addendum agreement stated

"Buyer and seller are desirous of amending that executed agreement as follows:

1. Purchase price and accelerated Deposits: Buyer and Seller acknowledge US$100,000 has been received and that per the existing agreement US$50,000 installment payments are required every 4 months from April 10, 2006 until a total of $500,000 has been received by seller at which time Seller is obliged to transfer title to buyer. Buyer and Seller mutually agree to amend the installment schedule and reduce the purchase price to US$450,000 based upon the following revised accelerated installments to be made by buyer to seller:
   

A: US$150,000 to be paid concurrently with this executed amendment.

B. US$75,000 to be paid on or before 11 August 2006.

C. US$125,000 to be paid on or before 11 October 2006 upon which settlement will take place.

2. Deposits with Seller: Buyer shall make the indicated deposits in Paragraph 1 with the Seller at the designated account specified below:
   

Citibank (West) FSB

BR # 145

787 W 5TH Sc

Los Angeles CA 90071

Taunovo Bay LDC

ABA # 3222 71724

Account # 200 833 937"

The signature block in both the sale and purchase agreement and the addendum contain the following:

"Accepted ... by the undersigned as the seller.

Taunovo Bay Limited, a Fijian Limited liability company t/a Taunovo Bay

By (signature of M Hagerman)

Michael Hagerman, CEO & Managing Member".

The only reference to Taunovo Bay LDC in the agreement and the addendum is in relation to the name of the account into which payments were to be deposited by the Defendant as Buyer to the Plaintiff company as Seller. There is no reference in either document that would indicate to the Defendant that he was entering into an agreement with any other entity in any capacity other than with the Plaintiff as seller.

The affidavit material indicates that the parties agree that the Defendant paid a total amount of US$425,000 between April 2006 and September 2007.

For reasons which were not made clear the Plaintiff did not transfer title to the "Defendant in accordance with the agreement and the addendum". The Defendant acting in accordance with the default provision in clause 13 of the agreement, sent an e-mail dated 7 September 2007 to Mr Hagerman in the form of a demand stating:

"You should acknowledge this correspondence as a Formal and Final Demand Notice. You will have until the end of business today to provide to me a certain, definitive, and binding repayment schedule or a certain, definitive and binding lot closing schedule. In the event that you fail to provide this information to me, legal action will initiate next week."

Mr Hagerman informed the Defendant that he preferred to return the funds to the Defendant. In an e-mail response he stated:

"Ken,

I acknowledge receipt of US$400,000 from you.

I am willing to pay you a total of $480,000 to pay you back your principal plus $80,000 interest for having use of your capital.

I propose to pay you US$50,000 immediately, US$200,000 before the end of the year and US$200,000 by February 28.

I hope this is an acceptable repayment schedule and I am prepared to document this commitment and send you US$50,000 immediately.

Thank you for your consideration.

Best Regards

Mitch Hagerman

CEO and Managing Partner

Taunovo Bay Limited

....."

There are two comments to be made about this email. First, although the offer is to repay US$480,000, the schedule proposed by Mr Hagerman totals only US$450,000.

Secondly, the signature block refers to Mr Hagerman as CEO and Managing Partner of Taunovo Bay Limited which is the Plaintiff in this action. There is no reference to Taunovo Bay LDC.

Aware of the mathematical error, the Defendant replied to Mr Hagerman by e-mail saying:

"So there is no confusion. I will acknowledge your offer of repayment as a bona fide and definitive offer. Without my having to contact you or engage in any additional action, you will wire to my bank account tomorrow $50,000 (usd) and by December 31st 2007 you will wire to my bank account $215,000 (usd) and by February 28, 2008 you will wire to my bank account a final payment of $215,000 (usd).

If I am clear on your offer, it is acceptable to me."

The total to be refunded as understood by the Defendant was $480,000 (usd) being the amount offered by Mr Hagerman in his email.

In response Mr Hagerman sent an e-mail to the Defendant saying:

"Thank you. I am glad we are in agreement and what you suggest below is clear and accurate in terms of our obligations of repayments and dates.

I will facilitate a wire tomorrow.

We have your wire instructions per below

Best Regards

Mitch Hagerman

CEO and Managing Partner

Taunovo Bay Limited

....."

Once again the signature block makes no reference to the entity Taunovo Bay LDC. These documents may be viewed as representing an agreement made by the parties for the repayment of monies previously advanced. It is not disputed that a sum of US$250,000 was subsequently repaid to the Defendant pursuant to this agreement. The material establishes that this repayment was drawn against the same account into which the Defendant had paid his accelerated payments.

Mr Hagerman admitted that the sum of $230,000 remained outstanding (see paragraph 19 of his affidavit sworn 5 August 2009). In the same affidavit he claimed that the amount was owed by the entity referred to as the Cayman Company Taunovo Bay LDC. However the first time that this assertion was put in writing or expressly raised in writing was in the letter dated 25 February 2009 from the Plaintiff’s Legal Practitioners addressed to the Defendant’s Legal Practitioners in response to the Demand Notice dated 4 February 2009.

In an earlier demand notice dated 6 January 2009 the Defendant through his Legal Practitioners had claimed the amount of $480,000 as the outstanding debt. This, of course, was not the correct amount and not surprisingly, the Legal Practitioners for the Plaintiff replied by letter dated 19 January 2009 in the following terms:

"We would refer to your winding up Notice dated 6 January 2009.

We wish to advise that the balance sum owing to your client is US$250,000 and not $480,000.

Our client has been paying Mr Honig but due to constraints and the particular time of the year had omitted to send the expected sum of US$50,000 to your client in December. Our client is ready to pay this amount to your client immediately.

Our client has also requested your client’s indulgence in accepting our client’s proposal to repay the balance of US$200,000 by two installments, the first on June 15, 2009 and the final on September 15, 2009.

We trust that you will withdraw the Winding Up Notice and obtain instructions from your client to accept the initial payment of US$50,000 immediately and the balance as stated."

It is clear that the reference to "our client" in that letter is a reference to the entity to whom the Notice had been addressed, namely Taunovo Bay Limited. A cc copy of the letter was to be provided to the Plaintiff Taunovo Bay Limited. No where in that letter is there any claim that the outstanding amount was not the responsibility of the Plaintiff Company.

On the balance of probabilities I make the following findings of fact. The Plaintiff Company and the Defendant entered into an amended sale and purchase agreement. The Defendant paid the sum of US$400,000 into an account in the name of Taunovo Bay LDC at the request of Mr Hagerman in his capacity as CEO and Managing Partner of Taunovo Bay Limited the Plaintiff Company.

Pursuant to the default clause in the agreement the Defendant demanded repayment of the monies paid in default of which legal proceedings would be commenced. Mr Hagerman acknowledged having received the sum of US$400,000 on behalf of Taunovo Bay Limited the Plaintiff Company. Mr Hagerman offered to repay US$480,000 on behalf of Taunovo Bay Limited to the Defendant who accepted the offer. The sum of US$250,000 has been paid back to the Defendant from the same account into which the monies advanced by the Defendant had been deposited.

There is an amount (either US$230,000 or US$200,000 or US$150,000) outstanding and that amount is owed to the Defendant by Taunovo Bay Limited the Plaintiff Company. The Defendant has served on the Plaintiff Company a valid notice of Demand and Intention to present Winding up Petition dated 4 February 2009. I do not accept that the outstanding amount is owed to the Cayman Company Taunovo Bay LDC.

The Legal principles to be applied by this Court in an application such as the present are well established and well known. The first test is whether the Plaintiff’s Statement of Claim gives rise to a serious question or questions to be tried. It is accepted that the threshold for the Plaintiff to satisfy this test is that stated by Lord Diplock in American Cyanamid Co –v- Ethicon Ltd [1975] UKHL 1; [1975] AC 396 at 409:

"The Court no doubt must be satisfied that the claim is not frivolous or vexatious, in other words, that there is a serious question to be tried"

The Plaintiff’s Statement of Claim does not plead any substantive cause of action. The pleading consists of a number of matters that are claimed to represent or constitute a substantial dispute to the claim by the Defendant. In other words, the question in this case is whether the issues pleaded in the Statement of Claim raise a serious question or questions in relation to the debt claimed by the Defendant in his Notice of Demand dated 4 February 2009. As a result of the findings of fact that have been made I have concluded that the Plaintiff’s Statement of Claim does not raise a serious question to be tried.

However even if it were accepted that there may be a serious question to be tried and even if damages were not adequate, on the issue of the balance of convenience, I am persuaded by the comments made by the Fiji Court of Appeal in B W Holdings Limited –v- Sinclair Knight Merz Fiji Limited (unreported Civil Appeal No. 66 of 2007 delivered 2 July 2008) commencing towards the end of page 3:

"In the Court of Appeal, Counsel for the Appellant in his written and oral submissions contended that the crucial issue on appeal was whether the balance of convenience favoured the Appellant so that the injunction should be continued. This characterisation of the issues is plainly correct. In this regard both parties recognise that the principles governing the imposition of an injunction of this type are governed by the leading case of American Cyanamid Company v Ethicon Ltd [1975] UKHL 1; [1975] AC 396. Very properly, counsel for the Appellant has also drawn the attention of the Court to Bryanston Finance –v- De Vires (No2) [1976] 2 WLR 41 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. .... In our view, publicity following a winding up order is an incident 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 a winding up order could ordinarily be a proper basis for saying that the presentation or 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."

Only after the service of the second demand notice did the Plaintiff claim that it was not responsible for the debt. There was no relevant written material to support that claim. The assertions made by Mr Hagerman in his affidavits were not supported by any documentary material. The statutory issues raised by the Plaintiff were not argued before me and were not pursued with any particulars in the Plaintiff’s written submissions. They too appear to have been raised as a matter of last resort.

Even if any of the statutory provisions that may be relevant had the effect of invalidating or voiding the agreement and its addendum thereby rendering it unenforceable, the Defendant is nevertheless entitled to be refunded the monies advanced. He might not have been able to commence proceedings for specific performance or damages.

There does appear to be some confusion in the material as to the actual amount that remains owing. Depending on what document is being referred to, the amount may be $US230,000 or $US200,000 or $US150,000.

On a view of the material that is least favourable to the Defendant, he could claim a refund of $US400,000. Of that amount, the sum of $US250,000 has been repaid. The amount outstanding is $US150,000.

There has been no dispute that the Defendant is the creditor. The issue as to the identity of the debtor was first raised in writing by the Plaintiff’s legal practitioners in January 2009. I have indicated that, on the material before me, I do not consider that assertion to be a bona fide claim that is supported by the documentary evidence. I am satisfied that the Plaintiff Company is the correctly named debtor.

Under those circumstances I am guided by the statement of Plowman J in In Re Tweeds Garages Ltd [1962] 1 All ER 121 at page 124;

"In my judgment, where there is no doubt (and there is none here) that the petitioner is a creditor for a sum which would otherwise entitle him to a winding up order, a dispute as to the precise sum which is owed to him is not of itself a sufficient answer to his petition."

I have concluded that the balance of convenience and the overall justice of the case are in favour of the Defendant and the application for an injunction is refused.

I order that the application be dismissed and the Plaintiff pay the Defendant’s costs fixed in the sum of $500.00.

W D Calanchini
JUDGE

15 February 2010
At Suva