In re Isipiqo Limited [2010] FJHC 310; Civil Action 149.2010 (13 August 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 149/2010

IN THE MATTER OF ISIPIQO LIMITED

And:

IN THE MATTER OF Section 28(7) of the Tax Administration Decree 2009

Before: Master Anare Tuilevuka

Counsels: Ms. Rayawa for the Plaintiff
No Appearance for the Defendant

Date of Hearing: 15th July 2010
Date of Ruling: 13th August 2010

RULING

INTRODUCTION

[1]. Before me is a petition filed by the Fiji Islands Revenue & Customs Authority dated 11th of May 2010. According to the petition, ISIPIQO LIMITED has been in arrears of income tax and penalties in the sum of $326,977.45. (three hundred and twenty six thousand dollars nine hundred and seventy seven dollars and forty five cents).

[2]. Because of that, FIRCA filed a writ of summons and statement of claim on 10th October 2006 to recover the same. Default judgment against ISIPIQO was entered on 16th November 2006. On 16th April 2007, a petition was filed at the Suva High Court vide number HBC 65 of 2007 for the enforcement of charges on two properties of ISIPIQO namely CT 23245 and CT 31021. On 29th May 2007, the Suva High Court granted order in terms of the Petition and that the ISIPIQO's property be sold by public auction. On 11th March 2008, auction of the two properties namely CT 23245 and CT 31021 March 2008 was held on site by auctioneer Graham Eden. FIRCA recovered only a total of $112,000.00 (One Hundred & Twelve Thousand Dollars) from the sale of the two properties.

[3]. With that recovery from the sale of the above two properties, the tax liability of ISIPQO now stands at $214,977.45 (Two Hundred & Fourteen Thousand, Nine Hundred & Seventy Seven Dollars, Forty Five Cents).

[4]. ISIPQO has five more properties on which FIRCA has registered its charges. The said properties are tabulated below.

No	Certificate of Title Number	Charge No	Date of Charge
1	31025	532392	13th October 2003
2	31024	532312	13th October 2003
3	31022	532312	13th October 2003
4	31020	528830	1st August 2003
5	31019	528830	1st August 2003

[5]. On the 23rd February 2009, FIRCA served on ISIPIQO at its registered office a notice of demand for the remaining tax liability to the sum of $214,977.45 (Two Hundred & Fourteen Thousand, Nine Hundred & Seventy Seven Dollars, Forty Five Cents). A copy of the Notice of Demand is annexed and marked 'E' to petition.

[6]. ISIPIQO appears to be unresponsive to the Notice of Demand and seems to be insolvent and unable to pay its debts. In the circumstances, I agree with the Petitioner that it is just and equitable that the Petitioner's charge on ISIPIQO's properties specifically CT 31025, CT 1024, CT 31022, CT 31020 and CT 31019 be realized.

[7]. I am inclined to grant Order in Terms of the Petition but for a slight glitch in the service of the process which is as follows.

[8]. The day appointed for the hearing of the petition was 7th day of July 2010 at 11.00am. On the 7th day of July 2010, the petition was called before Madam Irani Arachichi. She gave seven (7) days for the Affidavit Verifying Petition to be filed.

[9]. On the 13th July 2010 an Affidavit of Service of Buretaua Ofati was filed. Paragraph 2 of that Affidavit deposes that the petition was served on 9th July 2010 (i.e. two day after first call). When the case was later called before Madam Arachichi on 14th July 2010, she then transferred the matter to me. On 29th of July 2010, when the case was called before me, Ms. Rayawa appeared for FIRCA and sought order in terms. I then adjourned the matter for Ruling on 13th August 2010 at 2.30pm.

[10]. It has only come to my notice that the service is defective.

[11]. I therefore direct that the Petition be re-dated to 26th of August 2010 at 10.30 a.m. and be re-issued by the Suva High Court Registry. FIRCA is then re-serve a copy on ISIPIQO by the 20th of August 2010 and file an affidavit of service.

[12]. If on the 26th of August 2010 at 10.30 a.m. ISIPIQO is not present/represented in Court, I will then simply grant Order in Terms as follows:

[i] for the sale of that property in any manner to be determined by FIRCA.

[ii] that the transfer of title documents be signed by the Deputy Registrar of the High Court, Suva.

[iii] for the appointment of a receiver of the rents, profits or income thereof, and

[iv] for the payment of the amount of the charge and the cost of the Petitioner out of the proceeds of the sale or out of the rents, profits or income.

Anare Tuilevuka
Master

At Suva
Dated 14th of July 2010.