Kaneta Foods Co. Ltd v Tosa Bussan (Fiji) Ltd [2011] FJHC 101; HBC86.2007 (1 February 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 86 OF 2007

BETWEEN:

KANETA FOODS CO. LIMITED a company having its registered office at Chiba Prefecture, Kashiwa City, 287-35 Toyofuta, Japan
PLAINTIFF

AND:

TOSA BUSSAN (FIJI) LIMITED a company having its office at 8th Floor, Dominion House, Suva.
FIRST DEFENDANT

AND:

TOSA BUSSAN INC a company having its office at 1-11-13 Nihonbashi, Muromachu Chuo-Ku, Tokyo, Japan.
SECOND DEFENDANT

AND:

HIROSHI TOKUHISHA Managing Director of Lot 15 Rokobuli Subdivision, Walu Bay, Suva
THIRD DEFENDANT

Before: Master Anare Tuilevuka
: Messrs R Patel Lawyers for the Plaintiff
Messrs Sherani & Company for the Defendants

Date of Ruling: 01st February 2011

RULING

Background

[1]. The defendants' Notice of Motion filed on the 8th day of October 2008 seeks to strike out and/or permanently stay the plaintiff's claim. The application is supported by the affidavit of one Kiniviliame Kiliraki. The defendants argue that the claim should have been filed in Japan. The plaintiff claims the sum of Y178,256,127 which it allegedly paid to the 1st and second defendant. The plaintiff is a Japanese company. It buys fish and other seafood products from around the world. These, it sells to clients in Japan. The first defendant is a Fiji company. The second defendant is a Japanese company. Mr. Hiroshi Tokuhisha, the third defendant, is managing director and majority shareholder in both companies. He is based in Fiji[1]. The parties had an arrangement. It involved the 1st defendant exporting fish from Fiji to the plaintiff in Japan. The arrangement, it appears, was not formally documented.

Gist of Plaintiff's Case

[2]. Between 12th of August 2004 to 29th August 2006, the plaintiff made twenty two (22) payments into the first and/or second defendant's bank accounts. The total amount it paid during this period came to Y450,177,251. However, the defendants only supplied fish worth Y242,921,124. This means that the plaintiff has paid Y207, 256, 127 extra to the defendants. Of this, the defendants have repaid the plaintiff the sum of Y29,000,000 – leaving a balance of Y178,256,127 owing and outstanding to the plaintiff. What the plaintiff is claiming is a refund of that Y178, 256,127. The plaintiff alleges that the defendants failure to deliver to it fish supplies to the value of Y178, 256, 127 constituted a breach of the "arrangement" between them and the plaintiff. Quantum meruit is not specifically pleaded.

Security for Payment/Fraud

[3]. Documents annexed to the affidavit filed for the plaintiff suggest that the defendants have acknowledged their shortfall and pledged some security for payment. These are denied by the plaintiff.

[4]. There is also some allegation of fraud in the statement of claim. The plaintiff pleads that certain false invoices were raised by the 1st defendant pertaining to some consignments of fish that the plaintiff did not receive. These invoices were raised by the 1st defendant on 21st July 2006, 22nd July 2006, 7th August 2006 and 28th August 2006. The plaintiff also alleges that the 3rd defendant did try to get the plaintiff to convert part of the debt into the pledged shares when no regulatory consent of the Fiji Trade and Investment Bureau and the Reserve Bank of Fiji had been obtained.

Gist of Defendants' Case

[5]. An affidavit in reply of Hiroshi Tokuhisa (the third defendant) sworn on 14th day of January 2009 is filed herein. He states that the dispute is essentially between the plaintiff and the second defendant and should be dealt with in Japan. He also argues that all transactions occurred in Japan and the action should therefore have been filed in Japan. He denies signing a promissory note as security for the debt or pledging any of his shares in the 1st defendant company. He also denies the allegations of fraud – let alone that the 1st defendant did make any offer for further containers of fish. In his affidavit – he confirms that the plaintiff on a few occasions - did pay the 1st defendant directly[2]. But then in paragraph 4, Tokuhisa appears to contradict himself[3].

[6]. The issue is whether Fiji or Japan is the more appropriate and convenient forum in which the plaintiff's claim should be filed.

The Law on Forum Conveniens

[7]. As a starting point, I apply Lord Reid's sentiments in The Atlantic Star [1974] AC at 453. A foreign plaintiff has a right to obtain the decision of a Fiji court[4]. And Fiji courts have a solemn obligation to uphold every litigant's right to invoke their jurisdiction. The availability of the courts in this regard is one of the cornerstones of the rule of law[5].

[8]. However, a Fiji court may still decline jurisdiction in a case where either common law or statute confers jurisdiction to it. This will only happen if the court forms the view that Fiji is not the natural forum for the trial of the case and - if another more appropriate forum exists. However – the discretion to decline jurisdiction is not one that the court will exercise lightly. It will only decline jurisdiction if no purpose of justice would be served in assuming it[6].

[9]. The onus is on the defendants[7] to make a prima facie case that no purpose of justice would be served if the court were to assume jurisdiction. If the Court is so convinced - the burden then shifts to the plaintiff to show that the interest of justice would be better served if the case is tried in Fiji[8]. At the end of the day – the interests of the parties on the one hand and the ends of justice on the other must be balanced.

[10]. In considering whether to assume or decline jurisdiction, Courts have taken into account the following factors:

• (a) the connection between the subject-matter of the suit and the forum e.g. the nature of the dispute, the legal and practical issues involved, such questions as local knowledge, availability of witnesses and their evidence and expense (see the Ilyssia case [1985] 1 Lloyd's Rep 107 as per Lord Wilberforce)
  
• (b) personal convenience and expense to the parties and their witnesses - where they reside or carry on business.
  
• (c) the appropriate law to be applied.
  
• (d) whether the plaintiff is acting vexatiously and oppressively or in abuse of the process of the local courts in instituting the action in locally.
  
• (e) whether – any order made locally will or will not be effective.
  

Application

[11]. Clearly – the plaintiff is of the view that it will be to its advantage to institute the proceedings in Fiji. There is nothing to suggest that the plaintiff might be acting vexatiously or oppressively – considering that the 1st and the 3rd defendants are both based in Fiji. As stated – if the plaintiff ends up having to bring his own witnesses from Japan – and if it is an inconvenience that it is prepared to take - then let it be. In actual fact, the defendants' application seems to be driven by their "concern" over the inconvenience to the plaintiff rather than of their own:

4.4 It is certainly not convenient to the Plaintiff to continue the litigation in Fiji.

4.5 ..........................

4.6 The next issue that arises is that of witnesses. As evident, all of the Plaintiff's witnesses are in Japan. The cost of bringing them to Fiji, the accommodation and other related expenses are overwhelming. Clearly there is greater inconvenience in that.

4.7 In addition to that, the Plaintiff is claiming sums in the Japanese currency, or its equivalent in US dnt ars. There are several factors that will make this process difficult. In finding the conversions from Fiji Dnt ars to the US dnt ar and then to the Yen or vice versa will cw:ascciuch difficulties for the parties and then calculation of interest only adds to the added difficult.

...................................

4.11 It is also submitted that interpreters will be required for this action. The documents provided by the Plaintiff are in Japanese language and authenticity of the translations provided has to be confirmed. Further documents and witnesses at trial will also require translators and all this will cw:asccexpenses, which could otherwise be avoided if the matter is filed in Japan.

[12]. Again, if the plaintiff chooses Fiji as its preferred forum – what business is it of the other parties if the plaintiff will be prejudiced. I have considered all the other points raised by the defendants. I see no reason why the current proceedings should be struck or stayed on the basis of doctrine of forum conveniens. I note that the same allegations and issues raised in this case also arose in Furuuchi Suisan Company Ltd v Tokuhisa [2009] FJHC 194; Civil Action 95.2009 (9 September 2009). That case involved exactly the same parties as the present one before me. Fiji courts have had no problem in finding the appropriate conversion (see Inoke J's discussion in Hanif v Shah [2010] FJHC 147; HBC142.2006L (30 April 2010). And Fiji courts have deliberated on many a case involving Japanese litigants, witnesses and interpreters. The defendants may be better advised to address their concerns in an application for security for costs as they did in Furuuchi Suisan Company Ltd v Tokuhisa (see above). I dismiss the application with costs to the plaintiff which I summarily assess at $350-00 (three hundred and fifty dollars) to be paid in 21 days. Further directions are to be given by Master Amaratunga.

Anare Tuilevuka
Master

At Suva
01st of February 2011.

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^[1] Although the submissions filed on behalf of the 3^rd defendant deny that he is resident in Fiji, he tells a different story when he introduces himself in his own affidavit as “HIROSHI TOKUHISA of Lot 15 Rokobuli Subdivision, Walu Bay, Suva in the Republic of Fiji Islands, Company Director, make oath and say as follows”

^[2] As to paragraph 7 (k) of the said Affidavit I say that a few payments sent to the First Defendant by the Plaintiff was sent by the Plaintiff on instructions of the Second Defendant. Most of the payments were made to the Second Defendant by the Plaintiff in Japan and the fish was supplied in Japan.

^[3] I deny each and every allegation contained in paragraphs 8 and 9 of the said Affidavit and reiterate that any contract entered into in this matter was entered into in Japan by the Plaintiff and the Second Defendant. There was never any sale of fish contract entered into between the Plaintiff and the First Defendant. The Plaintiff also made no direct payments to the First Defendant. All payments were made in Japanese Yen and made by the Plaintiff to the Second Defendant in Japan or as directed by the Second Defendant. The First Defendant only had a contract with the Second Defendant and supplied fish to the Second Defendant and /or as directed by the Second Defendant.

^[4] “....a foreign plaintiff who can establish jurisdiction against a foreign defendant by any method recognized by English law, is entitled to pursue his action in the English courts if he genuinely thinks that that will be to his advantage and is not acting merely vexatiously.......But nevertheless the plaintiff has a right to obtain the decision of an English Court. He must not act vexatiously or oppressively or in abuse of the process of the English court...”

^[5] “The rule of law depends upon the existence and availability of courts and tribunals to which citizens may resort for the determination of differences between them which they cannot otherwise resolve” (as per Lord Bingham of Cornhill - Johnson (A.P.) v. Gore Wood & Co. (A Firm) – House of Lords 14 December 2000).

^[6] as per Scarman J in Cammell v Cammell [1965] p.467).

^[7] see the New Zealand High Court decision in Good Way Inc v Wassa International Co. Ltd and Anor HC AK CIV 2007-404-000634 [2008] NZHC 463 (8 April 2008) as applied by Mr. Justice Inoke in Quadrant Developments Fiji Limited v Bruce William Davis & Burrowes – Lautoka High Court Civil Action HBC 138 of 2009L]

^[8] See Lord Goff of Cheiveley in Spiliada Maritime Corp v Consulex Ltd [1986] UKHL 10; [1987] 1 A.C. 460:

If the Court is satisfied that there is another available forum which is prima facie the appropriate forum for the trial of the action, the burden will then shift to the Plaintiff to show cause that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in this country