In re Dayals (Fiji) Artesian Waters Ltd [2011] FJHC 112; HBE126.2008 (4 February 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBE 126 of 2008

IN THE MATTER of DAYALS (FIJI) ARTESIAN WATERS LIMITED

AND

IN THE MATTER of the COMPANIES ACT 1983, SECTION 221

BEFORE: Master Deepthi Amaratunga

COUNSELS: MUNRO LEYS
NATASHA KHAN ASSOCIATES

Date of Hearing: 8th December, 2010
Date of Ruling: 4th February, 2011

RULING

1. INTRODUCTION
   

1. In this action an order was made on 9th September, 2010 for a cost and certain directions to comply and the Respondent Company neither complied with the directions nor paid the cost. The condition of the said order was that if cost is not paid, the order in terms of the Petitioner would be entered. Now, the Respondent Company is seeking to set aside or permanently stay, the order made on 9th September, 2010.
   

2. FACTS
   

2. The Petitioner has filed this winding up application and when this matter came up for hearing on 9th September, 2010 an order was made that if cost is not paid the order in terms of the winding up application would be made.
   
3. It is important to note that the order made on the 9th September, 2010 was "If cost not paid, Order in terms" and there is no specific time for the cost to paid though there is specific time period for the other directions.
   
4. The Respondent Company did not comply with the directions and it also did not paid cost.
   
5. The Order made on 9th September, was sealed on 24th September, 2010 and in that sealed order it was stated "If costs are not paid within 7 days, order in terms of winding up petition".
   
6. It is clear that the 7 day time period that was inserted in the sealed order which was signed by the acting chief registrar was not in the order made on 9th September, 2010 and was an oversight. It is also noted that a time period is necessary to give effect to that order, and without a time period the last order cannot be implemented.
   
7. None of the parties saw this discrepancy and no one address to this in the hearing, but since I have observed this while perusing the file for the ruling it needs to be addressed and on the date of the ruling I informed both parties the issue and asked them to submit additional materials if they wish and granted time, but no party has submitted any additional submission on this point.
   
8. In the present application the Respondent Company is seeking to stay, or set aside the order made on 9th September, 2010. So, I will first deal with the submissions of the hearing first.
   

100. LAW AND ANALYSIS
     

9. At the out set the Petitioning Creditor objected to the jurisdiction of this application. So, I have to deal with the question of jurisdiction first.
   
10. I was submitted the case of Max Marketing & Publishing Co Ltd V Digital Print (Fiji) Ltd in the High Court of Lautoka in Civil Action No HBF 002 of 2004L where Justice Jiten Singh held that where a paper advertisement has been published after the order of winding up was made, that winding up order can be set aside by the same court. But arriving at that decision Justice Jiten Singh also said "As the winding up orders have damaging consequences for the company and any one who may have dealt with the company since the presentation of the petition one would expect potential petitioner to strictly comply with the rules. This is not a minor irregularity which I can ignore. Accordingly, I set aside the winding up order made on 4th June, 2004." (Emphasis is added)
    
11. So, this judgment cannot be used for each and every irregularity. The distinction is that the irregularity should not be a minor one that can be ignored. So this applies to only irregularities that are grave and fatal to the final decision.
    
12. In any event in Trade Air Engineering (West) Ltd v Taga 2007 FJCA 6 Fiji Court of Appeal held that even the same court cannot reinstate a stuck out matter since there is no provision for such an application in the High Court Rules. It was also held in that judgment that "Exception to this general rule such as O13 r 10, O14 r 11, O 24 r17 or O32 r6 have no application to Order 25". So, it is clear that the jurisdiction to set aside its own decision, unless expressly granted, cannot be presumed. This is a Court of Appeal decision and the ratio of that case is binding over High Court.
    
13. It was also held in Trade Air Engineering (West) Ltd v Taga 2007 FJCA 6 that "In our opinion the rehearing by the same judge of substantially of the same issue is, as a matter of principle, to be avoided, if at all possible."
    
14. In the circumstances the decision that I have to follow is Trade Air Engineering (West) Ltd and it is clear that I do not have jurisdiction to set aside or stay the orders made on the 9th September, 2010.
    
15. For the reasons given above I uphold the objection that I do not have jurisdiction to set aside or stay the order of 9th September, 2011 and accordingly the application of the Respondent Company is struck out.
    
16. Now I deal with the order 4 of the sealed order of 24th September,2010 which reads as follows:
    

"If costs are not paid within 7 days, order in terms of winding up petition."

17. This is clearly contrary to the order made on the 9th September, 2010 where no time period was specified on the record. So, the order that was sealed was contrary to the order what was recorded on the notes on 9th September, 2010.
    
18. The order made on 9th September, 2010 was not the exactly in compliance with what was sealed on 24th September, 2010. The time period stated in the order 4 of the sealed order has to be deleted. If the sealed order is not in compliance with the order made, it should be corrected. The court should have power to correct any errors that were done in the registry, which is contrary to court's directions. Since, I have noticed this error in perusing the file for this ruling, it should not be left uncorrected, though I have alredy held that I do not have the jurisdiction to deal with the present application.
    

4. CONCLUSION
   

19. For the reasons given above I uphold the objection of the jurisdiction of the court to set aside or stay the order of 9th September, 2011. The applicant was unable to show any provision in the High Court Rules that confer such authority to me. The rules that were sited has no relevance to this application's jurisdiction. Accordingly, the application of the Respondent Company is struck out, but since the order sealed on 24th September is irregular to the extent that the order 4 has inserted a time period that was not in the order made on 9th September, 2010 the Petitioner is directed to file a corrected order.
    
20. Considering the circumstances, I will not order a cost for the applicant though their application is struck out.
    

Dated at Suva this 4th day of February, 2011

Mr. Deepthi Amaratunga
Acting Master of the High Court

Suva