Ghim Li Fashion (Fiji) Ltd v Challenge Engineering Ltd [2011] FJHC 492; HBC258.2008L (31 August 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL APPELLATE JURISDICTION

Civil Action No: HBC 258 of 2008L

BETWEEN:

GHIM LI FASHION (FIJI) LIMITED
Appellant/Plaintiff

AND:

CHALLENGE ENGINEERING LIMITED
Respondent/Defendant

JUDGMENT ON APPEALS FROM THE MASTER

Judgment of: Inoke J.

Counsel Appearing: Mr S Fa (Appellant/Plaintiff)
Mr F Khan (Respondent/Defendant)

Solicitors: Fa & Co (Appellant/Plaintiff)
R Patel Lawyers (Respondent/Defendant)

Dates of Hearing: 4 August 2011

Date of Judgment: 31 August 2011

INTRODUCTION

[1] These are two applications by the plaintiff for leave to appeal two decisions of the Master.

[2] The first is for leave to appeal out of time the Master’s order of 29 April 2011 dismissing the plaintiff’s application for summary judgment.

[3] The second is for leave to appeal the Master’s order of 6 May 2011 ordering the plaintiff pay security for costs of $8,000.

CASE HISTORY

[4] The Writ of Summons was filed on 25 November 2008. The Acknowledgement of Service was filed on 9 December 2008. On 15 December 2008, the defendant’s solicitors filed an application for security for costs returnable on 20 January 2009. On 19 February 2009, the plaintiff’s solicitors filed an application for summary judgment returnable on 13 March 2009. Master Udit gave directions on 13 March 2009 and adjourned the application to 15 May 2009 to fix a hearing date. Because of the closure of the courts in April 2009, the matter did not come back to court until 18 September 2009 before Master Tuilevuka. Several attendances followed until the Master delivered his judgments earlier this year.

THE MASTER’S JUDGMENT ON THE SUMMARY JUDGMENT APPLICATION

[5] The plaintiff’s claim is for damages for breach of contract. The plaintiff agreed to sell its Crown lease to the defendant for $1.9m in October 2006. The defendant paid the deposit but refused to proceed any further with the purchase. The plaintiff exercised its rights under the contract and sold the property to a third party for $1.55m and sued the defendant for the shortfall and other costs in this action.

[6] The Master’s judgment is reported in Ghim Li Fashion (Fiji) Ltd v Challenge Engineering [2011] FJHC 238; Civil Action 258 of 2008 (29 April 2011). The Master accepted Mr Patel’s affidavit filed on behalf of the defendant as showing that the defendant had shown cause in accordance with the principles in Carpenters Fiji Ltd v Joes Farm Produce Ltd [2006] FJCA 60; ABU0019U.2006S (10 November 2006) and dismissed the application for summary judgment.

[7] I find no error of fact or law in the Master’s judgment.

[8] One other hurdle which the plaintiff has to overcome is that the Master’s judgment is an interlocutory judgment and there is a reluctance to allow appeals on interlocutory judgments for case management and other reasons: Kelton Investments Ltd & Ors v CAAF [1995] FJCA 15. The appellant/plaintiff has to show special circumstances. I recently referred to the law in Lowing Nandan Associates v Yuko Yamauchi & Anor [2011] FJHC; HBC 5.2011L (26 August 2011):

... Courts have repeatedly emphasised that appeals against interlocutory orders and decisions will only rarely succeed. As far as the lower courts are concerned granting of leave to appeal against interlocutory orders would be seen to be encouraging appeals (see Hubball v Everitt and Sons (Limited) [1900] UKLawRpKQB 17; [1900] 16 TLR 168).

Even where leave is not required the policy of appellate courts has been to uphold interlocutory decisions and orders of the trial Judge - see for example Ashmore v Corp of Lloyd's [1992] 2 All ER 486 where a Judge's decision to order trial of a preliminary issue was restored by the House of Lords.

The following extracts taken from pages 3 and 4 of the written submissions made by the Applicants' Counsel are also pertinent:

'......

5.2 The requirement for leave is designed to reduce appeals from interlocutory orders as much as possible (per Murphy J in Niemann v. Electronic Industries Ltd [1978] VicRp 44; (1978) VR 431 at 441-2). The legislature has evinced a policy against bringing of interlocutory appeals except where the Court, acting judicially, finds reason to grant leave (Decor Corp v. Dart Industries [1991] FCA 655; 104 ALR 621 at 623 lines 29-31).

5.3 Leave should not be granted as of course without consideration of the nature and circumstances of the particular case (per High Court in Exparte Bucknell [1936] HCA 67; (1936) 56 CLR 221 at 224).

5.4 There is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. The appellant contends the Order of 10 May 1995 determines substantive rights.

5.5 Even "if the order is seen to be clearly wrong, this is not alone sufficient. It must be shown, in addition, to effect a substantial injustice by its operation" (per Murphy J in the Niemann case at page 441). The appellant contends the order of 10 May 1995 determines substantive rights.

5.6 In Darrel Lea v. Union Assurance (169) VR 401 at 409 the Full Court of the Supreme Court of Victoria said:

"We think it is plain from the terms of the judgment to which we have already referred that the Full Court was stating that error of law in the order does not in itself constitute substantial injustice, but that it is the result flowing from the erroneous order that is the important matter in determining whether substantial injustice will result."'

[9] So even if the Master made an error of law, there are no other circumstances which would justify re-consideration of the Master's decision. The plaintiff will not suffer any prejudice which could not be compensated in costs and interest by having its claim determined in open trial.

THE APPLICATION FOR SECURITY FOR COSTS

[10] The Master's judgment requiring the plaintiff to pay security for costs of $8,000 was delivered on 6 May 2011. I have considered the judgment and applying the same principles which I referred to above, find that there was no error of law or fact justifying reversal of the Master's order.

COSTS

[11] I do not think an order for costs is justified as the plaintiff has already been ordered to pay moneys into court for costs.

ORDERS

[12] The applications for leave to appeal out of time the Master's order of 29 April 2011 and the application for leave to appeal the Master's order of 6 May 2011 are dismissed with no order as to costs

[13] The matter is to take its normal course.

Sosefo Inoke
Judge