Makare Holdings Ltd v Tosa Bussan (Fiji) Ltd [2011] FJHC 714; Civil Action 286.2009 (8 November 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No. 286 of 2009

BETWEEN:

MAKARE HOLDINGS LIMITED a company incorporated in the Fiji Islands and having its registered office at Suva.
PLAINTIFF/RESPONDENT

AND:

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

JUDGMENT

1. The defendant/applicant(the "defendant") has filed affidavit in support seeking leave to appeal from my Order dated 1st September, 2011. The plaintiff has filed affidavit in opposition and the defendant filed affidavit in reply. On 7th October,2011, the court ordered the parties to file written submissions before 31st October,2011,which has not been complied with.
   
2. On 1st September, 2011, I refused leave to appeal from a decision of the Master. The Master had refused the application of the defendant to refer the plaintiff's claim to Arbitration and stay the proceedings.
   

The plaintiff had filed Writ of summons and statement of claim claiming a sum of $830,731.80, being monies due and payable under a Construction Agreement,in terms of which the plaintiff agreed to construct a building for the defendant. The defendant, in the application before the Master, had sought stay of court proceedings and have the matter referred for arbitration after pleadings and minutes of the pre trial conference were filed.
The Master held the matter of whether the contract had a Scott v Avery clause had to be decided, upon an application being made in accordance with Section 5 of the Arbitration Act.

3. I have perused the grounds of appeal against my order, as filed with the defendant's affidavit in support. The defendant's grounds of appeal are centrally concerned with the interpretation of Section 5 of the Arbitration Act, which reads as follows:
   

"If any party to a submission, or any person claiming through or under him, commences any legal proceedings in any court against any other party to the submission, or any other person claiming through or under him, in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time after appearance and before delivering any pleadings or taking any other steps in the proceedings, apply to the court to stay the proceedings, and that court, if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission and that the applicant was at the time when the proceedings were commenced and still remains ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings."

In my judgment, the scope of the section is explicit. It enables an application for stay of proceedings to be made after appearance and before delivering any pleadings or taking any other steps in the proceedings. There is no merit in the defendant's application.

5. I reiterate that there is a strong presumption against granting leave to appeal from interlocutory orders or judgments which do not either directly or by their practical effect finally determine any substantive rights of either party: Hussein v National Bank of Fiji (1995) FJHC 188. In NBF Asset Management Bank –vs- Taveuni Estates Ltd (HBC 543S of 2004), His Lordship Calanchini J stated:

"It is trite law to say that only in exceptional circumstances will leave be granted to appeal an interlocutory order".

Applying the principles pertaining to leave to appeal, the application for leave to appeal from my decision is refused with costs summarily assessed at $ 600 payable by the defendant to the plaintiff within 14 days.

A.L.B.Brito-Mutunayagam
Judge

8th November, 2011