In re Sisters Aircool & Regeration Ltd [2011] FJHC 726; Winding up 50.2011 (11 November 2011)

IN THE HIGH COURT OF FIJI
(AT SUVA)

Winding Up Case No. 50 of 2011

IN THE MATTER of SISTERS AIRCOOL & REGERATION LIMITED a company incorporated in Fiji and having its registered office at 31-33 Brewster Street, Toorak, Suva.

AND

IN THE MATTER of the Companies Act

BEFORE: Master Deepthi Amaratunga

COUNSEL: Mr. S. Leweniquila for the Respondent Company
Mr. G. O'Driscoll for the Petitioner

Date of Ruling: 11th November, 2011

RULING

1. INTRODUCTION
   

1. The Respondent Company did not file their affidavit in opposition within time period stipulated in the company rules, first they stated that they were not served with the affidavit verifying petition. I gave a written ruling on the same day stating that there is no requirement under the law for such a service of affidavit verifying petition as per companies rules. Then without seeking the leave of the court an affidavit in opposition was filed and since there was no leave obtained I struck off the said affidavit in opposition and date is given for written ruling.
   

2. LAW AND ANALYSIS
   

2. In HBE 31 of 2009 In the Matter of Austpacific Industries (Fiji) Limited judgment dated 18th September, 2009 Justice Angala Wati held as follows
   

'Rule 5 of the Companies (Winding Up) Rules states which applications to be heard in open court. It also states that any other matter may be heard in chambers. The application for extension of time is not specifically states to be heard in open court. It is thus apparent that such application should be heard in chambers.'

3. At the moment I do not have an application before me for extension of time and this affidavit in opposition which was filed in on 29th September, 2011 should be struck off.
   
4. Rule 7(2) of Companies (Winding Up) Rules states
   

'Every application in chambers shall be made by summons as in Form No 2 set out in the schedule which, unles otherwise ordered, shall be served on every person against whom an order is sought not less than 3 clear days before the day named in the notice for hearing the summons, and shall require the person or person to whom the summons is addressed to attend at the time and place named in the summons'

5. In the Matter of Austpacific Industries (Fiji) Limited judgment dated 18th September, 2009 Justice Angala Wati further held
   

'The effect of Rule 7(2) is that applications in chambers shall be made by summons and on an inter-partes basis unless the court orders it to be made and heard on an ex-parte basis; Re Valebasogo Tropikboards Limited (In Receivership) Winding Up Action Number HBE 55 of 2006.

6. Order 32 Rule 1 of the High Court Rules 1988 states that every application in chambers shall be made by summons unless it is made ex-parte.
   
7. Order 32 rule 3 of the High Court Rules 1988 state that
   

"A summons asking only for the extension or abridgment of any period of time may be served on the day before the day specified in the summons for the hearing thereof but, except as aforesaid and unless the Court otherwise orders or any of these Rules otherwise provides, a summons must be served on every other party not less than two clear days before the day so specified"

8. So, it is clear that there was no application by the Respondent Company seeking extension of time and the filing of affidavit in opposition without obtaining leave of the court is not in conformity with the rules of the High Court as well as Companies (Winding Up) rules.
   
9. It is also noted that if such a practice in breach is allowed and legal sanction is granted the extensive rules that were laid down will be made nugatory. The mere issue of affidavit in opposition by the registry will not negate its infirmity of failure to comply with the rules. So, the affidavit in opposition which was filed without seeking leave of the court on 23rd September, 2011 is struck off.
   

100. FINAL ORDER
     

10. The affidavit in opposition filed without seeking extension of the court is struck off.
    

Dated at Suva this 11th day of November, 2011.

Mr. Deepthi Amaratunga
Master of the High Court
Suva