In re Fun World Center (Fiji) Ltd [2014] FJHC 195; HBE33.2013L (21 March 2014)

IN THE HIGH COURT OF THE REPUBLIC FIJI
AT LAUTOKA
WESTERN DIVISION

CIVIL JURISDICTION

Winding Up Civil Case No HBE 33 of 2013L

IN THE MATTER OF FUN WORLD CENTRE (FIJI) LIMITED

AND

IN THE MATTER OF THE COMPANIES ACT

Before Acting Master M H Mohamed Ajmeer

Appearances:

Messrs Lateef & Lateef Lawyers for the Petitioner
No appearance for the Respondent Company
Date of Hearing : 21 March 2014
Date of Judgment : 21 March 2014

JUDGMENT

[1] On 25 November 2013 Basic Industries Limited t/a Standard Concrete Industries Limited, the Petitioner filed in this Court a petition pursuant to Section 220 of the Companies Act 1993 (the Act) seeking orders for winding up Fun World Centre (Fiji) Limited having its registered office at 7 Yasawa Street Lautoka and/or P O Box 3138 Lautoka in the Republic of Fiji, the Respondent Company on the ground that the Company is insolvent and unable to pay its debts. On 26 November 2013 the petitioner filed its affidavit of Salesh Nand (Finance Manager of the Petitioner) verifying petition (the affidavit).

[2] A Company may be wound up by the Court on the ground of insolvency and inability to pay its debts under Section 220 of the Act. That section, so far as material, provides as follows:

"220. A Company may be wound up by the court, if-

(a) ...;

(b) ...;

(c) ...;

(d) ...;

(e) the company is unable to pay its debts;

(f) the court is of opinion that it is just and equitable that the company should be wound up;

(g)... (Emphasis added)".

[3] The High Court is invested with jurisdiction to wind up any Company registered in Fiji (vide Section 119 of the Act).

[4] The Petitioner in the affidavit averred that the respondent company is indebted to them in the sum of $18,000.76, the debt remains wholly unpaid and unsatisfied and the amount thereof is justly due and owing to them. The petitioner further averred that notice under Section 221 of the Act was sent to the respondent Company on16 September 2013 demanding payment of the debts.

[5] Section 221 of the Act has deeming provision in it. The section provides as follows:

"221. A company shall be deemed to be unable to pay its debts-

(a) if a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding $100 then due has served on the company, by leaving it at the registered office of the company, a demand under his hand requiring the company to pay the sum so due and the company has, for 3 weeks thereafter; neglected to pay the sum or to secure or compound for it to the reasonable satisfaction of the creditor; or

(b) if execution or other process issued on a judgment, decree or order of any court in favour of a creditor of the company is returned unsatisfied in whole or in part; or

(c) if it is proved to the satisfaction of the court that the company is unable to pay its debts, and, in determining whether a company is unable to pay its debts, the court shall take into account the contingent and prospective liabilities of the company."(Emphasis added).

[6] In compliance with section 221-(a) of the Act, the petitioner on 16 September 2013 has served a demand on the respondent company to pay the debts and the respondent company to date neglected to pay the sum or secure or compound for it to the reasonable satisfaction of the creditor (the petitioner). In the circumstance, the Court may, by reason of section 221-(a) deem that the respondent company is unable to pay its debts.

[7] Under section 220-(e) of the Act, a company is unable to pay its debts is a sufficient ground for winding up the company.

[8] Moreover, copies of the petition and the affidavit were served on 27 November 2013 at the registered office of the respondent company (vide Affidavit of Service of Ulaiasi Vurai sworn and filed on 28 November 2013). Also, the petition was duly advertised in the Fiji Gazette on Friday the 13 of December 2013 and in the Fiji Times on Saturday the 14 of December 2013. Pursuant to rule 28 (1) of the Companies (Winding up) Rules 1983, the petitioner has filed memorandum of due compliance.

[9] Even after the petition was served on the respondent company and was advertised in the Fiji Gazette and in the Fiji Times, the respondent company did not cause to appear in Court and file any response disputing the debts due and owing to the petitioner.

[10] I am satisfied that the petitioner has met all the requirements that are necessary for winding up the respondent company. The respondent company is deemed to be unable to pay its debts ($18,000.76) due and owing to the petitioner. I therefore grant order to wind up the respondent company on the ground that it is unable to pay its debts.

Orders

I accordingly make the following orders:

1. The Company (Fun World Centre (Fiji) Limited) be wound up.
2. The Official Receiver be appointed Liquidator of the Company; and
3. The Petitioner is entitled to taxed costs to be paid out of the assets of the Company.
   

M H Mohamed Ajmeer
Acting Master of the High Court

At Lautoka
21/03/14