One Hundred Sands Limited v Tulevu [2015] FJHC 257; HBC10.2012 (17 April 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 10 OF 2012

BETWEEN:

ONE HUNDRED SANDS LIMITED a duly incorporated limited liability company with its registered address as C/- BDO Zarin Ali, Level 8, Dominion House, Thompson Street, Suva and having its Postal Address at P.O. Box 500, Savusavu, Fiji
Plaintiff

AND:

ILIMO TULEVU (SNR) also known as ILIMO TUILEVU of Nukubalavu,Vanua Levu, Fiji and also of 89 Lennon Street, Wilana, W.A. Australia 6646, retired
First Defendant

AND:

MRS ADI VANI TULEVU, of Nukubalavu, Vanua Levu, Fiji and also of 89Lennon Street, Wilana, W.A. Australia 6646, Domestic Duties
Second Defendant

ORDER

Having read the Notice of Motion dated 18thFebruary 2015 in this matter and the written submissions of Counsel for the Plaintiff and Counsel for the First and Second Defendants and having on the 16th April 2015 heard the oral submissions of Mr. P. Katia for the Plaintiff and Mr. P. Lomaloma for the First and Second Defendants and having considered the authorities cited by Counsels, I am of opinion as follows:

1. The decision of the Court of Appeal of Fiji in the case of Pratap v Christian Mission Fellowship [2006] FJCA 41; ABU0093J.2005 (14 July 2006) is binding upon this Court. Having considered the decisions in the High Court of Fiji cited to me by Counsel for the Plaintiff, I find that the facts in those cases can be considered to be different from the facts of the instant case and that therefore those decisions can be distinguished.
   

2. Having perused the Order of the learned Master made on 13th October 2014 (the Order), when he ordered that the Defendants' Statement of Defence and Counter- Claim be struck out as per the prior (unless) Order dated 3rd October 2014, I find and so hold that theOrder cannot stand in the absence of the reasoning and the grounds for the decision reached being provided by the learned Master. It is therefore my Order that the Defence and Counter-Claim of the Defendants be and is hereby reinstated.

3. There shall be no Order as to costs for this Application.

Given at Labasa the 17th day of April, 2015.

D. C. Alfred
JUDGE
High Court of Fiji