Fortune 8 Ltd, In re [2015] FJHC 840; HBE28.2014 (30 October 2015)

IN THE HIGH COURT OF FIJI AT LAUTOKA
COMPANIES JURISDICTION

BANKRUPTCY AND WINDING UP CAUSE No. 28 of 2014

IN THE MATTER of FORTUNE 8 LIMITED a limited company having its registered office at Level 3, Aliz Center, Martinar, Nadi

AND

IN THE MATTER OF THE COMPANIES ACT

Counsel : Mr John Connors for petitioner
: Mr V Sharma for respondent
Date of Hearing : 02 July 2015
Date of Ruling : 30 October 2015

DECISION

Introduction
[1 This is an application for leave to appeal the learned Master's decision of 30 April 2015.

[2] By summons filed 12 May 2015 ('the application') the petitioner (Andalusia Limited-formally Sonaisali Island Resort Limited) seeks the following orders:

1. That the Petitioner be granted leave to appeal against the Decision of the Master pronounced on the 30th day of April 2015.
   
2. That costs of this Application to be costs in the cause.
   

[3] The application is supported by an affidavit of Sunil Kumar ('SK's Affidavit'). The proposed grounds of appeal are annexure marked as SK2 to this affidavit.

[4] This Application is made pursuant to Order 59 of the High Court Rules 1988, as amended ('the HCR') and the Inherent Jurisdiction of the Court.

[5] The respondent (Fortune 8 Limited) opposes the application and filed affidavit of Tracy Maciver, Company Director ('TM's affidavit').

[6] At hearing, both parties tendered their respective written submissions. Only the petitioner made oral submission. The respondent did not make oral submission. I express my thanks for the quality of argument.

Background

[7] The Petitioners claim arises from a claim in damages for breach of contract by the respondent company. The matter came before the court for mention on 4 June, 2014 when it was fixed for hearing on 6 August, 2014 before Tuilevuka J.

[8] On 6 August, 2014 the respondent company did not appear and the matter proceeded in its absence after the court being satisfied that the solicitor on the record for the company was out of the country.

[9] The petitioner (plaintiff) gave evidence before Tuilevuka J. which included the tendering of 33 documents evidencing the contract, its breach and the damages that flowed therefrom. Tuilevuka J. found the defendant's (respondent's) defence had no merit and gave judgment in favour of the petitioner in the sum of $229,408.69.

[10] The respondent sought to set aside the judgement obtained in its absence. The application to set aside came before me when sitting as Master on 21 October, 2014. I then heard a preliminary issue that the application be struck out as it was filed out of time. On 3 November, 2014 I delivered my ruling. I struck out the application as it had been filed out of time and therefore time barred.

[11] On 24 November, 2014 the respondent company filed a Notice of Change of Solicitor and a Notice of Appeal. The Notice of Appeal purported to be an appeal to the High Court from the decision of the Master dated 3 November, 2014 (my decision).

[12] The respondent company did not cause the Notice of Appeal to be called before the High Court.

[13] In the interim, by summons dated 21 January, 2015 the Respondent sought to stay the winding up proceedings commenced by the Petitioner. This summons was heard by the learned Master on 3rd March, 2015 and a Ruling issued on 30th April, 2015.

[14] The Respondent Company subsequently sought an order from the court to enlarge the time period for filing and service a Notice of Appeal against the decision of the Master (mine) of the 3rd November, 2014.This application was heard by the Court on 10th April, 2015 and judgment is reserved.

Bankruptcy & Winding-up Cause

[15] The petitioner presented on 19 November 2014 a petition for winding up of the respondent company (the Fortune 8 Limited) on the ground that the respondent company is unable to pay its debts. The winding-up petition states that The Notice of Demand pursuant to section 221 of the Companies Act was served on the registered office of the respondent. The petitioner filed its affidavit verifying petition on 21 November 2014 and a memorandum of Due Compliance was filed and served on 2 March 2015.

[16] Affidavit of service of Anwar Naseemud Dean sworn on 4 December 2014 was filed on 8 December 2014.

Respondent's summons to stay

[17] On 20 January 2015 the respondent company filed a summons seeking a stay order against the all proceedings in Winding-up Cause and the petitioner and or his agents or servants be restrained from interfering in the affairs of Fortune 8 Limited (the respondent). The stay application was made in reliance upon section 224 of the Companies Act Cap 247. The learned Master heard the stay application and set for ruling on 30 April 2015. Before the Learned Master delivering his ruling the petitioner filed 9 April 2015 an affidavit service of Anwar Naseemud Dean sworn on 3rd October 2014 in which the deponent states that he did personally serve at Level 3, Aliz Centre, Martintar, Nadi, the registered office of Fortune 8 Limited. The learned Master pronounced his decision on 30 April 2015. The current leave to appeal application is against that decision.

The Master's Decision

[18] The learned Master concluded that, the demand for payment as required by section 221 of the Companies Act has not been served upon the registered office of the Company. He accordingly ordered that:

'(1) I grant stay against all proceedings in Winding Up cause 28 of 2014.

(2) I award costs against the petitioning creditor in the sum of $1,500.00 (summarily assessed) which is to be paid within 14 days from the date hereof.'

Proposed grounds of appeal

[19] The petitioner seeks leave of the court to appeal the interlocutory decision delivered on 30 April 2015 by the learned Master on the following grounds:

i) That the Master erred in law and in fact when he entitled his ruling as an "Extempore Ruling" when the hearing took place on 3 March, 2015 and the ruling was delivered on 30th April, 2015.

ii) That the Master erred in law when he held at paragraph 3 page 4 that order 2 Rule 2 of the High Court Rules applied to a failure to comply with a legislative requirement.

iii) That the Master erred in law and fact when having found [paragraph 3 page 4] that "it is manifest that the Respondent Company does not have legal standing under section 224 of the Companies Act for a stay of Winding-up proceedings" he failed to dismiss the application.

iv) That the Master erred in fact when he sated at paragraph 7 page 6 that no affidavit of service of notice of demand sworn by Anwar Naseemud Dean is on file when it was filed on 9 April, 2015.

v) That the Master erred in fact when he states "I am curious as to why the Petitioning creditor is refusing to provide the affidavit of service of the statutory demand Notice and the affidavit of "Anwar Naseemud Dean" deposing the service of the statutory demand." When he refused to allow it to be filed in court and when it was filed on 9 April, 2015.

vi) That the Master failed to take into considering relevant matters and took into account irrelevant matters when reaching his decision.

vii) The Appellant reserves their rights to file and amend their Groups of Appeal.

Grounds of Objection

[20] At paragraph 3 of the affidavit in reply the respondent says that the grounds of appeal have no merits for the following reasons:

i) I am advised by may lawyer and i believe the same to be true that this issue raised has no significant to the decision of the Master of the 30thof April 2014.

ii) I am advised by my lawyer and I believe the same to be true that that this is a legal issue and not a matter of evidence, hence should not be part of the Affidavit evidence.

iii) I am advised by my lawyer and I believe the same to be true that the Court has an inherent jurisdiction to stay any Winding-Up action, which it has done in this case.

iv) This is denied. It is a fact that no Affidavit of Service was filed and served when the matter was heard before the Master.

v) I repeat that at the time of the Hearing of this matter no Affidavit of Service had been filed and the Company has never been served with one to this date.

vi) This is denied. The Court has taken into account all relevant consideration before arriving at its decision.

The Law
[21] The petitioner seeks leave of the court to appeal an interlocutory order of the learned Master. Hence Order 59, rr.8 &11 of the HCR would be applicable to this application. Rules8 & 11 provide:

Appeal from Master's decision (O.59, r.8)

'8.-(1) An appeal shall lie from a final order or judgment of the Master to a single judge of the High Court.'

(2) No appeal shall lie from interlocutory order or judgment of the Master to a single judge of the High Court without the leave of a single judge of the high court which may be granted or refused upon the papers filed.

Application for leave to appeal (O.59, r.11)

11. Any application for leave to appeal an interlocutory order or judgment shall be made by summons with the supporting affidavit, filed and served within 14 days of the delivery of the order or judgment.'

Test for granting leave to appeal interlocutory order

[22] The law on leave to appeal an interlocutory order was set out in Bank of Hawaii v Reynolds [1998] FJHC 226 by Pathik, J. Referring to the case of Ex Parte Bucknell [1936] his lordship stated in the judgment that:

'At the same time, it must be remembered that the prima facie presumption is against appeals from interlocutory orders, and, therefore, an application for Leave to Appeal under s5 (1) (a) should not be granted as of course without consideration of the nature and its circumstances of the particular case. It would be unwise to attempt on exhaustive statement of the considerate which should be regarded as a justification for granting Leave to Appeal in the case of an interlocutory order, but it is desirable that, without doing this, an indication should be given of the matters which the court regards as relevant upon an application for leave to appeal from an interlocutory judgment'

The Court in Ex parte Bucknell went on to state at page 225:

But any statement of the matters which would justify granting leave to appeal must be subject to one important qualification which applies to all cases. It is this. The Court will examine each case and, unless the circumstances are exceptional it will not grant leave if it forms a clear opinion adverse to the success of the proposed appeal.'

[23]Also, in Totis Inc. Sport (Fiji) Ltd& Another v John Leonard Clark & Another, FCA No. 35 of 1996 Tikaram J expressed similar sentiment:

'It has been long settled law and practice that the interlocutory orders and decisions will seldom be amenable to appeal. Courts have repeatedly emphasized that appeal against interlocutory orders and decisions will only rarely succeed. The Fiji Court of Appeal has consistently observed the above principle by granting leave only in the most exceptional circumstances'

[24] Lord Woolf MR said in Swain v Hillman [2001]1 All ER 91 that a 'real' prospect of success means that prospect of success must be realistic rather than fanciful. The court considering a request for permission is not required to analyse whether the proposed grounds of appeal will succeed, but merely there is a real prospect of success (Hunt v Peasegood (2000) The Times, 20 October 2000). [Emphasis provided]

Discussion

[25] This is an application for leave to appeal an interlocutory decision of the learned Master of 30 April 2015 where he made order staying all proceedings in Winding up Cause 28 of 2014.

[26] An appeal lies from an interlocutory order or judgment of the Master to a single judge of the High Court with the leave of a single judge of the High Court. A single judge may grant or refuse such leave upon papers filed, see O.59, r.8.

[27] The judge has discretion to grant or refuse leave to appeal an interlocutory order or judgment of the Master.

[28] An application for leave to appeal an interlocutory order or judgment must be made by summons with the supporting affidavit, filed and served within 14 days of the delivery of the order or judgment, see O.59, r.11. The learned Master delivered his decision on 30 April 2015. The applicant filed on 12 May 2015 its application for leave to appeal the decision with the supporting affidavit. It is clear that the application for leave to appeal has been filed and served within 14 days of the delivery of the decision as required by rule 11.

[29] It was not in dispute that the application for leave to appeal was filed and served within 14 days of the delivery of the decision.

[30] The applicant presented a winding up petition to the High Court at Lautoka to wind up the respondent company on the ground that it is unable to pay its debts.

[31] Section 220 of the Companies Act details the circumstances which a company may be wound up by the court under:

'220. A company may be wound up by the court, if-

(a) the company has, by special resolution, resolved that the company be wound up by the court;

(b) default is made in delivering the statutory report to the registrar or in holding the statutory meeting;

(c) the company does not commence its business within a year from its incorporation or suspends its&b160;ess&n160;for #160;a whole y/i>;

(d) the) the number of members is reduced, in the case of a private company, below 2, or, in tse ofotherany, 7; (e)i>(e) the the compacompany 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) in the case of a company incorporated outside Fiji and carrying on business in Fiji, winding-up proceedings have been commenced in respect of it in the country or territory of its incorporation or in any other country or territory in which it has established a place of business. (Emphasis provided)

[32] Section 221 defines 'inability to pay debts 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 provided]

[33] The winding up petition was presented on the basis that, the respondent company has failed to pay the sum demanded by notice issued under section 221. The notice under section 221 was served on the registered office of the company after judgment was obtained in the sum of $229,408.69.

[34] The winding up application filed by the applicant was to be heard before the learned Master on 21 January 2015.

[35] On 20 January 2015 the respondent filed the summons under section 224 of the Companies Act to stay all winding up proceedings. Because of this application the winding up petition was not heard on 21 January 2015.

[36] Pursuant to section 224 of the Companies Act the court has power to stay or restrain proceedings against a company. Section 224 states:

'At any time after the presentation of a ending-up petition, and before a winding-up order has been made, the company, or any creditor or contributory, may –

(a) Where any suit or proceeding against the company is pending in the High Court or the Court of Appeal, apply to the court in which the suit or proceeding is pending for a stay of proceedings therein;

and

(b) Where any other suit proceeding is pending against the company, apply to the court having jurisdiction to wind up the company to restrain further proceedings in the suit or proceeding,

and the court to which application is so made may, as the case may be, stay or restrain the proceedings accordingly on such terms as it thinks fit .' [Emphasis added]

[37] The stay application was argued before the learned Master. He heard the argument from both sides, reserved his decision and delivered his decision on 30 April 2015 granting a stay of all proceedings.

[38] At para (D) (3) of the ruling the learned Master analysing the operation of section 224 concludes:

'Counsel submitted that that the summons is irregular as section 224 of the Companies Act has no application to the current matter where the respondent seeks to stay the winding-up proceedings. In support of this proposition, the counsel invited the attention of the court to the decision in 'Patri v Dragons Seafood Company (Fiji) Ltd.' (1996) FJHC 102.

...

Therefore, it is manifest that the Respondent Company does not have legal standing under section 224 of the Companies Act for a stay of Winding-up proceedings.

Given the above, I certainly agree with the sentiments which are expressed inferentially in the petitioner's submissions.

In any event the Petitioner's point must fail because of the delay involved.'

[39] The rationale behind section 224 was considered in Petri's case (supra) where Fatiaki J said:

'In this regard, there can be no doubting from the clear wording of Section 224 of the Companies Act 1983 that the Court is given an unfettered discretion to stay or restrain 'any suit or proceeding pending against the company' at any time after the presentation of a winding-up petition, and before a winding-up order has been made...

The clear 'mischief' sought to be overcome by both provisions is that which is likely to arise from a multiplicity of proceedings being commenced or prosecuted (possibly before different courts and by different parties) against a company whose continued existence and commercial viability is the subject matter of a winding-up petition or order by the Court'.

[40] The court is given unfettered discretion by virtue of section 224 of the Companies Act to stay or restrain any suit or proceeding pending against the company at any time after the presentation of a winding up petition and before a winding up order has been made. The issuance of stay or restraining order is intended to avoid a multiplicity of proceedings being commenced or prosecuted against a company whose continued existence and commercial viability is the subject matter of a winding-up petition or order of the Court.

[41] The second proposed ground of appeal is that, the Master erred in law and fact when having found [paragraph 3 page 4] that "it is manifest that the Respondent Company does not have legal standing under section 224 of the Companies Act for a stay of Winding-up proceedings" he failed to dismiss the application.

[42] The learned Master in his ruling said that the respondent company does not have legal standing under section 224 of the Companies Act for a stay of Winding-up proceedings. However, he did not dismiss the application for a stay. He further said in his ruling that:

'In any event the Petitioner's point must fail because of the delay involved.' [Emphasis added]

[43] Though, the learned Master decided that the respondent company has no legal standing under section 224 for a stay of winding-up proceedings he did not mind to dismiss the application filed by the respondent company to stay because of the delay involved. The delay involved is this, the petitioner failed to file affidavit of service in proof of service of the statutory demand notice (s.221 notice) upon the registered office of the respondent company.

No affidavit of service of notice of demand

[44] I now returning to proposed grounds of appeal iv& v. I will consider both grounds together. The fourth ground is that the Master erred in fact when he sated at paragraph 7 page 6 that no affidavit of service of notice of demand sworn by Anwar Naseemud Dean is on file when it was filed on 9 April, 2015.

[45] In regard to affidavit of service of notice of demand at page 6 of the ruling the learned Master states:

"I am curious as to why the Petitioning creditor is refusing to provide the affidavit of service of the statutory demand Notice and the affidavit of "Anwar Naseemud Dean" deposing the service of the statutory demand."

[46] The learned Master heard the stay of proceedings application on 3 March 2015, when counsel for the petitioner attempted to file the affidavit of Affidavit of Anwar Naseemud Dean deposing the service of the statutory demand. He refused to allow it to be filed in court and when it was filed on 9 April, 2015, before the ruling delivered on 30 April 2015.

[47] The petitioner filed and served a Memorandum of due compliance on 2 March 2015. The affidavit of Aaron James McGrath sworn 21 November 2015 verifies and confirms the facts stated in the petition are true.

[48] The petition states that a demand was served on the registered office of the company. The notice of demand pursuant to section 221 of the Companies Act was served on the registered office of the respondent on 19 September 2014. The affidavit of Anwar Naseemud Dean was filed on 9 April 2015.

[49] At para (D) (7), page 6 of the ruling the learned Master states:

"The affidavit of "Anwar Naseemud Dean" deposing the service of the statutory demand is not provided. It is a matter of curiosity. To make matters worse, the affidavit of service of the statutory demand Notice is not filed, with the Winding-up Petition. There is simple no document or affidavit on file to prove that the demand for payment as required by section 221 of the Companies Act has been served upon the registered office of the Company. Further, the Petitioning Creditor has not satisfied the Registrar under section 28 of the Companies Act that this requirement has been fulfilled.

I am curious as to why the Petitioner creditor is refusing to provide the affidavit of service of the statutory demand Notice and the affidavit of "Anwar Naseemud Dean" deposing the service of statutory demand."

[50] The affidavit of service of Anwar Naseemud Dean sworn 3 October 2014 and filed on 9 April 2015 deposes that the statutory demand notice was personally served upon the registered office of Fortune 8 Limited on 19 September 2014. The copy of demand notice is annexed to the affidavit clearly shows that Ms Vera Inia, the Manager had acknowledged service.

[51] Relying on Rule 28 of the Companies (Winding-Up) Rules the learned Master at page 7 of the ruling states:

'The petitioning creditor's failure to establish that it had a good reason for:

Not filing the affidavit of service of statutory demand with the Winding-up petition.

Not providing the affidavit of 'Anwar Naseemud Dean' deposing the service of the statutory demand does not leave a good impression.

"On the strength of this, I conclude that;

The demand for payment as required by section 221 of the Companies Act has not been served upon the registered office of the Company.

The Petitioning creditor has not satisfied the Registrar under section 28 that the requirement under section 221 has been fulfilled.

The answer for non-compliance provided in Rule 28, is that "no orders in Petition be made".

And then at page 8 he states:

In the circumstances, the Petition must fail.'[Emphasis provided]

[52] At this stage, it is necessary to examine Rule 28 which provides:

(1) 'After a petition has been presented, the petitioner or his barrister and solicitor shall, on a day to be appointed by the registrar, attend before him to satisfy him that the petition has been duly advertised, that he prescribed affidavit verifying the contents thereof and the affidavit of service, if any, have been duly filed and that the provisions of these Rules have been duly complied with by the petitioner.

(2) No order shall be made on the petition of any petitioner who has not, before the hearing of the petition, attended before the registrar, at the time appointed, and satisfied him in manner required by this rule.' [Emphasis provided]

[53] I note that there has been no date appointed by the registrar (in this instance the Deputy Registrar) for the petitioner to attend before him to satisfy him the petition has been duly advertised, that the affidavit verifying the petition and affidavit of service have been filed and that the provision of Rules 28 have been complied with by the petitioner.

[54] The petitioner presented the winding-up petition on 19 November 2014. The affidavit verifying petition was filed on 21 November 2014. The affidavit of service of Anwar Naseemud Dean sworn 4 December 2014 deposing that true copies of winding-up petition and affidavit verifying petition were served upon the registered office of Fortune 8 Limited was filed on 26 November 2014. The petitioner then files on 14 January 2015 a notice to inform the respondent company that the winding-up petition will be heard before the court at 8.30am on 21 January 2015.

[55] The hearing of the petition did not take place on 21 January 2015 because of the stay application filed by the respondent company on 20 January 2015.

[56] After few adjournments the learned Master heard the stay application on 3 March 2015 and issued the impugned ruling 30 April 2015.

[57] The learned Master states in his ruling that the petitioning creditor's failure to establish that it had a good reason for not filing the affidavit of service of statutory demand with the Winding-up petition, and concludes that, 'The Petitioning creditor has not satisfied the Registrar under section 28 that the requirement under section 221 has been fulfilled. The answer for non-compliance provided in Rule 28, is that "no orders in Petition be made".

[58] After presenting a petition, the petitioner must satisfy the registrar that he has complied with Rule 28. Rule 28 (1) requires the petitioner to attend before the registrar at the appointed time and show that the petition has been duly advertised, that he prescribed affidavit verifying the contents thereof and the affidavit of service, if any, have been duly filed and that the provisions of these Rules have been duly complied with by the petitioner.

[59] The Memorandum of Due Compliance with Rule 28 (1) of the Companies (Winding Up) Rules was filed on 10 February 2015. The registrar has certified that it to be correct.

[60] Rule 28 (2) describes the consequence of non-compliance with provisions of Rule 28 (1). The petitioner must comply with the provisions of Rule 28 (1) before the hearing of the petition (winding-up petition). If not, the court will not make order on the petition.

[61] In fact, the hearing of the petition did not take place on the day fixed for that purpose (21 January 2015). The hearing on 3 March 2015 was the hearing on the stay application, and not the hearing of the petition. The learned Master applied Rule 28 (a) and concluded that the petitioner failed to file affidavit of serve before the hearing of the petition.

[62] I am of opinion that the petitioner still had time to file the affidavit of service of the statutory notice, for the hearing of the petition was not yet commenced. The ground that the learned Master having found that "it is manifest that the Respondent Company does not have legal standing under section 224 of the Companies Act for a stay of Winding-up proceedings" he failed to dismiss the application raises arguable point and has real prospect of success at the appeal.

Order 2, Rule 2 of the High Court Rules

[63] The second proposed ground of appeal is that the Master erred in law when he held that Order 2 Rule 2 of the High Court Rules applied to a failure to comply with a legislative requirement.

[64] Order 2 of the High Court Rules deals with effect of non-compliance with rules which so far as material provides:

1. (1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirement of these Rules, whether in respect of time, place manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in proceedings, or any document, judgment or order therein.

(2) Subject to paragraph (3)k, the Court may, on the ground that there has been such a failure as in mentioned in paragraph (1), and on such term as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings which the failure occurred, any step taken in those proceedings or any document, judgment or order therein or exercise its powers under these Rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.

(3) .................................

2. (1) An application to set aside for irregularity any proceedings, any step taken in any proceedings or any documents, judgments or order therein shall not be allowed unless it is made with a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.

[65] Counsel for the petitioner submits that Order 2 rule of the High Court Rules applies to an 'irregularity' being a 'failure to comply with the requirement of these Rules'.

[66] The application before the learned Master was an application for stay of winding-up proceeding filed by the respondent pursuant to section 224 of the Companies Act. There has been Companies (Winding-up) Rules. The issue whether or not O.2, r.2 of the High Court Rules applies to an application filed under Companies Act, in my opinion, raises an arguable point in appeal and has real prospect of success.

[67] As Lord Woolf MR said in Swain's case (supra),the court considering a request for permission (leave to appeal) is not required to analyse whether the proposed grounds of appeal will succeed, but merely there is prospect of success. I have analysed the proposed grounds of appeal submitted by the petitioner. In my opinion, there is prospect of success on the proposed grounds of appeal namely grounds ii to vi.

Ex tempore ruling

[68] I need to comment on the first ground of appeal before I conclude this ruling. It is that the Master erred in law and in fact when he entitled his ruling as an "Extempore Ruling" when the hearing took place on 3 March, 2015 and the ruling was delivered on 30th April, 2015.

[69] Ex tempore judgments (from Latin, meaning 'on the spur of the moment, without premeditation')are those given without preparation immediately after the hearing as opposed to reserved judgments.

[70] The learned Master entitled his ruling as an 'Extempore Ruling' when in fact it is a refined written prose of a reserved ruling. The hearing took place on 3 March 2015 and the ruling was delivered on 30 April 2015. So it is a reserved ruling, not ex tempore ruling.

[71] The ground that the learned Master erred when he entitled his ruling as an 'Extempore Ruling' when it was not so was not argued by counsel for the petitioner hence may be deemed to have been abandoned. In any event, the petitioner will not succeed on this ground as no prejudice caused to any party.

Conclusion

[72] I have examined the application for leave to appeal the interlocutory decision of the learned Master. I find the circumstances are exceptional. I am, for the above reasons, unable to form a clear opinion adverse to the success of the proposed appeal. I would therefore grant leave to appeal the decision of the learned Master dated 30 April 2015. I would order that costs shall be in the appeal. The petitioner is to file its appeal within 7 days of the date of this ruling as required by Order 59, rule 9 (b) of the High Court Rules 1988, as amended.

The result

1. Leave to appeal the interlocutory decision of the Master delivered on 30 April 2015 is granted.
   
2. The petitioner will file its appeal within 7 days of the date of this ruling.
   
3. Costs shall be in the appeal.
   

M H Mohamed Ajmeer
JUDGE

At Lautoka
30 Oct. 15