Trade Furniture & Joinery Group Ltd v Singh [2021] FJHC 389; HBM22.2021 (17 December 2021)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

HBM 22 OF 2021

IN THE MATTER of a statutory demand dated 26^th August 2021 taken out by SAILESH

SINGH (the Respondent) against TRADE FURNITURE & JOINERY GROUP PTE LIMITED

(the Applicant) and served on the Applicant on the 27^th August, 2021.

A N D

IN THE MATTER of an application by the Applicant for an Order aside the Statutory Demand

pursuant to Section 516 of the Companies Act.

BETWEEN:

TRADE FURNITURE & JOINERY GROUP LIMITED a limited liability company incorporated

in Fiji and having its registered office at Lot 1 Vunirewa Subdivision, Kerebula, Nadi Backroad,

Nadi.

APPLICANT

AND:

SAILESH SINGH of Nacovi, Nadi, Businessman.

RESPONDENT

Appearances: Ms. Nair for Applicant
Mr. Sailo for Respondent
Date of Hearing: 22 October 2021
Date of Ruling: 17 December 2021

R U L I N G

INTRODUCTION

1. In this case, an aggrieved former employee who managed to get an award after formally proving his case before the Employment Tribunal, had sought to enforce the award by issuing a statutory demand against the limited liability company which was his former employer.
   
2. The matter initially began in Employment Relations Tribunal at Lautoka where there the employee was the grievor seeking compensation from for unlawful and unfair termination.
   
3. The matter was formally proved on 24 October 2017 due to non-appearance by the employer and his solicitors. The Formal Proof Ruling was delivered on 26 October 2017.
   
4. The employer has failed to abide by the Orders of the Tribunal. On 20 December 2017, the employer filed an application to set aside the default judgment. The application was listed for 19 January 2018 at ERT Lautoka.
   
5. At some point one way or another, the matter was listed for hearing on 17 August 2018 at Sigatoka Magistrates Court.
   
6. However, on 17 August 2018, neither the employer nor its solicitors appeared for the hearing. Accordingly, the Tribunal made the following Orders:
   • (1) Notice of Motion to set aside is struck out for non-appearance of the Applicant.
   • (2) Costs of $100.00 to be paid to grievor within 21 days.
7. The employee then issued a Statutory Demand Winding Up Notice dated on 26 August 2021 and served the same on 27 of August 2021.
   
8. Before me now is a Summons to Set Aside Statutory Demand filed on 2 September 2021 by Nilesh Sharma Lawyers. This application is filed pursuant to Sections 516, 57 and 524 of the Companies Act 2015. The application is supported by an affidavit of Madhavi Nair sworn on 01 September 2021 and filed on 02 September 2021.
   
9. The Respondent filed and served its Affidavit in Opposition on 08 October 2021.
   

AFFIDAVIT IN SUPPORT

10. Nair deposes as follows:
    • (1) I am one of the Directors of the above named Applicant Company. I am familiar with this matter and I depose to the contents of this Affidavit from my own personal knowledge save where stated, I am advised and verily believe the contents herein to be true and accurate. Attached herewith and annexed as “MN1” is a copy of the authority from the Company for me to swear this Affidavit on its behalf.
      
    • (2) I am making this affidavit in support of our application to set aside the Statutory Demand served on our office on or about 27 of August 2021 by Salesh Singh [hereinafter referred to as the “Respondent Company”]. Attached herewith and annexed as “MN2” is a copy of the Statutory Demand dated 26 of August 2021.
      
    • (3) The background of this application is that the Respondent was formerly employed by the Applicant until his employment was terminated for lawful cause on 28 August 2015. He subsequently filed an employment grievance as Grievance Number 128 of 2015 claiming that the dismissal was unfair.
      
    • (4) The Tribunal had set the hearing date of the grievance on 31 of March 2017 but on 24 of October 2017 the Tribunal informed the Applicant that the hearing date has been vacated and will be informed of the new date. Attached herewith and annexed as “MN3” is the e-mail notification from the Tribunal dated 29 March 2017.
      
    • (5) The Applicant was not informed of the next hearing date and on 24 October 2017 the Tribunal delivered a default judgment due to the non-appearance of the Applicant as below; attached herewith and annexed as “MN4” is the order of the Tribunal.
      • (i) The employer pays the grievor the sum equivalent to six month’s pay for unlawful dismissal.
      • (ii) Damages for unfair dismissal in the sum of $3,000.00.
      • (iii) Post judgment interests of 5%.
      • (iv) Parties are to bear their own costs.
        
    • (6) The Applicant filed an application to set aside the default judgment on 20 December 2017 and further to the directions of the Tribunal which was heard on or about 17 August 2018 and the Tribunal is yet to deliver any written ruling. Attached herewith and annexed as “MN5” is a copy of the Motion and Affidavit in Support.
      
    • (7) Further to the Directions of the Tribunal, the Applicant filed its written submission in support of the application to set aside the default judgment on 16 April 2018. Attached herewith and annexed as “MN6” is a copy of the submission.
      
    • (8) The hearing was conducted briefly on submissions on or about 17 August 2018 where the Respondent was represented by Mr. Keveuli Tunidau of Kevueli Tunidau Lawyers and the Applicant was represented by Mr. Damodaran Nair of Oceanica IP Law.
      
    • (9) The Applicant had followed on the ruling on numerous occasions and wrote to the Registrar of the Employment Tribunal on the 3 July 2020 but there has not been any ruling delivered to date. Attached herewith and annexed as “MN7” is a copy of the letter.
      
    • (10) I am advised and verily believe that the Statutory Demand dated 26 August 2021 is ill-conceived and an abuse of process as the Tribunal has not issued any written ruling on the application for setting aside of the default judgment.
      
    • (11) The Applicant Company further strongly disputes the amount of $10,396.53 that has been claimed in the Statutory Demand as debt owed to the Respondent and further say that the amount has been wrongly stated.
      
    • (12) I am advised by my solicitors and of the opinion that under the Employment Act there is specific procedure for enforcement of an Order of the Tribunal which the Respondent has not exhausted.
      
    • (13) I am further advised by my Solicitors and of the opinion that the statutory demand is an abuse of process and must be set aside as the Employment Relations Tribunal has not issued any decision on the Applicant’s application to set aside the default judgment.
      
    • (14) The Applicant seeks that the Statutory Demand be dismissed with costs as sought in our application.

AFFIDAVIT IN OPPOSITION

11. An affidavit of Sailesh Singh sworn on 05 October 2021 and filed on 08 October 2021 is filed herein opposition. Singh deposes as follows:
    • (1) That I am the Respondent named in the action herein.
      
    • (2) That save where otherwise expressly stated the contents of this Affidavit are true in so far as they are within my personal knowledge. Where the contents are not within my personal knowledge, they are true to the best of my knowledge, information and belief.
      
    • (3) That I refer to the Affidavit in Support of Setting Aside Statutory Demand of Madhavi Nair filed on 02 September 2021 in the application herein (said affidavit).
      
    • (4) That as to the contents of the paragraph 3 of the said Affidavit I state as follows;
      1. That I admit that I was employed by Applicant Employer until I was allegedly terminated on 28 August 2015.
      2. That I admit that I filed an Employment Grievance Action being Action No: 128 of 2015 at the Employment Relations Tribunal in Lautoka claiming that the dismissal was unfair.
      100. That the Employment Relations Tribunal delivered Formal Proof Ruling on 26 October 2017 and it was ordered that my dismissal was unfair by the Applicant Employer. Annexed herein and marked “SS-1” a copy of the Formal Proof Ruling delivered on 26 October 2017.
           

(5) That as to the contents paragraph 4 of the said Affidavit, I state as follows;

1. That I admit the matter was fixed for Hearing on 31 March 2017 but it was adjourned and the same was called on 30 March 2017 for Mention to fix a new Hearing date as it is clearly mentioned in the email from Employment Relations Tribunal being annexed “MN3” of the Applicant’s affidavit.
2. That on 30 March 2017 the matter was adjourned to 24 October 2017 for Hearing and since there was no appearance by the Applicant and or his Solicitors, the Tribunal proceed to formally proof the matter.

100. That the rest of the contents of paragraph 4 of the said affidavit is unknown to me therefore, I deny and oppose the same.
     

(6) That as to paragraph 5 of the said affidavit I state as follows;

1. That the matter was fixed for Hearing on 30 March 2017 and both parties were present before Tribunal on 30 March 2017.
2. That I deny the Tribunal delivered default judgment against the Applicant Employer on 24 October 2017 as alleged by the Applicant Employer as it was Formally Proofed and the said Ruling is annexed above being annexure “SS- 1”.
   

(7) That as to paragraph 6 of the said affidavit I state as follows;

1. That I admit that the Applicant Employer filed an application to set aside Default Judgment on 20 December 2017 which was called in Lautoka Tribunal and was adjourned to 17 August 2018 to be heard at Sigatoka Court.
2. That on 17 August 2018 the Applicant/ Employer and or its Solicitor Mr. Damodhar Nair of Oceania IP Law did not appear before the Tribunal sitting at Sigatoka Court and the Tribunal sitting at Sigatoka Court ruled that the Notice of Motion to set aside by the Applicant was struck out for non- appearance of the Applicant with cost of $100.00 to be paid to the Respondent grievor within 21 days. Annexed herein and marked “SS-2” a copy of the note given by the Clerk at Sigatoka Court on 17 August 2018.

100. The rest of the allegations of paragraph 6 as to the Tribunal not delivering written ruling is incorrect and or misleading and or made up by the Applicant in Order to set aside the Statutory Demand Notice issued by my Solicitors on my behalf dated on 26 August 2021.
     

(8) That I am unaware of contents of paragraph 7 of the said Affidavit and further say that no such directive was made by the Tribunal on 17 August 2018 as there was appearance by the Applicant and his Solicitors on 17 August 2018 before the Tribunal. The Applicant is making false allegations and false accusations in order to avoid payments and set aside the Statutory Demand Notice issued by my Solicitors for Winding Up.

(9) That I deny and dispute paragraph 8 of the said Affidavit, as the Applicant and his Solicitors never appeared before the Tribunal on 17 August 2018. Further, I instructed my Solicitors to conduct a registry search with Employment Relations Tribunal and it is confirmed that the application to set aside was struck out due to non-appearance of the Applicant Employer. Annexed herein and marked “SS-3” a copy of the email correspondences with the Employment Relations Tribunal.

(10) That I am unaware of the contents of paragraph 9 of the said Affidavit therefore I deny the same and further say that the Tribunal would have replied to the alleged letter dated the 03 July 2020 which is annexed in the Applicant’s Affidavit marked as annexure “MN7”. The Applicant Employer has failed to provide any evidence to show that the same letter was served or delivered to the Employment Relations Tribunal.

(11) That I dispute the contents of paragraph 10 of the said Affidavit on the grounds stated hereinabove in my Affidavit Opposition and further say that the Applicants present application to set aside Statutory Demand Notice is vexatious and frivolous.

(12) That I deny and dispute that paragraph 11 of the said Affidavit that the interest and other associated cost for the enforcement of Judgment of the Order made on 26 October 2017 accumulates in the sum of $10396.53 and I had incurred further costs of defending the present vexatious and frivolous application filed by the Applicant Employer.

(13) That as to the contents of paragraph 12 of the said Affidavit I say as there is no specific procedure in the Employment Relations Act 2007. Since the Order is against a Company I can rely on the Companies Act 2015 to enforce the said Order.

(14) That I deny contents of paragraph 13 of the said Affidavit and say that the Applicant Employer is making false allegations and accusations in order to avoid making lawful payment as per the Order made by the Tribunal.

(15) That I pray to this Honorable Court that the Applicants present application is vexatious and frivolous and ought to be struck out with cost to be summarily assessed in the sum of $2500.

AFFIDAVIT IN REPLY

12. Nair has sworn an affidavit in reply on 20 October 2021 and which was filed on the same day. He deposes as follows:
    • (1) I am one of the Directors of the above named Applicant Company. I seek leave of this Honorable Court to respond to the contentious issues raised by the Respondents in the affidavit in opposition filed on 08 of October 2021.
      
    • (2) That in reply to paragraph 5(b) and (c), I say there was no notification issued by the Employment Tribunal confirming the hearing date of the Employment Grievance filed by the Respondent and in any event the hearing date is fixed in consultation and agreement of all the parties and not ex-parte.
      
    • (3) That in reply to paragraph 7 (a), I say that the grievance was reported in Nadi and all sittings of the Tribunal were held in either Nadi or Lautoka but not in Sigatoka. The Respondent is put to strict proof to provide evidence of the Notice of Adjournment in this regard.
      
    • (4) That in reply to paragraph 7 (b), I say from the copy of the purported file note it cannot be established that it is from the file records of the proceeding and the sitting of the Tribunal was at Sigatoka. I am advised that if there was any such Order, then it should have been sealed and served with the Applicant.
      
    • (5) That I further say that the statement by the Respondent that the proceeding was held at Sigatoka Magistrates Court is false, misleading and borders on perjury for which the deponent should be liable and this Honorable Court is requested to have the entire Affidavit in Opposition expunged from the records and this proceedings.
      
    • (6) That the conformation given by the Registrar in the e-mail dated 13 October 2021 has confirmed that the application for setting aside was dismissed due to non-appearance but there has not been any evidence disclosed that the applicant was notified of the hearing date as such appropriate application will be filed in the Employment Court to appeal the substantive as well as the interlocutory decisions of the Employment Tribunal. Copy of the said e-mail dated 13 October 2021 is annexed as annexure “TFJ-1”.
      
    • (7) That in reply to paragraph 7 (c), I say the statutory demand notice had been erroneously issued as the Respondent had not exhausted the procedures provided under the Employment Act for compliance. The decision of the Employment Tribunal was given under the Employment Act that has specific provisions for enforcement of any order(s) of the Tribunal for non-compliance.
      
    • (8) That in reply to paragraph 8, I say that the acceptance of the written submissions filed by the Applicant in the Employment Tribunal was done pursuant to the directive given by the Tribunal which the Respondent failed to comply.
      
    • (9) That in reply to paragraph 9 I say that any order(s) of the Employment Tribunal has to be sealed and served on the other party and in this instance the Respondent cannot enforce the Order of the Tribunal under the Companies Act when there is specific provision under the Employment Act pursuant to which the Tribunal determined the employment grievance of the Respondent for enforcement of any Order(s).
      
    • (10) That in reply to paragraphs 11 and 12, I say that the Respondent was paid $4.00 per hour and worked 45 hours per week, therefore the amount if substantiated would be less than $10,000.00 that is mandated for the issuance of the Statutory Demand Notice for Winding Up any Company under the Companies Act. Copy of the acknowledgment of payment of wages by the Respondent upon his termination of employment is annexed as annexure “FJJL-2”.
      
    • (11) I further say that the costs incurred for Solicitors costs cannot be construed as the debt owed by the Applicant as it is the personal arrangement between the Solicitor and Client.
      
    • (12) That in reply to paragraph 13, I say that the said formal proof decision cannot be construed as debt owed to the Respondent as it is compensation for unfair and unlawful dismissal under the specific provisions of the Employment Act.
      
    • (13) I further say that any final order of the Tribunal is subject to appeal and or compliance as provided under the Employment Act pursuant to which the Tribunal made the determination by formal proof.
      
    • (14) The Applicant seeks that the Statutory Demand be dismissed with costs due to the following reasons;
      1. Is defective.
      2. The substantiated amount is less than the threshold for winding up any

Company.

100. The Respondent has initiated the wrong procedure for compliance.

DISCUSSION

13. The employer is seeking an order that the employee be restrained from issuing and or advertising a petition for winding up the employer-company based on the Demand Notice as well as a stay of proceedings on the said Statutory Demand. The main grounds are as follows:
    1. that the Tribunal had set the hearing date of the grievance on 31 March 2017 but on 24 October 2017 the Tribunal informed the employer that the hearing date had been vacated and that the employer would be notified of the new date.
    2. the employer was never informed of the next hearing date and on 24 October 2017 the Tribunal delivered a Default Judgment due to non-appearance of the employer.
    100. the employer filed an application to set aside the Default Judgment on 20 December 2017 and further to the directions of the Tribunal which was heard on or about 17 August 2018 and the Tribunal is yet to deliver any written ruling.
    4. the hearing was conducted briefly on submissions on or about 17 August 2018. The employer had followed up on the ruling on numerous occasions however the Employment Relations Tribunal has always informed the employer that the Ruling was yet to be delivered.
       

RESPONDENT’S CASE

14. The Respondent (employee) was employed by Applicant Employer until he was allegedly terminated on 28 August 2015. That he filed an Employment Grievance Action being Action No: 128 of 2015 at the Employment Relations Tribunal in Lautoka claiming that the dismissal was unfair.
15. That the Employment Relations Tribunal delivered Formal Proof Ruling on 26 October 2017 and it was ordered that my dismissal was unfair by the Applicant Employer.
    
16. The matter was fixed for hearing on 30 March 2017 but it was adjourned and the same was called on 30 March 2017 for mention to fix a new hearing date. Both parties were present. Then on 30 March 2017 the matter was adjourned to 24 October 2017 for hearing and since there was no appearance by the employer and or his solicitors, the Tribunal proceed to hear formal proof of the matter.
    
17. The employer filed an application to set aside default judgment on 20 December 2017 which was called in Lautoka Tribunal and was adjourned to 17 August 2018 to be heard in Sigatoka Court.
    
18. On 17 August 2018 the employer and or its solicitor did not appear before the Tribunal sitting at Sigatoka Court and the Tribunal sitting at Sigatoka Court ruled that the Notice of Motion to set aside by the employer was struck out for non-appearance with cost of $100.00 to be paid to the employee within 21 days.
    

LATEST DEVELOPMENT

19. I have since learnt vide a supplementary affidavit sworn by Govind Goundar on 13 December 2021 that the employer has since on 20 October 2021 filed in the Employment Division of the High Court a Motion seeking a Stay of the Tribunal’s Orders as well as a Notice and Grounds of Appeal. Both matters were listed before the Learned Mansoor J on 09 December 2021 who has given directions for the preparation of the copy records.
    

CONCLUSION

20. In the circumstances, I think the best option is to set aside the statutory demand. However, I should think that the Applicant (Trade Furniture & Joinery Group Limited) should pay the Respondent’s costs which I summarily assess at one thousand dollars only.
    

...................................

Anare Tuilevuka

JUDGE

Lautoka

17 December 2021