Kyeong Yeol Baek v Chang Tong Seafood Pte Ltd [2022] FJHC 195; HBG01.2022 (3 May 2022)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

Action No. HBG 01 of 2022

BETWEEN

KYEONG YEOL BAEK of Scott Street, Suva.

PLAINTIFF

AND

CHANG TONG SEAFOOD PTE LTD, a limited liability company having

its registered office at Shed 8, Freestone Road,

Mua-I-Walu Bay Suva, Fiji.

FIRST DEFENDANT

AND

K-CAMELLIA a ship presently in Mua-I-Walu Bay,

Suva, Fiji.

SECOND DEFENDANT IN REM

Counsel : Ms. Singh K. with Mr. Hussain M. for the Plaintiff.

Mr. Chand D for the Defendant.

Date of Hearing : 13^th April 2022

Date of Ruling : 03^rd May 2022

Ruling

[1] The plaintiff filed ex-parte notice of motion pursuant to Order 2 of the High Court (Admiralty) Rules 1893, which was subsequently converted in to an inter parte notice of motion by the court, seeking the following orders:

1. A warrant of arrest of the vessel “K-Camellia”.
2. Costs in the cause.

[2] The plaintiff has also filed a writ action seeking the following reliefs:

1. Judgment against the defendant in the sum of USD255,880.49 (Two Hundred and Fifty-Five-Thousand Eight-Hundred and Eighty Dollars and Forty-Nine Cents);
2. Judgment against the defendant in the sum of FJD64,950.23 (Sixty-Four Thousand Nine-Hundred and Fifty Dollars and Twenty-Three Cents);

100. The possession and ownership of the Vessel “K-Camellia” to be transferred to the plaintiff;

4. Further and in the alternative damages for breach of the agreement;
5. Costs of this action on a full indemnity basis;
6. Such further and other reliefs as this Honourable Court deems fit.

[3] The plaintiff and the 1^st defendant on 04^th February 2022 entered into a sale and purchase agreement to sell all the shares of the 1^st defendant and on the same day they executed a deed of settlement and indemnity. In paragraph 9 of the Deed of settlement and indemnity bond it is stated that the vendor ensures that the vessel and the company shall be transferred without any charges, encumbrance and free from any claim.

[4] These proceedings were instituted alleging that the 1^st defendant failed to pay as agreed.

[5] The learned counsel for the 1^st defendant submitted that the vessel is registered in Fiji and although it goes out of Fiji seas for fishing it comes back to Fiji. He also submitted that the defendant is a company registered in Fiji.

[6] However, the 1^st defendant does not deny the allegation that he did not make the payments as agreed.

ORDERS

(1) A warrant of arrest of Vessel “K – Camellia is issued.
(2) The Admiralty Marshal [Senior Court Officer – High Court (Civil)] to take necessary steps to comply with this order.
(3) Costs in the cause.

Lyone Seneviratne

JUDGE

03^rd May 2022