Naidu v Gulf Investment (Fiji) Pty Ltd [2022] FJHC 23; HBC217.2019 (21 January 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 217 of 2019

BETWEEN: KRISHNA SAMI NAIDU of 29 Belo Street, Samabula, Suva, Company Director and Businessman

Plaintiff

AND: GULF INVESTMENT (FIJI) PTY LIMITED a limited liability company having its registered office at 184 Queens Road, Nadi

First Defendant

AND: VONSELA LIMITED a limited liability company incorporated in Fiji having its registered offices at AVOSER LIMITED, Lot 11 Industrial Subdivision, Denarau, Nadi, Fiji ("Vonsela").

Second Defendant

AND: AVOSER LIMITED, a limited liability company incorporated in Fiji having its registered office at Lot 11 Industrial Subdivision, Denarau, Nadi, Fiji (hereinafter referred to as "the Guarantor" of the first part)

Third Defendant

AND: ANATH REDDY, Company Director of VONSELA LIMITED a limited liability company having its registered office at Lot 11 Industrial Subdivision, Denarau, Nadi Fiji (hereinafter the Director referred to as “the Guarantor” of the first part).

Fourth Defendant

AND: WESTPAC BANKING CORPORATION of 1 Thomson Street, Suva.

Fifth Defendant

Counsel : Plaintiff: Mr. D. Sharma

: Defendant: Ms. L. Prasad
Date of Hearing : 22.11.2021
Date of Judgment : 21.01.2022

JUDGMENT

INTRODUCTION

1. Plaintiff filed this action against first second third and fourth Defendants from further dealing with the properties in Crown Lease 16505 ND 5175, Maquleve (Part of) Viti Legu, Ba (4.1480 ha) and CL 16928, SO 5667 Lot 1, Nadi in the Province of Ba at Denarau Island (Part of) 208.4129 ha and all other lots issued (the Properties) pursuant to any subdivisions of these titles.
   
2. The Properties are owned by first Defendant and they are mortgaged to fifth Defendant.
   
3. After hearing counsel for first to fourth Defendant had informed that first Defendant was wound up on 8.11.2021.
   
4. This application for injection was heard on 22.11.2021.
   
5. By the time injection application was heard a winding up order was made by the court against first Defendant.
   
6. Section 531 of Companies Act 2015 states;

“531.When a winding up order has been made or an interim liquidator has been appointed under section 537, no action or proceeding must be proceeded with or commenced against the Company, except by leave of the Court and subject to such terms as the Court may impose.” (emphasis added)

7. Upon making a winding up order the petitioner in winding up application must within 7 days of ‘passing and entering of’, winding up order must advertise in newspaper and Gazette. (see Rule 23 of Companies (Winding Up) Rules 2015)
   
8. Accordingly winding up order was advertised on 24.11.2021. This was two days after hearing of this application for injunction against Defendants (excluding fifth Defendant) relating to the Properties of first Defendant.
   
9. The application for injunctive relief becomes futile and both counsel in their written submission agreed on this point. (see further submission of Plaintiff paragraph 20 and paragraph 9 of submissions of Defendants). So the motion filed on 8/10/2021 is struck off.
   
10. Considering circumstances of the case I do not award costs.

FINAL ORDERS

1. Notice of motion filed seeking interim injunction filed on 8/10/2021 is struck off.
2. No order as to costs.
   

Dated at Suva this 21^st day of January, 2022.

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

Justice Deepthi Amaratunga

High Court, Suva