Beijing Quality Online International Trading Co. Ltd v Quality Online (Fiji) Pte Ltd [2022] FJHC 32; HBC354.2019 (4 February 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 354 of 2019

BETWEEN:

BEIJING QUALITY ONLINE INTERNATIONAL TRADING CO. LTD of Room 715, No. 23 Huixin East Street, Chaoyang District, Beijing, People’s Republic of China.

PLAINTIFF

AND:

QUALITY ONLINE (FIJI) PTE LTD a limited liability company having its registered office at Lot 1 Daya Mati Road, Vatuwaqa, Suva.

FIRST DEFENDANT

SANGEETA DEVI REDDY-BRIDGEMAN of Naitata Road, Navua, Director.

SECOND DEFENDANT

BEFORE:
Hon. Justice Vishwa Datt Sharma

COUNSELS:
Mr O’Driscoll for the Plaintiff
Mr Tuitoga for the Defendants

Date of Decision:
04^th February 2022 at 9.30am

DECISION
[Inter-Parte Summons dated 08^th September 2020 pursuant to Order 29 Rule 2
of the High Court Rules 1998 and Inherent Jurisdiction of this Court.]

Introduction

1. The Plaintiff filed the current Inter-parte Summons on 08^th September 2020 and now seeks for the following Orders:
   1. That the Plaintiff be granted custody of and be permitted to use the equipment and machinery for itself, subject to relevant approvals, including Investments Fiji and the landlord of the existing bottling factory situated on part of Crown Grant No. 1366;
   2. As an alternative to (i) for the Plaintiff to have all the equipment and machinery returned to it by the Defendants from wherever it may be and to remain in the Plaintiff’s custody thereafter pending determination of this action.
   3. That the Defendant pay the costs of and incidental to this application.
      
2. The Application is made upon the grounds contained in the Affidavit deposed by Zhihao He and pursuant to Order 29 Rule 2 of the High Court Rules 1998 and the Inherent Jurisdiction of this Honourable Court.
3. The Defendant(s) filed their Affidavits in Reply on 10^th November 2020 and made a general denial to the allegations contained in He’s affidavit, unless expressly admitted therein.
4. The Defendant(s) furnished Court with their written submissions. However, the Plaintiff did not do so.
   

Background Facts

5. The Plaintiff filed a Writ of Summons together with an Inter-parte Summons on 09^th October 2019.
6. In its Inter-parte Summons, the Plaintiff sought for the following Orders:-
   1. That an early date be granted for this application to be heard.
   2. That the Defendants be restrained from operating HFC Bank account held in the name of the First Defendant until determination of this action;
   3. That the Defendants be restrained from using all the equipment and machinery to the Plaintiff shipped by the Plaintiff to the First Defendant as consignee as per the packing lists attached within, including any potential use of the same as security;
   4. That the Plaintiff be granted custody of and be permitted to use the equipment and machinery for itself, subject to relevant approvals, including Investments Fiji and the landlord of the existing bottling factory situated on part of Crown Grant no. 1366;
   5. As an alternative to (iii) for the Plaintiff to have all the equipment and machinery returned to it by the Defendants from wherever it may be and to remain the Plaintiff’s custody thereafter pending determination of this action.
   6. That the Defendant pay the costs of and incidental to this application.
7. On 04^th November 2019, the Court upon hearing the Counsels for the Plaintiff and the Defendant(s) made the following Orders which were accordingly sealed on 06^th November 2019:-
   1. As per Order (iii) of the Inter-Partes Summons the Defendants hereby give an undertaking that they would not use, sell or in any way dispose any machinery shipped by the Plaintiff to the Defendant as per consignee pertaining same to be used as security and further as per packing list attached to remain on the premises in Yarawa, Navua.
   2. In terms of Orders/relief sought at (i), (ii), (iv), (v) and (vi) is adjourned for Hearing and determination on 25^th November 2019 at 10am. Simultaneous written submission to be filed 2 days prior on 22/11/2019.
8. On 18^th March 2020, the Remaining Orders (i), (ii), (iv), (v) and (vi) on the Summons dated 09^th October 2019 was determined and the following Orders were made:-
   1. Order sought at 1(i) was taken care of by case management and accordingly heard and determined.
   2. Orders sought at 1(ii) as sought therein is refused.
   3. Order sought at 1(iii) as sought therein is granted in terms of the undertaking given by the Defendants restraining the Defendants from using all the equipment and machinery to the Plaintiff shipped by the Plaintiff to the First Defendant as consignee as per the packing lists attached within to remain on the premises in Yarawa,Navua, including any potential use of the same as security accordingly.
   4. Order sought at 1(iv) is refused.
   5. Order sought at 1(v) is refused.
   6. The Plaintiff to pay the Defendants summarily assessed costs at $500 within 14 days timeframe.
   7. The File is now remitted to the SCO for assignment of a date before the Master of the High Court for further directions and completion of the cause.
   8. Orders accordingly.
9. It will be noted that the Orders sought and refused at (iv) and (v) of the Summons of 09^th October 2019 are identical and/or the same as sought at Orders (i) and (ii) in the current Summons of 08^th September 2020.
   

Determination

10. The issue before this Court to determine is whether the Plaintiff can re-litigate the same interlocutory applications for the Orders as enumerated hereunder after they had already been determined by this Court on 16^th March 2020?
    • (i) That the Plaintiff be granted custody of and be permitted to use the equipment and machinery for itself, subject to relevant approvals, including Investments Fiji and the landlord of the existing bottling factory situated on part of Crown Grant No. 1366;
    • (ii) As an alternative to (i) for the Plaintiff to have all the equipment and machinery returned to it by the Defendants from wherever it may be and to remain in the Plaintiff’s custody thereafter pending determination of this action.
11. The Plaintiff’s contention is that there has been the following changes in the circumstances as deposed in the Affidavit of Zhihao He:
    1. The piece of land described as Yarawa West situated at Serua, Viti Levu being Lease No. 55145 containing an area of 20 acres (Property) that was leased to the First Defendant has ceased and is now leased to the Plaintiff’s sister company Vitian Beverages Pte Limited.
    2. The landlord of the Property, Abdul Sattar (landlord) is awaiting the issuance of the provisional title.
    100. The Plaintiff wants its sister company, Vitian Beverages Pte Limited to take possession and use of all the materials and machines in the factory at the Property in order to use for their operations.
    4. The problem that the Plaintiff faces is that the First Defendant is the consignee of the materials and machines according to the records at the Fiji Revenue and Customs Authority thus the First Defendant is the owner of the materials and the machines.
    5. The Plaintiff states that given their circumstances now, they are seeking Orders in terms of the September 2020 Summons.
12. However, the Defendant(s) contention is that there are no significant changes of circumstances that should allow the Plaintiff to re-litigate the application for Orders.
13. In any event, the Defendant(s) submitted that the issues between Vitian Beverages Pte Limited and the Plaintiff do not concern the Defendants and are therefore irrelevant. In the same manner, issues between the Defendants and the landlord do not concern the Plaintiff. With respect, Vitian Beverages Pte Limited and the landlord are not parties to these proceeding. This Court should not be dealing with issues concerning them.
14. The Plaintiff’s position has not changed significantly. The Plaintiff was not a registered lessee when the October 2019 Summons was filed. It is still not the registered lessee now. Nothing turns on the “new” information provided by the Plaintiff.
15. The Defendants have already given an undertaking that they would not use any equipment or machinery that is shipped by the Plaintiff to the Defendant(s) at the property. The equipment and machinery will be undisturbed pursuant to the Orders of the Court of 16^th of March 2020.
16. Reference is made to the case of Ajimat Ali v Merewai M. Raniga [1996] 42 FLR 182 the following observations were held by Justice Lyons which is applicable to this case:

“The general rule is that parties are not allowed to re-litigate interlocutory applications in the absence of a change of circumstances or the discovery of circumstances which it was not possible previously to place before the Court.”

17. In Investment Corporation of Fiji Ltd v. Offshore Oil NL [1984] FJSC 51, Justice Rooney highlighted the following dicta:-

“A modern instance of the principle is to be found in Chanel Ltd. v. F W Woolworth & Co [1981] 1 All ER 745 in which Buckley LJ said at 751:-

“Even in interlocutory matters a party cannot fight over again a battle which has already been fought unless there has been some significant change of circumstances, or the party has become aware of facts which he could not reasonable have known, or found out, in time for the first encounter.”

18. It is obvious that the Plaintiff is re-litigating the same Interlocutory applications for Orders [as stated at paragraph 9 hereinabove] after they had already been determined by this Court on 16^th March 2020.
19. The Plaintiff’s application before me of 09^th October 2019 seeking Orders are substantially the same and identical to the Orders sought in application of 08^th September 2020.
20. Parties to the proceedings are only allowed to re-litigate the same interlocutory applications for Orders provided there are substantial or any change in their circumstances since the last time of their application before Court.
21. I find that the Plaintiff has failed to establish to Court any significant changes of circumstances that would have allowed this Court to accede to his current application for Orders of 08^th September 2020.
    

Conclusion

22. Since there are no significant changes of circumstances established by the Plaintiff, I have no alternative but to dismiss the Plaintiff’s application of 08^th September 2020 accordingly.
    

Costs

23. The matter proceeded to hearing with Affidavits filed together with oral submissions and written submissions made to this Court. It is only appropriate and fair that the Defendant(s) ought to be granted a summarily assessed costs of $800 to be paid by the Plaintiff to the Defendant(s).
    

Orders

1. The Plaintiff’s application of 08^th September 2020 is dismissed accordingly.
2. The Plaintiff to pay the Defendant(s) summarily assessed cost of $800.00.
3. The substantive matter to take its normal cause of action.
   

DATED at SUVA this 04^th day of February, 2022.

VISHWA DATT SHARMA
JUDGE

cc: O’Driscoll & Co., Suva

Haniff Tuitoga, Suva