IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBE 16 OF 2023

IN THE MATTER of the Companies Act 2015.

AND
IN THE MATTER of an application under Section 176 of the Companies Act 2015.

AND
IN THE MATTER of Leave to Appeal from the Ruling made on the 12th September ,2024 by His Lordship Justice M. Mackie on final Orders (a), (b), (e ) , (f),(g).

BETWEEN	:	
ZHENMING WU of 7 Kiwi Place, Simla, Lautoka.  Company Director.
THE 1st APPELLANT / THE ORIGINAL 1st DEFENDANT

AND		
CAO JIECHAO of 7 Kiwi Place, Simla, Lautoka. Company Director.
THE 2nd APPELLANT / THE ORIGINAL 2nd DEFENDANT.

AND		
HONG KONG DOOR AND WINDOW COMPANY PTE LIMITED a limited liability company having its registered office at 15 Nasoki Street, Lautoka, Fiji Islands.
THE 3rd APPELLANT/ THE ORIGINAL 3rd DEFENDANT

AND   		
ZHIHUA HUANG, YUNCHAUN HE, GUANGXIU XUE, DIAOXIA CHEN, OINYU HUANG & JIANYU YI all of Lautoka, Company Directors respectively.
THE 1st RESPONDENTS/ THE ORIGINAL 1st PLAINTIFFS

AND	:	
TIAN EN GROUP (FIJI) PTE LTD a limited liability company duly incorporated under the Companies Act of Fiji and having its registered office at 15 Nasoki Street, Lautoka, Fiji Islands.
THE 2nd RESPONDENT / THE ORIGINAL 2nd PLAINTIFF

BEFORE 		:	Hon. Justice Mohamed Mackie.

APPEARANCES	:	Mr Nand. S - For the Defendant- Appellants (Applicants)
:	Ms N. Khan - For the Plaintiffs- Respondents.

HEARING 		:            On 28th November 2024.
WRITTEN SUBMISSION:         Filed by the Defendant- Applicants on 28th Nov 2024.
Not filed by the Plaintiff- Respondents.

DATE OF RULING 	:         22nd January 2025 at 10:00 am.

RULING.

A.	INTRODUCTION:

1.	This Ruling pertains to the hearing held before me on 28th November 2024, in relation to the Defendant-Appellants’ (“the Applicants’”) SUMMONS dated 15th October 2024, filed on 16th October 2024 and came up before me on 30th October 2024, seeking the following reliefs;

1)	AN ORDER that leave be granted to Appeal the interlocutory judgment dated12th September 2024 for the within matter.

2)	AN ORDER that Orders (a), (b), (e), (f), (g) are stayed until the determination of this Appeal,

3)	THAT the time for service of this Summons be abridged,

4)	THAT the Costs of this application abide by the result of this Appeal,

5)	THAT such further and/or other orders be made which deems just and expedient. 

2.	The Summons states that it is filed upon the grounds stated in the Affidavit of ZHENMING WU and JIECHAO CAO filed in support of the Application. But, I do not find an Affidavit filed along with this Summons, except for the Affidavit filed on 30th September 2024, along with the previous Summons, which was withdrawn on 08th October 2024, reserving the liberty to file the fresh Summons (the Summons in hand).

3.	The Summons also states that it is filed pursuant to Order 3 Rule 4, Order 45 Rule 10 of the High Court Rules 1988, Fiji  , Inherent jurisdiction  of the Court , Section 12 (1) (a)  and 12 (2) (f)  and Section 20 (1) of the Court of Appeal  Act 1949.

B.	BACKGROUND FACTS.

4.	On 18th September 2023, the Plaintiff-Respondents (“the Respondents”)  hereof, while filing their Originating Summons seeking the reliefs prayed for therein, also filed an Ex-parte Notice of Motion, both supported by an Affidavit sworn on 18th September 2023 by the 1st named first Plaintiff, namely, ZHIHUA HUANG, seeking the following Orders; 

1.	AN ORDER the leave be granted to the 1st Plaintiff to bring this proceeding for and on behalf of the 2nd Plaintiff.

2.	AN ORDER that the Special and Emergency Meeting of Tian En Group (Fiji) Pte Ltd held on 15th and 16th August 2023 and the Resolutions made therein are confirmed and made an order of the Court.

ALTERNATIVEY, AN ORDER:
i)	That ZHENMING WU and CAO JIECHAO be removed as Directors of the Second Plaintiff Company forthwith.

ii)	That ZHENMING WU and CAO JIECHAO hand over all assets belonging to the Second Plaintiff Company forthwith.

iii)	That YUNCHUAN HE and AHIHUA HUANG are hereby appointed as the new signatories of all Company Bank Accounts.

3.	A DECLARATION that the shares of ZHENMING WU and CAO JIECHAO have not been paid for.

4.	AN ORDER that the shares of ZHENMING WU and CAO JIECHAO at Tian En Group (Fiji) Pte Ltd is hereby forfeited.

5.	AN ORDER that Hong Kong Door and Window Company Pte Limited, the 3rd Defendant and/or its members and/its agents, the 1st and 2nd Defendants to return the sum of $1,604,617.00 to Tian En Group (Fiji) Pte Ltd forthwith together with compounding interest from 1/1/20 till date of payment at the rate of 15%.

ALTERNATIVELY for an order that the sum of $1,604,617.00 be deposited by the 3rd Defendant and/or its members and/its agents, the 1st and 2nd Defendants, Hong Kong Door and Window company Pte Limited, into the Courts trust account.

6.	AN ORDER that an independent accountant be appointed to conduct a forensic accounting of Tian En Group (Fiji) Pte Ltd from 2019 till date.

7.	AN ORDER that ZHENMING WU and CAO JIECHAO supply all information to the independent accountant upon his/her/its request in order to carry out the forensic accounting of the Company accounts.

8.	AN ORDER restraining the 1st and 2nd Defendants either by themselves, their servants, agents or attorney’s from selling or disposing or dealing in whatsoever manner with the 3rd Defendant Company until further Orders of this Court.

9.	Any other orders that this Honourable Court deems just and fit.

5.	The Plaintiffs claim their substantive and interim reliefs pursuant to Sections 176, 180, 177(1), 178(a) , 183,184, 190,112, 103, 104 , 105, 106,  107 ,  and 109  of the Companies Act 2015 and Order 32 Rule 1, Order 7, Order 25 Rule 7 Order 8 , Order 29 Rule 1,2,(3) (4)  and of the Rules of the High Court  and pursuant to the inherent jurisdiction of this Court. 

6.	The ex-parte Notice of Motion being supported before me on 19th September 2023, after hearing the learned Counsel for the Plaintiffs, this Court granted, inter alia, the Orders in paragraph 01,  and a temporary restraining Order as prayed for in paragraph 8 above.

7.	Subsequent to the Inter-Parte hearing of the said EX-Parte Notice of Motion on 10th May 2024, this Court on 12th of September 2024 made the following interlocutory Orders 

a.	The temporary Ex-parte restraining order made by this Court on 19th September 2023 against the first and Second Defendants in terms of paragraph 8 of the Ex-parte Notice of Motion shall remain in force till the final determination of this matter.

b.	This Court also makes an Order against the Third Defendant and/or its members and its agents, the First and the Second Defendants as alternatively prayed for under paragraph 5 of the Ex-parte Notice of Motion, requiring them to deposit a sum of One Million Six Hundred Four Thousand and Six Hundred Seventeen Fijian Dollars ($ 1,604,617.00)   into the Courts trust account within 14 days from today.

c.	Orders prayed for in terms of paragraphs 2, the alternative Orders (i) & (ii) and the Orders Nos- 3, 4, 5 of the Ex-parte Notice of Motion will be considered at the end of the substantial hearing.

d.	The alternative Order No-(iii)   under paragraph 2 of the prayer to the Ex-parte Notice of Motion is partially granted on temporary basis, allowing YUNCHUAN HE and ZHIHUA HUANG to be the joint signatories of the Second Plaintiff’s Bank Account, along with the First or the Second Defendant. 

e.	The Plaintiffs are at liberty to have the action filed by way of Originating summons converted as writ action, if they decide to do so. 

f.	The Application for Security for costs preferred by the First, Second and Third Defendants is hereby dismissed.

g.	The First, Second and Third Defendants shall pay the Plaintiffs a total sum of Three Thousand Fijian Dollars ($3,000.00) within 14 days from today, being the summarily assessed costs in respect of the Ex-parte Notice of Motion and the Summons for security for costs.

h.	The matter shall be mentioned on 30th September 2024 to see the compliance of the Orders made and for giving directions.

C.	CONSIDERATION:

8.	It is against the above Orders (a), (b), (e), (f), (g) in the Ruling pronounced by me on 12th September 2024, the Leave to Appeal and the Stay are sought. Initially, the Applicants on 19th September 2024 filed before this Court a, purported, “NOTICE OF INTENTION TO APPEAL”, without filing any Grounds of Appeal. This move appears to remain with no further action being taken by the Applicants.

9.	Subsequently, the Applicants on 30th September 2024, filed a Summons seeking orders, inter alia, for Leave to Appeal and Stay, supported by an Affidavit sworn by both the 1st and 2nd Applicants on 27th September 2024. 

10.	When the Said Summons came up for hearing on 08th October, 2024, as the Counsel for the Respondents objected to the same on the ground that there were no Grounds of Appeal filed, Counsel for the Applicants withdrew the said Summons with liberty to file a fresh Summons, however subject to the pre-payment of $1000.00 as Costs to the Respondents.

11.	Accordingly, the Applicants, having paid the Costs so  ordered, on 16th October 2024 filed the current Summons seeking , inter alia, Leave to Appeal and the Stay of the Orders (a), (b), (e ) , (f) and (g)  given in my Ruling dated 12th September 2024.

12.	When this Summons came up for hearing before me on 28th November 2024, Counsel for the Respondent objected to the same on the grounds that the Summons is out of time, it is filed without adducing any grounds of Appeal, the Applicants have already gone before the Court of Appeal, and the intended Appeal is with no prospect of success.

13.	I observe, that the Summons in hand has been filed after an unexplained delay of one month and four days from the date of the impugned Ruling. No Affidavit in support has been filed, with necessary Grounds of Appeal, the reasons for the delay and other facts and circumstances that led the Applicants to make this Application for the Leave to Appeal and Stay. 

14.	Even, if it is assumed that the Applicants are relying on their Affidavit filed on 30th September, 2024 along with the ill-fated summons, which was subsequently withdrawn, it is observed that the said Affidavit   deals only with the stay Application and not with the Application for leave to Appeal with reason for the delay.  There was no Ground/s of Appeal filed along with that Affidavit either.  

15.	Considering an Application only for the Stay of the impugned Orders, will not serve any purpose, in the absence of Grounds of Appeal, the Reason for the delay and any prospect of success, to call upon this Court to consider the Application for leave to Appeal.  Thus, the purported Application for Leave to Appeal and Stay has to be dismissed with no further consideration. 

16.	However, without prejudice to above, I shall consider the Application in the light of the decided authorities.  In the decisions cited below the law on leave to appeal interlocutory orders have been discussed at length.

A.	In Kelton Investment Ltd & Tapoo Ltd v Civil Aviation Authority of Fiji and Motibhai & Company Limited Civil Appeal No. ABU 0034 of 1995 the Court of Appeal observed as follows;

The Courts have thrown their weight against appeals from interlocutory orders or decisions for very good reasons and hence leave to appeal are not readily given. Having read the affidavits filed and considered the submissions made I am not persuaded that this application should be treated as an exception. In my view the intended appeal would have minimal or no prospect of success if leave were granted. I am also of the view that the Applicants will not suffer an irreparable harm if stay is not granted.

B.	In the case of Ex parte Bucknell [1936] HCA 67; (56 CLR 221 at page 224) it was held:

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 section 35(1)(a) should not be granted as of course without consideration of the nature and circumstances of the particular case. It would be unwise to attempt an exhaustive statement of the considerations 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.

C.	In Dunstan v Simmie & Co Pty Ltd 1978 VR 649 at 670 it was held:

“.... although the discretion to grant leave cannot be fettered, leave is only likely to be given in a case where the determination of the primary issue puts an end to the action or at least to a clearly defined issue or where, to use the language of the Full Court in Darrel Lea (Vic.) Pty Ltd v Union Assurance Society of Australia Ltd., [1969] VicRp 50; (1969) V.R. 401, substantial injustice would result from allowing the order, which it is sought to impugn, to stand.”

D.	In Niemann v. Electronic Industries Ltd. [1978] VicRp 44; [1978] V.R. 431 at page 441 where Supreme Court of Victoria (Full Court) held as follows:

".....leave should only be granted to appeal from an interlocutory judgment or order, in cases where substantial injustice is done by the judgment or order itself. If the order was correct then it follows that substantial injustice could not follow. If the order is seen to be clearly wrong, this is not alone sufficient. It must be shown, in addition, to affect a substantial injustice by its operation.

It appears to me that greater emphasis is therefore must be on the issue of substantial injustice directly consequent on the order. Accordingly if the effect of the order is to change substantive rights, or finally to put an end to the action, so as to effect a substantial injustice if the order was wrong, it may be more easily seen that leave to appeal should be given.

E.	In the case of Khan v Suva City Council [2011] FJHC 272; HBC406.2008 (13th May 2011) the following observations were made in regard to applications for leave to appeal;

It is trite law that leave will not generally be granted from an interlocutory order unless the Court sees that substantial injustice will be done to the applicant.

Further in an application for leave to appeal, it is incumbent on the applicant to   show that the intended appeal will have some realistic prospect of succeeding.

17.	 It appears from these decisions, an appeal from interlocutory orders are discouraged by the court. In the instant matter no injustice whatsoever could be caused to the Applicants since the substantive matter is yet to be heard. 

18.	What this Court, by its impugned interlocutory Ruling dated 12th September 2024, has mainly ordered the Applicants is to deposit a sum of $1,604,617.00 into the Credit of the case at the Registry, in order to safeguard the funds of the Respondent from being dissipated by the Applicants before the substantial hearing and final judgment is given on the Originating Summons. 

19.	 I find that no prejudice would be caused to the Applicants by depositing the said sum in the Court. On the other hand, in the absence of such an Order, there is a likelihood for the Plaintiff- Respondents’  capital invested in the 2nd Plaintiff-Respondent Company  being dissipated by the Applicants , as they have , admittedly,  invested the said sum of Money in the 3rd Defendant – Applicant Company solely owned by the 1st and 2nd Defendant Applicants.

20.	 For the above reasons, the court makes the following orders.

D.	ORDERS

a.	The Application, for leave to Appeal and the Stay of the Orders in the Ruling dated 12th September 2024, is refused.

b.	The Applicants are ordered to pay the Respondents $1000.00 within 30 days from the date of this ruling.

c.	The Originating summons remains fixed for hearing on 30th May 2025. 

At the Civil High Court of Lautoka on this 22nd day of January 2025.

A.M. Mohamed Mackie
Judge

SOLICITORS:
For the Plaintiffs:	Messrs’ Natasha Khan Associates- Barristers & Solicitors
For the Defendants:	Messrs. S Nand Lawyers-, Barristers & Solicitors