Hiralal Laundary No. 1 Ltd v Mobil Oil Australia Pty Ltd [2001] FJLawRp 27; [2001] 1 FLR 141 (23 March 2001)

HIRALAL LAUNDARY NO. 1 LTD. v MOBIL OIL AUSTRALIA PTY. LTD.

High Court Civil Jurisdiction

1 December, 2000, 23 March, 2001

HBC 0249/00L

Dissolution of injunction – restraining Defendant from advertising winding up proceedings – whether letter acknowledging debt a material non disclosure – whether invoices comply with Companies Act s372(c) and Sale of Goods Act s6 - Companies Act s372(c); High Court Rules O.41 r.5; Sale of Goods Act s6

The Defendant sought dissolution of an injunction restraining it from proceeding to advertise winding up action on the grounds of the Plaintiff's material non-disclosure of a letter written 2 days after winding up petition acknowledging the debt. The Plaintiff says this letter was written at the suggestion of the Defendant's employee and before he took legal advice. The Court discussed the requirement for proper indorsement of affidavits and their contents, the proof required to satisfy s372(c) of the Companies Act, and the requirements of section 6 of the Sale of Goods Act. The Court found there were triable issues and refused to dissolve the injunction.

Held – (1) While material non-discloure is a ground on its own for dissolution of an injunction, a failure to disclose a letter acknowledging the debt was not a material non-disclosure in the context of the dealings between the parties.

(2) The Defendant's invoices, and Notice under s221 failed to comply with the Companies Act s372(c) requiring the Defendant to state the name of the company and the country in which it is incorporated. Its invoices do not disclose whether they fully comply with particulars required under Sale of Goods Act s6.

Application to dissolve injunction restraining Defendant from proceeding with winding up petition refused.

Cases referred to in Ruling

Chandrika Prasad v Republic of Fiji & Attorney-General (No. 6) (2001) HBC0217/200L Joinder 17 January 2001
Chandrika Prasad v Republic of Fiji & Attorney-General (No. 5) (2000) HBC0217/200L 20 December 2000
Dalglish v Jarvie [1850] EngR 688; (1850) 2 Mac & G 231
Hirdesh Chand Dass v Shell Fiji Ltd (2000) HBC 591/99S 13 January 2000
In re Kim Industries Ltd. (No. 1) ) 1 FLR 141
Maple Distributors v Kantilal & Sons Ltd ABU33/85

Vipul Mishra for the Plaintiff
Haroon Lateef for the Defendant

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23 March, 2001

RULING

Prakash, J

This is a summons by the Defendant seeking an order that the ex parte injunction granted to the Plaintiff on 1st August 2000 be dissolved. The Plaintiff had filed a Writ of Summons on the 1st August 2000. On the same day it had filed an ex parte Notice of Motion for an injunction. After hearing counsel for the Plaintiff and considering the affidavit filed in support the Court granted an injunction until further orders.

The Statement of Claim filed by the Plaintiff had claimed damages and "An injunction restraining the Defendant and/or its servants and or agents from in any way advertising Winding Up proceedings against the Plaintiff." The Motion was in similar terms. A Defense was filed on 1st December 2000.

Objections were taken by the Plaintiff to the affidavit filed by the Defendant in support of its summons. It is not properly indorsed. It is only from the 3rd paragraph that one gathers that Jayesh V. Khatri is swearing the affidavit on behalf of the Defendant company. The attachments of invoices of Mobil copy does not provide full particulars of the Mobil company one is dealing with. This is important in terms of the objections taken by the Plaintiff as regards the requirements of foreign companies under the Companies Act. These are clearly unsatisfactory. Time and again the Courts have emphasised the need to comply with the rules. The issue of proper indorsement on affidavits and their contents have been dealt succinctly by my brother Gates J in In the Matter of Kim Industries and In the Matter of Companies Act 1983 (Ltk. High Court, Winding Up No. HBF0036/99L). In his recent landmark Constitutional cases Gates J further dealt with defective affidavits and the need to follow the rules (see Chandrika Prasad v The Republic of Fiji and Attorney-General (Action No. HBC00217/2000L (on the issue of Joinder, delivered 17/01/01) and the Respondents' Summons of Stay pending Appeal (No 2) delivered on 20/12/2000). The Court was minded to strike out the affidavit. However, due to the delays in the consideration of the Summons and in the interests of justice the Court grants the necessary leave (under Order 41, r.5) to consider the affidavit.

The major argument of the Defendant in seeking to dissolve the injunction is material non-disclosure. A material non-disclosure is a ground on its own for the dissolution of an injunction. This is so no matter how innocent or inadvertent non-disclosure might be (Dalglish v Jarvie [1850] EngR 688; (1850) 2 Mac & G 231; Hirdesh Chand Dass v Shell Fiji Ltd Suva High Court CA HBC 591/1999). The crux of the Defendant's argument is that the Plaintiff had not disclosed to the Court his letter of 7/07/00 to the Defendant acknowledging his indebtedness. This letter is attached as Annexure "A" of Jayesh V Khatri's affidavit. It is not clear what was the status of the letter in the dealings between the parties. This letter was dated 7 July 2000. The Notice under Section 221 (Annex. A of Plaintiff's affidavit) was dated 5 July 2000. Was there an agreement to withdraw the s.221 notice and a rescheduling of debt? Kamal Singh to whom the letter was directed has not explained the context in which the Plaintiff wrote this letter. In any case the Plaintiff in paragraph 5 of his affidavit states: "Unfortunately before I had the benefit of legal advice I panicked and at the suggestion of the Defendant I sent a letter suggested by one of the Defendant's employee asking for time due to financial difficulty. They had also written to me." In the Court's view in the context of the dealing between the parties and the materials disclosed in the affidavit this letter was not a material non-disclosure.

The Plaintiff in its written and oral submissions has raised the foreign status of the company. As such it has to comply with section 372(c) of the Companies Act. This is not evident from the copies of the invoices attached to the affidavits of the parties. The invoices are in the name of Mobil Oil Fiji. So is the Notice under Section 221. However the Acknowledgment of Debt and Proposal to Pay attached to the affidavit of the Plaintiff is on behalf of "Mobil Oil Australia Pty. Ltd ACN004 052 984 the registered office which is situated at 417 Kilda Road Melbourne ...'' The writ has been filed against Mobil Oil Australia Pty Ltd. The Defence is also filed on behalf of Mobil Oil Australia Pty. Ltd. In response to paragraph 7 of the Plaintiff's affidavit, Mr. Khatri merely states: "That Mobil Oil Fiji is a branch of Mobil Oil Australia Ltd. This is duly registered at the Companies Registry." No copy of any registration is produced. Even if this assertion was correct no arguments were tendered to suggest that such a registration would satisfy the requirements of Section 372(c) of the Companies Act.

The Plaintiff has also raised the issue of the Sale of Goods Act as it relates to credit sales. The invoices attached to the affidavits do not disclose fully whether these comply with Section 6 of the Act. These requirements are important in view of the assertions made in paragraph 6 and 11 of the Plaintiff's affidavit of 1/08/00. In Maple Distributors v Kantilal & Sons Ltd FCA CA 33/85 the Fiji Court of Appeal considered Section 6 of Sale of Goods Act and ruled that compliance with its provision were critical to a consideration of such sales. As it stated: "What is required is satisfactory proof that at the time of acceptance of the goods the purchaser received a document which in all respects specified the particulars in Section 6" (p9). In this case these are not obvious.

It is clear from the matters traversed that there are triable issues in this case. For the reasons given above the summons to dissolve the injunction is dismissed. Each party is to bear its own costs.
Application refused.

Marie Chan