Harimaya & Sons (PTE) Ltd v Gawaga Ltd [2011] FJMC 181; Civil Case 58.08 (14 December 2011)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Civil Case No 58/08

BETWEEN

HARIMAYA & SONS (PTE) LTD
PLAINTIFF

AND

GAWAGA LIMITED
DEFENDANT

RULING

1. The Plaintiff in this case filed the statement of claim on the 14th July 2008. The Defendant filed the notice of intention to defend on the 17th of July 2008 and later on the 24th July the Defendant filed a notice of motion seeking an order for security for costs.
   
2. On the 26th May 2010 this Court made a ruling, that security for costs be deposited by the Plaintiff in the sum of $ 3000 within 14 days. Since the case has been delayed for so long the Court further ordered that the case will be struck out if the security for costs is not deposited within 14 days.
   
3. It should be noted that this case was dragging on since July 2008 and I have set out the sequence of events which delayed the proceedings in the ruling on security for costs. However I will again set out the sequence of events as it is pertinent for the determination of the issue before this Court.
   
4. On the 24th July 2008 the defendant filed a notice of motion seeking the plaintiff to be ordered to give a security for the defendant's cost since the plaintiff company is located out side the jurisdiction of Fiji.
   
5. The case was called on the 30th July 2008 to hear the notice of motion and the defendant sought an adjournment to file an affidavit in support of the motion saying that the defendant overlooked that.
   
6. On the 4th of September the defendant filed an amended notice of motion along with an affidavit seeking orders for the plaintiff to give security for the defendant's cost, to stay the proceedings until the security is given, and for costs of the application.
   
7. On the 01st October 2008 the matter was fixed for hearing of the amended notice of motion for the 5th of November 2008. On the 05th November 2008 the Plaintiff sought an adjournment on the basis that the counsel for the plaintiff was out of the country. Thus the matter was adjourned to 09.12.08 for hearing of the notice of motion and the plaintiff was asked to file any necessary affidavits within 14 days and 7 days were given to the defendant to reply.
   
8. On the 9th December 2008 the plaintiff was granted another date with the consent of the defendant to file the affidavit. On the 12th December 2008 the plaintiff filed an affidavit in response.
   
9. On the 29th January 2009 the case was adjourned to 18.02.09 for hearing.
   
10. On the 18th February 2009 when it was set for hearing the case was just adjourned to 01.04.09 and the defendant did not object to the adjournment although it appears that the plaintiff did not appear.
    
11. On the 01st April 2009 both parties did not appear and the case was adjourned to 03.06.09.
    
12. On the 3rd June 2009 the case was adjourned for mention only to 19.08.09 and the defendant did not object to the adjournment.
    
13. On the 19th August 2009 again the case was adjourned to 09.09.09 for mention and no party objected to the adjournment.
    
14. On the 09th September 2009 the case wasadjourned to 30.09.09 for settlement on security for costs.
    
15. On the 30th September 2009 finally the Plaintiff sought a hearing date on the issue of security for costs.
    
16. On the 23rd December 2009 the matter was fixed for hearing for 12.05.10 and the matter was taken up for hearing. Both the counsel were heard on the issue on security for costs.
    
17. On the 26th May 2010 the ruling was delivered on security for costs. The case was then adjourned to 30th June 2010 for the Defendant to file the statement of Defence if security for cost is paid within 14 days from 26th May 2010.
    
18. When the case was called on the 30th June 2010 neither the Plaintiff nor the Plaintiff's Counsel appeared in Court. The Defendants Counsel informed Court that no security for costs is deposited as ordered and requested that the matter be struck out subjected to $ 3500 cost. Accordingly the case was struck out with $ 1500 cost.
    
19. On the 13th July 2010 a notice of motion is filed by the Plaintiff seeking an order to reinstate the matter with a supporting affidavit from a lawyer saying that she could not appear in this case as she was held up in another Court.
    
20. The notice of motion was set for the 21st July 2010 to be heard with notice to the Plaintiff. However on the 21st July the Counsel appeared for the Plaintiff sought permission to withdraw the notice of motion. Accordingly the notice of motion to reinstate the matter was struck out.
    
21. Again on the 02nd August 2010 an inter parte notice of motion was filed by the Plaintiff seeking orders to reinstate the case. The Parties were then ordered to file written submissions and this is the ruling in respect of the said notice of motion.
    
22. It is clearly evident from the above sequence of events that the Plaintiff has not acted diligently to see a finality to this case. In any event I will now consider whether the application for reinstatement can be granted.
    
23. As I have mentioned before, the Plaintiff was ordered to deposit $ 3000 security for costs within 14 days. However they failed to do so within the stipulated period. It was later transpired that the registry has accepted the money either by mistake or by ignorance of the order made on the 26th May 2010. However the Senior Court Officer has written a memo apologizing for this fault on the part of the registry and it is filed of record.
    
24. In any event it is very clear, that if the Plaintiff was in a difficulty to deposit the security of costs within 14 days, an application could have been made by the Plaintiff to ask for extension of time. The Plaintiff is a company and it is represented by a law firm. There are accepted practices followed by Courts of this country. I am of the opinion that as responsible Solicitors, the Plaintiff's Solicitors should not have got the clerks at the registry to accept the money disregarding the order of this Court. Even if the Court clerk who accepted the money was ignorant, it is the duty of the Solicitors to act in an honest, responsible and transparent manner.
    
25. Be that as it may, I have considered the reasons set out in the supporting affidavit filed along with the notice of motion to reinstate the matter. It says that the Plaintiff's Solicitors informed the Plaintiff Company about the order for security costs on the 27th May 2010 by an e mail. The e mail is attached and I am satisfied that the requirement to deposit security for costs has been informed to the Plaintiff forthwith. But it further states that it took time for the Plaintiff to send the money and for the cheque to be cleared at the bank. But no proof has been forwarded to support those claims.
    
26. It should be noted that in the present days money can be transferred between countries even within a day. Besides, neither the affidavit nor the written submissions reveal about the actual date the Solicitors received the money. Further there is no reasonable explanation as to why the security for costs could not be deposited within the given time. There is no evidence submitted to prove that the delay was beyond the control of the Plaintiff or of the Plaintiff's Counsel.
    
27. I have considered the written submissions filed by the Plaintiff regarding the notice of motion seeking to reinstate the matter. The Plaintiff has made lengthy submissions on the issue of security for costs instead of addressing the real issue in question, namely the reasons for non appearance on the 30th June 2010 and the reasons for non compliance with the order for security for costs.
    
28. If the Plaintiff wishes to challenge the legality of the order made by this Court with regard to security for costs the Plaintiff should have appealed against the said order instead of canvassing the validity of that order at this stage.
    
29. The Plaintiff failed to satisfy this Court that the non appearance on the 30th June 2010 and non-compliance with the order for security for costs was unintended or unavoidable. I would reproduce the paragraph 31 of the ruling on security for costs to reiterate as to why this Court imposed a time limit to deposit the security for costs.
    

"Para 31. I order the plaintiff to give security for costs in the sum of 3000 dollars. The amount to be deposited in court within 14 days. Since the matter is delayed unnecessarily I inform the plaintiff that the matter may be struck out if this amount is not deposited within the prescribed period."

30. I do not see any reason as to why this Court should reinstate this action for the foregoing reasons. Accordingly I strike out the inter parte notice of motion dated 22nd July 2010 and filed on 02nd August 2010. Further I order 250 dollars cost.
    

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

14.12.2011