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Supreme Court of Fiji |
IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA
CIVIL APPEAL NO.CBV0002 OF 20086S
(Fiji Court of Appeal Nos.ABU0093 of 2006S and ABU0051 of 2006S)
BETWEEN:
VIMALS CONSTRUCTION & JOINERY WORKS LIMITED
Petitioners
AND:
VINOD PATEL & COMPANY LIMITED
Respondents
Coram : The Hon. Justice Keith Mason, Judge of the Supreme Court
The Hon. Justice Kenneth Handley, Judge of the Supreme Court
The Hon. Justice Ronald Sackville, Judge of the Supreme Court
Hearing : Tuesday, 22nd July 2008, Suva
Counsel : Mr. S. Maharaj for the Petitioners
Ms. N. Khan & Mr. F. Khan for the Respondents
Date of Judgment: Tuesday, 22nd July 2008, Suva
JUDGMENT OF THE COURT
[1] The petitioners seek special leave to appeal to this Court against a judgment of the Court of Appeal dismissing the petitioners’ appeals against a series of judgments given by Connors J. All the judgments were consequential upon an order made by Connors J on 14 January 2005 winding up the first petitioner (‘Vimals’). At the time, no answer had been filed to the petition and counsel who appeared on 14 January 2005 on behalf of Vimals stated that he had no instructions. No explanation has been provided by the petitioners for the apparent default by Vimals, nor for Vimals’ apparent failure to give adequate instructions.
[2] The Court of Appeal said that there was ‘some force’ in the petitioners’ contention that Vimals had been denied natural justice on 14 January 2005, because the winding up petition had been set down for mention only on that date. However, the Court pointed out that the petitioners had taken no steps to challenge the winding up order until 18 May 2006, some 16 months later, when Vimals filed a summons seeking to set aside the order. The petitioners seem to have been stirred into action by the institution of proceedings against the directors of Vimals based on allegations of insolvent trading by the corporation. The Court held that this ‘extraordinary delay’ was fatal to the petitioners’ appeal out of time against the winding up order, bearing in mind that the interests of creditors, other than the respondent, would be affected by a successful appeal.
[3] The Court of Appeal dismissed what it characterised as the petitioners’ out of time application for leave to appeal against certain declaratory orders made by Connors J on 22 March 2006. The declarations were to the effect that the second petitioner and others had been knowing parties to the first petitioner carrying on business for fraudulent purposes and thus were liable to the respondent. The appeal was based on what were said to be procedural irregularities, including the decision of Connors J to hear the matter in chambers, rather than in open court. However, as the Court of Appeal pointed out, no objection was taken by the petitioners’ counsel at the time to the hearing being held in chambers and no application was made to cross-examine deponents whose evidence was relied on in the proceedings. For that reason, the Court of Appeal refused to grant leave to appeal.
[4] The Court of Appeal also dismissed what it characterised as an application for leave to appeal from orders made by Connors J on 22 May 2006 for the sale of certain properties jointly or severally owned by the petitioners or some of them. The Court did so on the ground that the petitioners sought to raise a fresh argument not put to Connors J. In any event, the Court considered the argument to be without substance.
[5] The Court of Appeal rejected a number of other grounds of appeal. These related to a refusal to grant a stay of the orders for sale, the award of costs on an indemnity basis, a refusal to accede to a joinder application and alleged bias or apprehension of bias on the part of Connors J.
[6] There is no issue raised by the petitioners that warrants the grant of special leave to appeal. Nor are we satisfied that a refusal to grant special leave would occasion injustice to the petitioners. The difficulties experienced by the petitioners that were identified by Mr. Maharaj in argument seem to have been due to their failure to give proper instructions to their legal representations or possibly (although we express no view as to this) an inability or failure by the legal representatives to give effect to the instructions.
[7] Special leave is refused with costs.
Hon. Justice Keith Mason
Judge of the Supreme Court
Hon. Justice Kenneth Handley
Judge of the Supreme Court
Hon. Justice Ronald Sackville
Judge of the Supreme Court
Solicitors:
Suresh Maharaj & Associates, Lautoka, for the Petitioners
Yash Law, Lautoka, for the Respondents
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URL: http://www.paclii.org/fj/cases/FJSC/2008/3.html