Offshore Oil N.L. v Investment Corporation of Fiji Ltd [1984] FijiLawRp 8; [1984] 30 FLR 90 (25 July 1984)

[1984] 30 FLR 90

COURT OF APPEAL OF FIJI

Civil Jurisdiction

OFFSHORE OIL N.L.

v

INVESTMENT CORPORATION OF FIJI LIMITED

Speight, V.P., O'Regan, J.A., Barker, J.A.

25 July, 1984

(Company Law−Winding up−Injunction to restrain issue of winding up petition−whether debt the subject of s.221 notice is presently due and owing−interpretation of documents−discretion of Judge to restrain hearing of petition.)

P.G. Hely Q.C., P.M. Jacobsen (of the New South Wales bar) and R. Patel for the Appellant.

P. Young Q.C., W.G. Hodgekiss (of the New South Wales bar) and M.D. Benefield for the Respondent.

Appeal against a decision of the Supreme Court of 6 April, 1984 whereby an injunction was granted to the respondent (ICF) to restrain the issue of winding up petition by appellant (Offshore) based upon a demand notice requiring payment of $871,427.

The facts were uncontested.

On 25 November, 1980 and 14 January, 1981 the Reserve Bank of Australia gave Offshore authority to remit out of Australia $F437,500 and $F317,500 as unsecured loans to ICF.

On 31 May, 1982 Offshore allegedly wrote to ICF as follows:

"31st May 1982

The Secretary

Investment Corporation of

Fiji Limited

82 Elizabeth Street

Sydney NSW 2000

Dear Sir

This is to confirm that the shareholder's loans advanced to your company from time to time are repayable on notice of not less than two years, at a variable interest rate related to the Fiji bank overdraft rate.

Interest will be allowed to accrue for the first three years and thereafter will be payable half-yearly in arrears or as may be otherwise agreed.

Yours sincerely

Offshore Oil N.L."

Counsel for Offshore noted that, if it ever became material to do so. Offshore would contest that the letter was ever written. The report as did the arguments by Counsel proceeds on the basis that it was written. In their Reasons the court summarised other evidence in the case thus: