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Amira Furnishings Ltd v Official Receiver of Fiji [2005] FJHC 283; HBC0323.2004 (25 October 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0323 OF 2004

BETWEEN:

AMIRA FURNISHINGS LIMITED
a limited liability company having its registered office in Nadi.
PLAINTIFF

AND:

THE OFFICIAL RECEIVER OF FIJI
or the liquidator of SALAMMA HIRE TRUCKS AND MACHINERY LIMITED
DEFENDANT

Mr Sahu Khan for the Plaintiff
Mr E. Bule for the Defendant (Administrator-General’s Office)

Date of Hearing: 25 October 2005
Date of Judgment: 25 October 2005

ORAL RULING OF FINNIGAN J

This is my Oral Ruling on the motion filed inter partes on 20 October 2005 by the office of the Official Receiver.

The motion seeks an order that the order made by this Court on 11 January 2005 be set aside.

I shall not set out for the record the terms of that prior order but I have it open in front of me.

I have heard Mr Bule on behalf of the Official Receiver in support of the motion and Mr M S Sahu Khan in reply. Mr Bule had no submissions that he wished to make an answer to the submissions of Mr Sahu Khan.

I wish to express my thanks to Bule for his courteous approach to the Court throughout this matter not only today but also last Friday 21 October. He has done everything in his part to persuade the Court both by argument and by good manners that the Official Receiver has been placed by the January order in an untenable position.

However I am bound to state particularly after hearing the submissions of Mr Sahu Khan that I was originally baffled by the stand taken in this matter by the Official Receiver and after hearing Mr Bule’s submissions and after reading the affidavit evidence I am still baffled. Something is happening here which is beyond my comprehension. The course of action dictated by the facts and the submissions however is entirely clear.

Briefly this matter first came before the Court on 4 November 2004. An appearance was entered for both parties. That alone proves service on the Official Receiver of the motion leading to the order which is now under challenge. Counsel from the Attorney General’s office heard the Court say that the Official Receiver had 21 days in which to file an affidavit. When the Court re-convened on 11 January 2005 no affidavit had been filed and there was no appearance.

The order was made. It is difficult to conceive what else could the Court have done. There is now nine months later an application to set that aside. It seems to be filed by the Official Receiver in person. The affidavit in support on the file is irregular in its attestation. So far as I am able to ascertain from all I have read and heard, the Official Receiver gives no grounds and fact for the setting aside of that order, she gives no reasons in fact or law. She claims no consequences that might flow were the order to be set aside. She gives no evidence of any action she proposes to take that is being hindered by the order. She gives no affidavit or evidence of what she will take if the order is set aside.

She gives to reasons for refusing to take action as ordered by the Court on 11 January 2005. She cites no law, she cites no part of her duties which is hindered or contravened by the order. There is nothing in this application as I say despite the courteous presentation of Mr Bule which is anything other then sheer delaying tactic.

I doubt some of the Official Receiver’s claims of fact as made by her about service. I have clear affidavit evidence to the contrary which appears to me to be more credible evidence but I make no findings against her without giving her the opportunity of being heard, except she is on the verge of contempt.

This application is refused. Motion is dismissed. There will be costs to the Plaintiff summarily assessed on the basis of the Plaintiff’s argument here at $500.00.

An order was made last Friday which was intended to remain unexecuted because of the fact that I had arranged this hearing today but the order made last Friday on the application of the Plaintiff now comes into full effect.

D.D. Finnigan
JUDGE

At Lautoka
25 October 2005