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Gilmour v Kubs [2005] FJHC 458; HBC0655R.1998S (27 September 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0655R OF 1998S

BETWEEN:

DAVID GILMOUR
FIRST PLAINTIFF

FIJI WATERS LLC
SECOND PLAINTIFF

NATURAL WATERS OF VITI LEVU
THIRD PLAINTIFF

AND:

JANUSZ KUBS
DEFENDANT

Counsel for the Plaintiff: R. Naidu )

Ms M. Moody ) Munro Leys

Counsel for the Defendant: A. Herman: Anselm B.V. Herman

CIVIL ACTION NO. HBC0239D OF 2003S

BETWEEN:

MAMA’O KUBS
PLAINTIFF

AND:

DAVID GILMOUR
FIRST DEFENDANT

FIJI WATERS LIMITED
SECOND DEFENDANT

NATURAL WATERS OF VITI LEVU
THIRD DEFENDANT

Counsel for the Plaintiff: A. Herman: Anselm B.V. Herman
Counsel for the Defendants: R. Naidu )
Ms M. Moody ) Munro Leys

Date of Decision: 27.09.2005
Time of Decision: 12.00 P.M.

EX-TEMPORE RULING

The fundamental reason behind the discovery and inspection of documents generally is to assist the Court in reaching and the dispensing of justice. Justice means what is fair to the parties given the circumstances of the case.

The issue central to the Court’s consideration in this interlocutory proceedings, is the proper value of the shares of the Company at the time of the sale of Mr & Mrs Kubs’ shares. According to Counsel the disclosure of all the documents that are particularised in Mr Lyne’s affidavit are necessary for a proper evaluation to be done. How does one therefore ascertain on what is relevant or not. In my view, relevant documents in this case, are those that would have affected or at least have a bearing on the share value at the time of the sale. The decisive date is the date when the shares was disposed of.

To ascertain the proper value of the shares, the Court believes that is its appropriate for Mr and Mrs Kubs as shareholders and directors, or their financial adviser, have access to the documents that have a direct bearing on the issue. The fair market value can only be reasonably assessed with some certainty if there is access to those documents that existed at that time of the sale. Documents including financial reports of the Companies, issued after the sale had long been concluded do not.

I therefore order that all documents that existed, and which have been requested by Mr & Mrs Kubs, at the time of the sale of their shares be made available to them, notwithstanding that other documents that post date the event, have previously been made available to them. To the extent that this amends the previous order of the Court on the same, that order is so varied. Where there are in fact non-existing documents, affidavits are to be sworn to that effect by the parties.

Order is made for discovery of documents that are identified as existing at the date of the sale of the shares. Such discovery process to be complied with within the next 28 days.

As to the Summons for Direction, I will grant the application subject to the agreement as to the dates for holding of the meeting and the continuation of the substantive hearing.

F. Jitoko
JUDGE

At Suva
27 September 2005