Home | Databases | WorldLII | Search | Feedback High Court of Fiji

In re Lomac Construction Company Ltd; In re Ca'bella Pacific Construction Ltd [2008] FJHC 254; Winding Up Action 46.2008 & 47.2008 (15 October 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Winding Up Action No: 46 of 2008
Winding Up Action No: 47 of 2008

IN THE MATTER of
LOMAC CONSTRUCTION COMPANY LIMITED
(formerly known as "Lomac Construction and Project Services Limited")
(Action No. HBC 46 of 2008)

IN THE MATTER of
CA’BELLA PACIFIC CONSTRUCTION LIMITED
(Action No. HBC 46 of 2008)

AND

IN THE MATTER of
the Companies Act, 1983 [Cap 247]

Mr D. Sharma for the Petitioner (Respondent to the Summons)
Mr W. Clarke with Ms T. Ranija for the Respondents (Applicants in the Summons)

Date of Hearing: 13 October 2008
Date of Ruling: 15 October 2008

RULING

[1] This is an Amended Inter-Parte application by way of Inter-Parte Summons whereby the Respondent is seeking an Order that a Winding Up Petition in both matters be struck out.

[2] It was agreed between the Parties that the Inter-Parte Summons in both matters be dealt with together. The documentation before the Court in both matter is as follows:

(a) Winding Up Partition Filed on 16 May 2008;
(b) Affidavit Verifying Petition by DEBORAH YOUNG sworn on 19 May 2008 and filed 20 May 2008;
(c) Inter-Parte Summons for Interim Injunction filed 18 July 2008;
(d) Affidavit in Opposition to Petition by ROBIN MAGINNITY sworn 17 July 2008 and filed 18 July 2008;
(e) Affidavit in Opposition to Petition by SELAI VONOTABUA sworn 17 July 2008 and filed 18 July 2008;
(f) Amended Inter-Parte Summons for Interim Injunction filed 22 July 2008;
(g) Orders made 23 July 2008;
(h) Affidavit in Reply to Affidavit in Opposition by DEBORAH RAIHMAN sworn and filed 13 August 2008;
(i) Affidavit in Response by ROBIN MAGINNITY sworn and filed on 3 September 2008
(j) Affidavit in Opposition to Petition by SELAI VONOTABUA sworn and filed on 3 September 2008;
(k) Submissions filed on behalf of the Respondents dated 8 September 2008;
(l) Submissions filed on behalf of the Petitioner dated 10 September 2008;
(m) Submission of the Respondents in Reply filed on 9 October 2008;

[3] After having read the above material, the Court then invited Counsel for the respective parties to address it. Counsel for the Petitioner submitted that this is a dispute concerning a statutory liability which the Respondents owed to the Fiji Islands Revenue and Customs Authority (FIRCA) and which the Petitioner paid in relation to each company. In effect, the crux of their submission is that there is no bona fide dispute only a obligation to pay tax which they did even though it should have been done by the Respondents (or to have sought an exemption and refund payable to the Petitioner). They have subsequently been unable to get the Respondent Companies to either seek the refund to reimburse them.

[4] Counsel for the Respondents argued that this is part of a much larger contractual dispute between the Parties which has been ongoing since 2005 under High Court Civil Action No. 415 of 2008 before Justice Singh and involves an amount in excess of FJ$9 million.

[5] It is quite apparent to this Court having read the documentation filed as well as having heard briefly from Counsel for the parties that this is not a simple matter of an unpaid debt for which a Winding Up Petition might be the appropriate procedure. Rather, the issues raised will require full ventilation at a final hearing as part of a much larger contractual dispute.

[6] In view of the above, the Court has reached the following conclusion:

(a) That both matters are part and parcel of a much larger dispute and should be dealt with in that forum;

(b) That the correct procedure would be for the Petitioner to raise both claims as part of its Defence and/or Counter-Claim in the current dispute before the High Court in Civil Action No: 415 of 2005.

[7] The Court makes the following Orders:

(a) That the Winding Up Petition in Actions No HBE 46 and 47 of 2008 respectively, be struck out;

(b) That the claims which were the basis of Actions No HBE 46 and 47 of 2008 respectively, to be included as part of any Defence and/or Counter-Claim to be filed by the Petitioner in Civil Action No 415 or 2005;

(c) The costs of both of these matters, that is, Actions No HBE 46 and 47 of 2008 to be costs in the cause in Civil Action No 415 or 2005.

Thomas V Hickie
Judge

Solicitors:
R. Patel & Co, Barristers & Solicitors for the Petitioner
Howards Lawyers, for the Respondents