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Fiji National Provident Fund v Marine Industrial & Structural Engineering Ltd [2011] FJHC 278; HBE108.2010 (20 May 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Winding Up Action No. HBE 108 of 2010

IN THE MATTER OF MARINE INDUSTRIAL STRUCTURAL ENGINEERING LIMITED

AND

IN THE MATTER of the Companies Act, CAP 247

BETWEEN:

FIJI NATIONAL PROVIDENT FUND a statutory organization duly established under the Fiji National Provident Fund Act Cap 219.
Petitioner/Applicant

AND:

MARINE INDUSTRIAL & STRUCTURAL ENGINEERING LIMITED a limited liability company having its principal place of business at 22-24 Tofua Street, Walu Bay, Suva in the Republic of the Fiji Islands.
Respondent

BEFORE : Master Deepthi Amaratunga

COUNSELS : LEGAL OFFICER/FNPF for the Petitioner
MAMLAKAH LAWYERS for Respondent

Date of Hearing: 4th April, 2011
Date of Ruling: 20th May, 2011

RULING

1. INTRODUCTION
   

1. The Petitioner has filed this action seeking winding up of the Company (Marine Industrial & Structural Engineering Ltd). The Respondent Company had opposed to this application on the basis that the Company is sound and liquid and solvent and can meet its debt obligations and disputed the amount owed by them and also state that the said debt was settled and a sum of $31,650.00 was paid to settle the full amount. The Petitioner admits the aforesaid sum being paid, but state that was only an agreement to settle a part of the debt.
   

2. FACTS AND ANALYSIS
   

2. The Petitioner has alleged a debt of $205,296.48 and in terms of Section 221 of the Companies Act a notice was given to the Respondent Company. The Respondent Company was also provided with details of their accounts with the receipt numbers and the dates of receipts and the total outstanding as at the date of the institution of this action. The said details are annexed to the affidavit in reply filed by the Petitioner on 7th February, 2011 marked as PCD 1.
   
3. The main contention of the Respondent Company is that the said debt was settled and an agreement was reached on the amount of the debt owed by the Respondent Company to the Petitioner on or around 28th April, 2010 at a meeting in FNPF Plaza One at 11 am for a sum of $ 31,650.00.
   
4. In replying to the affidavit in opposition the Petitioner admit the receipt of the said sum of $ 31,650.00 but state that the said sum was only a partial settlement for periods stated in the said affidavit and also stated that the said amount has been deducted and not included in the debt that was the subject matter of this action.
   
5. It is evident that the said sum was only a partial payment and this was a known fact to the Respondent Company and the Petitioner had communicated the said position clearly and on 19th July, 2010 the Petitioner has written a letter indicating the outstanding debt as at that time and it had indicated the details of the debt clearly. This letter is also marked PCD 2 in the affidavit in reply of the Petitioner.
   
6. It is clear that from the affidavit in opposition the letter of the Respondent Company dated 13th May, 2010 had 'agreed to settle the amount of $31,650.22' and that is in no way indicated as a full and final settlement of the total debt owed. It refers to an existing legal action and also sought a withdrawal of that action upon full settlement of the said sum. This is clearly before the institution of this action and cannot be a subject matter of this case. It is also noteworthy that the said arrangement was also breached by the Respondent Company and the final payment was paid only in August as against the agreed final settlement of the said sum of $31,650.22 on 11th June, 2010. That amply demonstrates the conduct of the Respondent Company.
   
7. This payment of $ 31,650.22 was for a part payment and on 31st August, 2010 the Respondent Company has written to the Plaintiff and sought further time to settle the debt regarding Account Nos. 14585 D. It states as follows:
   

"We wish to assure you that we in the turn around period and hopefully turn our way we will be able to speed up our payment since our payment is based on the flow of business operation."

8. So, the Respondent Company had not only admitted the debt owed to the Petitioner long after the payment of $31,650.22 but also sought some further time to 'speed up' their payments 'on the flow of the business operation' and also attached a forecasted cash flow of the company to the said letter to justify their request.
   
9. In the circumstances it is clear that the Respondent Company is indebted to the Petitioner in excess of the amount stipulated in the Companies Act and there is no disputed as to the amount of the Debt and the Petitioner's request to wound up the Respondent Company is granted
   

100. CONCLUSION
     

10. The Petition to Wind Up the Company, namely Marine Industrial & Structural trade Limited is granted.
    
11. The cost of this application is also granted to the Petitioner and assessed summarily at $1,500.00.
    

Dated at Suva this 20th day of May, 2011

Mr. Deepthi Amaratunga
Acting Master of the High Court

Suva