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In re Sisters Aircool & Refrigeration Ltd [2011] FJHC 525; HBE50.2011 (19 September 2011)

IN THE HIGH COURT OF FIJI
AT SUVA

Winding Up Cause No. HBE 50 of 2011

IN THE MATTER of SISTERS AIRCOOL & REFRIGERATION LIMITED a duly registered liability company having its registered office at 31-33 Brewster Street, Toorak, Suva.

AND

IN THE MATTER of the Companies Act

BEFORE: MASTER DEEPTHI AMARATUNGA
COUNSELS: Mr O'Driscoll for the Plaintiff
Mr S. Leweniqila for the Defendant

Date of Hearing: 19th September, 2011
Date of Ruling: 19th September, 2011

RULING

1. INTRODUCTION
   

1. This is an application for winding up of a company. The Company did not file an affidavit in opposition and takes up an objection that, since they were not served with the affidavit verifying the petition there was no proper service in terms of the Companies Winding up Rule 28.
   

2. LAW AND ANALYSIS
   

2. The Companies (Winding Up) Rules are contained in Cap 247 (S -16) of Revised Subsidiary Legislation. The said rules were enacted in terms of Section 345 of the Companies Act.
   

The Companies (Winding Up) Rule 28 states as follows:

"28(1) After a petition has been presented, the petitioner or his barrister and solicitor shall, on a day to be appointed by the registrar, attend before him to satisfy him that the practitioner has been duly advertised, that the prescribed affidavit verifying the contents thereof and the affidavit of service if any, have been duly filed and the provisions of the Rules have been duly complied with by the petitioner.

(2)No order shall be made on the petition of any petitioner who has not, before the hearing of the petition, attended before the registrar, at the time appointed, and satisfied him in manner required by this rule."

3. The above rule clearly does not indicate that the affidavit verifying petition should be served to the debtor company. The above section only reiterates the requirements in the preceding Rules and does not impose any extra burden on the Petitioner to serve the affidavit verifying petition.

4. The relevant Rules regarding the Petition and affidavit verifying petition are contained in Rules 24 and 25 of Companies (Winding Up) Rules and they are quoted below:

24(1) Every petition shall, unless presented by the company, be served upon the company at its registered office, if any and if there is no registered office, as the principal or last known principal place of business thereof, by leaving a copy of the petition with any member, officer or servant of the company, or, if no such member, officer or servant can be found, by leaving a copy at such registered office or principal place of business or by serving it on such member, officer or servant of the company as the court may direct; and there the company is being wound up voluntarily, the petition shall also be served upon the liquidator, if any appointed for the purpose of winding up the affairs of the company.

(2) An affidavit of service of such petition shall be sworn and filed by the officer executing service thereof.

25. Every petition shall be verified by an affidavit, which shall be sworn by the petitioner, or by 1 of the petitioners if more than 1, or where the petition is presented by a corporation, by a director, secretary or other principal officer thereof, and shall be sworn and filed within 4 days after the petition is presented and such affidavit shall be prima facie evidence of the contents of the petition.

5. It is pertinent to note that Rule 24 of the Companies Winding up Rules specifically states that the Petition has to be served and also lays down the procedure of service, but the Rule 25 which deals with the affidavit verifying petition does not explicitly state that it has to be served.

6. It is clear that Rules of the Winding Up specifically required only the petition to be served and the service of affidavit verifying petition is not mandatory and it is an optional step and the Petitioner is not obliged to serve it to the debtor company, but it is mandatory to file the affidavit verifying petition within 4 days of the filing of the petition.

7. It is to be noted that every document needed to be filed in court are not required to be served, for an example in terms of Rule 30 the petitioner was required to prepare a list of the names and addresses of the persons who have given notice of their intention to appear on the hearing of the petition and their respective barrister and solicitor as prescribed in form No 14, but this need not be served to the debtor company.

8. The above legal position is further reinforced in Rule 31 of the Companies Winding Up Rules which states as follows:

"31(1) Affidavit in opposition to the petition shall be filed within 7 days of the date on which the affidavit verifying the petition is filed, and notice of the filing of every such affidavit shall be given to the petitioner or his barrister and solicitor on the day on which such affidavit is filed.

9. The above rule clearly states that the affidavit in opposition should be filled within seven days of the filing of the affidavit verifying the petition, as opposed to date of service, clearly indicating that there is no date of service of the affidavit verifying opposition.

10. The said rule 31 is explicit as to the service of the affidavit in opposition, which clearly states that on the date of the filing of affidavit in opposition the same should be served to the petitioner or its legal representative. The Winding Up Rules are explicit when the service is needed and when it is silent the courts cannot impose unintended requirements which will be hindrance to the Petitioner.

11. So it is clear that there is no requirement of service of affidavit verifying petition in terms of the Companies Winding Up Rules and I was not submitted with any legal text or any case authority to contrary to decide on this issue.

C. CONCLUSION

12. The counsel who appeared on behalf of the Debtor Company has neither filed an affidavit in opposition nor filed an application seeking extension of time for the filing of the affidavit in opposition. On 5th September, 2011 when this matter came before me for hearing the counsel for the debtor company indicated that he intends to file an application for extension of time to file an affidavit in opposition since the petitioner indicated that they would object to any affidavit being filed outside the stipulated time in terms of Companies Winding Up Rule 31. He has not done so, and now he raises an objection that the affidavit verifying petition is not served to them. There is clearly no requirement in terms of the Compnies Winding Up rules for service of the affidavit verifying petition and the objection is overruled.

The final Order:

1. The Objection that the affidavit verifying petition needs to be served is overruled.
   

Dated at Suva this 19th Day of September, 2011.

Mr D. Amaratunga
Acting Master of the High Court
Suva