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In re Amunuca Resort Ltd [2012] FJHC 1429; HBE9.2012 (8 November 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
COMPANIES JURISDICTION

Companies (Winding Up) No. HBE 09 of 2012

IN THE MATTER of
AMUNUCA RESORT MANAGEMENT LIMITED

AND

IN THE MATTER of
THE COMPANIES ACT (CAP 247)

BEFORE : Master Deepthi Amaratunga

COUNSEL : Mr. Krishna R for the Petitioner
Ms. Vulimainadave K for the Respondent Company

Date of Hearing : 8th November, 2012
Date of Judgment : 8th November, 2012

RULING

1. INTRODUCTION
   

1. This is an action for winding up where I have already granted an order for the winding up of the Company on 19th September, 2012. The Company through its lawyers Natasha Khan Associates filed this summons in pursuant to Section 252 of the Companies Act.
   
2. The summons read as follows :
   

'Let all parties concerned attend in chambers at the High Court of Fiji at Suva on Thursday, the 8th day of November 2012 at 9.30am ..... for following orders

There be a stay of the Winding up Order delivered on 19th September 2012 by .....

......'

3. This summons should be struck off in limine as an abuse of process due to lack of locus standi.
   
4. The persons who can make an application in terms of the Section 252 of the Companies Act are clearly stated in the Section 252 (1) of the Companies Act.
   
5. Companies Act Section 251(1) states as follows :
   

'252(1) The Court may at any time after an order for winding up on the application either on the liquidator or the official receiver on any creditor or contributory and on proof to the satisfaction of the court that all proceedings in relation to the winding up ought to be stayed, make an order staying the proceedings, either altogether or for a limited time, on such terms and conditions as the court thinks fit.' (emphasis is mine)

6. This issue was dealt in Supreme Court of Fiji on 6th November, 1985. In the Matter of Investment Corporation of Fiji Limited (In Liquidation) [(1985) Vol. 31 Page 71] and the application for the stay of the winding up was made on 6th November, 1985 by the Company in liquidation and on the same day the decision of Cullinan J held at p 75 as follows
   

'Finally, and this I consider must defeat the application. Mr. Whitlam submit that under Section 252 the application can only be made by "the liquidator or the official receiver or any creditor or contributory". The application is however brought by the Company and not by any of the persons mentioned in this section. I accordingly dismiss the application.' (emphasis is added)

2. CONCLUSION
   

7. The Section 252 is clear as to who can make an application for stay and the parties are liquidator, official receiver, any creditor or contributory and since this summons had not complied with the requirements of Section 252 and made by the company (in liquidation) it should be dismissed in limine for want of locus standi. I will grant a cost of $500 for the Petitioner. This is clearly an abuse of process and this cost should be paid by Ms. Natasha Khan personally, in terms of Order 62 rule 11 (1) (a) read with Order 62 rule 11 (5) as the costs have been incurred unreasonably and or improperly and also have been wasted by failure of the counsel to conduct proceedings with reasonable competence.
   

Dated at Suva this 8th day of November, 2012.

.................................................
Master Deepthi Amaratunga
High Court, Suva